Restitution Discussion Group Archives
| Sender: |
Charles Mitchell |
| Date: |
Tue, 24 Oct 2006 15:53:26 +0100 |
| Re: |
DMG |
Hi Jason
The claim is to recover money paid as tax which turned
out not to have been due. D said that C was out of time. C said no because
it paid by mistake and so could rely on a special limitation rule for
mistaken payers. CA held that limitation rule didn't apply because C not
allowed to rely on mistake and could only rely on Woolwich as
ground for recovery. So potentially there are 3 issues: (1) does limitation
rule apply only where C relying on mistake as his ground of recovery,
or is it available whatever ground of recovery is relied on, provided
that mistake present on facts - this depends on wording of limitation
statute; (2) are claimants restricted to Woolwich as their ground
of recovery where it is available on facts, or should they be allowed
to rely on some alternative ground which is also available, e.g. mistake
or duress - this looks like a question that can only be answered by proceeding
from first principles but in CA Jonathan Parker LJ weirdly treated it
as an issue that fell to be determined by construing Lord Goff's speeches
in Woolwich and KB v Lincoln, in neither of which was
the question expressly in point - his decision reads like one of those
exam scripts where the candidate writes out everything he can remember
in the hope that some of it must be relevant; (3) does the English law
of unjust enrichment require claimants to establish a positive ground
for restitution, or does it require them to establish an absence of legal
ground for the transfer to D - the House of Lords might conceivably give
us a ruling on this question; but on the other hand it might say nothing
about it all and leave us to guess what it thinks from its treatment of
(1) and (2); then again, their Lordships may all say different things
while simultaneously agreeing with each other ... no, relax - that could
never happen.
Best wishes
At 11:14 24/10/2006 -0400, you wrote:
What is at issue in DMG again?
Charles
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