Restitution Discussion Group Archives
| Sender: |
Charles Mitchell |
| Date: |
Wed, 25 Oct 2006 10:46:29 +0100 |
| Re: |
DMG |
Judgment
has been released. There is much of interest. Perhaps unsurprisingly
the HL rejects the CA's view that you cannot rely on mistake where Woolwich
is available on facts - though it's a pity that Rebecca Williams' arguments
supporting the CA did not get more of an airing: (2005) 16 KCLJ 194. The
limitation rule for mistaken payors applies whether or not mistake is
the cause of action (obiter in light of previous finding, I think). Lord
Scott dissents on basis that even if DMG made a mistake the money was
still due, drawing on Rob Stevens (2005) 5 OUCLJ 141. And the answer to
the big question is ...
at any rate for the moment ... that unlike civilian
systems, English law has no general principle that to retain money paid
without any legal basis (such as debt, gift, compromise, etc) is unjust
enrichment. per Lord Hoffmann at [21].
He and Lord Walker both acknowledge that it is an open
question whether English law might develop in this direction the future,
and at [158] Lord Walker expresses enthusiasm for PB's pyramid. But no
decision on the point necessary to resolve this case - which perhaps raises
the question of what a set of facts would look like where a decision on
the point is going to be necessary. PB would have replied 'read Sandwell
and Guinness
Mahon'!
Charles
Professor Charles Mitchell tel: 020 7848 2290
School of Law
King's College London
Strand
London WC2R 2LS
fax: 020 7848 2465
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