Restitution Discussion Group Archives
| Sender: |
Charles Mitchell |
| Date: |
Mon, 23 Oct 2006 17:36:35 +0100 |
| Re: |
Charter plc v City Index Ltd [2006] EWHC 2508 (Ch) |
At 17:01 23/10/2006 +0100, Andrew Tettenborn
wrote:
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.
Dear Andrew
I think we've arrived at the point where we'll have to
agree to disagree! On (a) I understand where you're coming from, and you
have Andy Burrows and Rob Chambers on your side, but in my view your position
is historically inaccurate (as I explain in forthcoming CLP). On (b) it's
not clear to me why you think a defendant who still has the money wouldn't
owe a personal liability as a knowing recipient as well as a proprietary
liability in respect of the money - i.e. your characterization of liability
for knowing receipt as a liability which is 'specifically aimed at a defendant
who no longer has an asset' strikes me as peculiar.
Incidentally, while we're on the subject, you may be
interested to read the HCA transcripts relating to the appeal in Say-Dee,
which suggest a certain keenness on the part of Gummow and Heydon JJ to
disseminate their own (Tettenbornian?) views on the point, notwithstanding
counsel's difficulties in pulling the grounds of appeal together: here
and here.
Best wishes
Charles
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