Restitution Discussion Group Archives
| Sender: |
Andrew Tettenborn |
| Date: |
Mon, 23 Oct 2006 17:01:47 +0100 |
| Re: |
Charter plc v City Index Ltd [2006] EWHC 2508 (Ch) |
Charles Mitchell wrote:
I'm afraid I have some problems with
this. For the reasons set out in Hayton & Marshall at 707-711 (following
Lord Millett and Steven Elliott) Lord B-W made a false move when he
dragged causation into Target as the claim made against the
trustee was not wrong-based. But even if that were not so, I still wouldn't
agree that it is 'self-evident' that a knowing recipient should escape
liability because the trustee who has paid him can rely on a causation
argument to escape his own liability to the beneficiaries. One might
as well say that the recipient of a mistaken payment should not have
to repay the money because a solicitor who carelessly advised the mistaken
payor to pay the money is not liable in negligence because the payor
would have paid the money anyway. Whether or not the solicitor's negligence
causes the payor's loss, the payor is still out of pocket, and the recipient
correspondingly enriched, as a result of the payor's mistake. The recipient
must repay regardless of the solicitor's position. Why is this not also
true of the knowing recipient?
Dear Charles,
You make 2 beguiling points:
(a) The correctness / desirability of the Target
solution. On this I'm afraid I just differ with Hayton & Marshall:
despite some rather confused C19 dicta, a claim against a defendant trustee
that she make good the claimant for a sum she no longer has in her hands
but ought to have seems to me to bear all the hallmarks of a claim for
a wrong. In my view we should recognise this fact.
(b) The equiparation of the knowing recipient and the
recipient of a mistaken payment. This depends on the correctness of the
assertion that the knowing recipient's liability depends (or ought to
depend) on unjust enrichment. A lot of people regard this as axiomatic:
I don't. We have two liabilities in the English law of trusts: that of
the non-bona fide purchaser defendant who still has the trust property,
and that of the defendant who once had it but doesn't have it any more,
otherwise known as the knowing recipient. My own view is that the most
natural way of looking at the latter's liability is wrong-based. It seems
to me perverse to take a liability specifically aimed at a defendant who
no longer has an asset, say it's unjust enrichment-based and then start
arguing how far she should be allowed to pray in aid the fact that she's
got rid of it.
I suspect any European lawyer from outside the British
Isles would regard this as a sensible approach, and for once I think they'd
be right.
Best wishes
Andrew
-- Tel: 01392-263189 / +44-392-263189 (outside UK) Snailmail: School of Law, Exeter Law School homepage: http://www.law.ex.ac.uk
LAWYER, n. One skilled in circumvention of the law (Ambrose
Bierce, 1906).
Andrew Tettenborn MA LLB
Bracton Professor of Law
University of Exeter, England
Cellphone: 07870-130528 / +44-7870-130528 (outside UK)
Fax: 01392-263196 / +44-392-263196 (outside UK)
University of Exeter,
Amory Building,
Rennes Drive,
Exeter EX4 4RJ
England
My homepage: http://www.law.ex.ac.uk/staff/tettenborn.shtml
<== Previous message Back to index Next message ==>
»
»
»
»
| For
editorial policy, see here. For the unedited archive, see here. The archive editor is Steve Hedley. |
