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It is difficult to see how the Beatson/Friedmann line can be sustained in the light of the decision of the House of Lords in United Australia v Barclay's Bank [1941] AC 1. Moreover, if the claim in such cases is not parasitic, then what is it based on? How else, for example, are we to explain the order that the defendant give up his gain in a case such as A-G v Guardian Newspapers (profits made in breach of confidence)?

Bill Swadling
Brasenose College
Oxford

----- Original Message -----
Sent: Sunday, May 07, 2006 3:15 PM
Subject: Re: [RDG] ODG: A Change of Topic

For the benefit of a former and cherished teacher of mine (Swan that is), I feel compelled to point out that it would be sporting for Russ to concede that not everyone shares the Birksian line which he has advanced concerning the nature of waiver of tort. Thus, for example, Beatson speaks for many (including myself) when he writes: "...the restitutionary claim given by way of 'waiver of tort' is not parasitic and does not depend on the existence of a tort" see p.242 of "The Use and Abuse ...". Dan Friedmann is another who has written in the same vein in his articles on the subject (e.g. in the Jones symposium).

With respect to those who hold differing views, it seems obvious to me, for the reasons advanced by Jack and Dan and others, that waiver of tort, like breach of fiduciary obligation, is a cause of action, and is not helpfully viewed as merely parasitic on the existence of another cause of action in tort or, in the case of fiduciary obligation, in "equity". Back (unhappily) to marking!