But I agree with what I understand to be a unanimous view so far, that such a claim, for the profits of wrongdoing, is analytically distinct from a claim in unjust enrichment. Distinct, in the sense that there needs to be a wrong established, which is not true in unjust enrichment; distinct in that we can formulate facts that would support one of the two claims, while not supporting the other.

It is this distinctness that both Cullity decisions are founded upon (see esp Serhan, [27]-[28]). In both cases, as in Rosenfeldt v Olsen many years ago, defendants tried to defeat a claim to the profits of wrongdoing by noting that the plaintiffs had not suffered any deprivation that corresponded to the defendants' gain (Serhan, [26]-[28]; Lewis v Cantertrot, [6]). Such a corresponding deprivation may well be (as I think it is, though others don't) necessary for unjust enrichment; Cullity J did not even need to decide that; what he decided, and I think he was quite right, and I am not sure anyone so far disagrees, is that no deprivation of the plaintiff is needed when the claim is one to the profits of a wrong.

Lionel

On 7/5/06 14:14, "Rob Chambers" wrote:

John makes a good point, but not I think about the "Birksian line".

Birks also believed in the independent cause of action in cases which used the phrase, 'waiver of tort'. He wrote, in Unjust Enrichment (2nd edn, 2005) 83, that there are "two paths to restitution, either by standing on the tort but asking for restitution rather than the more usual compensation or by ignoring the tort and treating the facts as an enrichment at your expense and absolutely without your consent." He agreed with Beatson J and Friedmann (see the preface to the first edition of Unjust Enrichment), although Beatson, writing in 1978, argued for the existence of an "independent restitutionary claim" rather than for unjust enrichment.

It is useful to expand on John's quotation from Beatson, The Use and Abuse of Unjust Enrichment, pp 242-243:

This essay has sought to show that the restitutionary claim given by way of 'waiver of tort', is not parasitic and does not depend on the existence of a tort. The 'waiver of tort' mechanism should simply be seen as the core of a class of restitutionary claims based on the wrongful acquisition of a benefit. This is certainly so where the defendant has taken or used the plaintiff's money or property. It is arguably also the case in other situations in which the defendant has been enriched by the misappropriation of an interest of the plaintiff's which is properly treated as part of his wealth. In both types of case it is necessary to show that the enrichment is attributable to the interest in the sense that the proximate cause of the enrichment is that interest.

Birks agreed with all of this and so, I believe, does Russ, writing below, who points out Cullity J's error: he allowed the plaintiffs to proceed with a claim for restitution of an enrichment that was not acquired at the plaintiffs' expense (unjust enrichment) nor obtained through a wrong done to them (wrongful enrichment). There was nothing connecting the plaintiffs to the defendants' gain and the use of an incantation like 'waiver of tort' does not make it so.