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I am pretty certain that the reason the case looks the way it does is because of the way it was presented by counsel. Claimants will typically put their claim in as many possible ways as they can, hoping that the judge will bite on one of the ways in which it is put. All Lord Scott has done is go through the claims as pleaded/argued in the skeletons. Rather lazy, as he should have been able to see that some of these claims were not alternatives at all, but just re-packaged versions of the same argument.

RS

-----Original Message-----
From: Eoin O'Dell
Sent: 25 September 2008 09:17
Subject: Re: [RDG] Yeoman's Row

Further to Lionel's reply to Gerhard's comments about Lord Scott's speech in Yeoman's Row, I must say that I find the analyses of all of the issues in the case (estoppel, trusts, unjust enrichment) very unsatisfying. Moreover, I agree with Lionel that when Lord Scott says at [9] that

These amended claims left it, in my opinion, open to the court, if the proprietary estoppel and constructive trust bases of claim should fail, to award relief on the basis of unjust enrichment, or a quantum meruit, or a consideration that had wholly failed.

he is treating unjust enrichment, quantum meruit, and failure of consideration as three distinct bases for a claim. I also agree with Lionel that this is borne out by his actual analysis at [3]-[4] and [40]-[43].

Two things might be said about this. The first response might be a weary sigh of "here we go again", trying to explain to judges who ought to know better that unjust enrichment, quantum meruit and failure of consideration are not three distinct bases of claim at all, but instead probably amount to the same thing. I confess this was my initial reaction, and it is still my default position when I discuss unjust enrichment issues with Irish practitioners or read the opinions of the Irish judiciary in the area. As to Lord Scott's speech in Yeoman's Row, the various points here would include that establishing either a failure of consideration or quantum meruit amounts to establishing an unjust enrichment; that whilst failure of consideration historically related to money claims and that quantum meruit historically related to services claims, they were functionally the same thing; that learning under both heads contributed to the development of the enquiries mandated by the principle against unjust enrichment; and that the analysis of the unjust enrichment issue should follow those enquiries. A good example of this whole approach, responding to a similar set of distinctions drawn by the Court of Appeal in Rover International Ltd v Cannon Film Sales Ltd (No 3) [1989] 1 WLR 912, [1989] 3 All ER 423 (CA) is Peter Birks' typically punchy "Restitution after ineffective contracts: issues for the 1990's" (1990) 2 JCL 227.

But I want to suggest that there might be a second response worth considering. Instead of asking of the judiciary "why do they never learn?" and mean by this that they are very naughty 9 year olds who never learn, we should set this exasperation aside and still ask "why do they never learn?" but mean it this time as an open-minded enquiry as to why the kind of approach taken by Lord Scott still persists. It may be that it persists because of muddle-headedness on the part of the bar and the bench; and if so, the first response might very well be appropriate. But it may be that it persists for other reasons, and they might be good ones, and I'd like to suggest that there may be something to be gained from discovering and discussing them. However, I am a loss as to what those other reasons might be.

Any suggestions?