From: Enrichment - Restitution & Unjust Enrichment Legal Issues <ENRICHMENT@LISTS.MCGILL.CA> on behalf of Matthew Hoyle <MHoyle@OECLAW.CO.UK>

Sent: Wednesday 27 August 2025 14:28

To: ENRICHMENT@LISTS.MCGILL.CA

Subject: Re: [RDG] Recent cases

Counsel fees are an odd example. Although its often said they constituted a 'gentleman's obligation', the reality is more complex than that. Certainly by the 20^th century, payment was a professional obligation for a solicitor and non-payment of fees was regarded as professional misconduct.

I'm not sufficiently familiar with the history to say for certain that this was always the case, but as things presently stand fees still have important juristic effects. An unwillingness to assume liability for fees by a solicitor means the barrister is not subject to the cab rank rule (Code of Conduct, rC30.7.a). A failure to pay fees is a recognised ground for returning instructions unilaterally (rC26.5), and a solicitor who fails to pay can be listed on the Bar Council's List of Defaulting Solicitors (which in turn is a further group disapplying the cab rank rule from any instructions they offer: gC91).

In Scotland, I believe that a system similar to the old English one still obtains, and (although some on the list will know better than I) advocates will generally refuse instructions from solicitors whom the Faculty has listed as defaulting on payment.

So the payment of fees, even if not directly enforceable, had/has important juristic consequences for both parties.

Matthew Hoyle

Barrister

One Essex Court

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From: Enrichment - Restitution & Unjust Enrichment Legal Issues <ENRICHMENT@LISTS.MCGILL.CA> On Behalf Of Kelvin F.K. Low
Sent: 27 August 2025 13:09
To: ENRICHMENT@LISTS.MCGILL.CA
Subject: Re: [RDG] Recent cases

On D'Aloia, Timothy Chan and I have a comment in the LMCLQ. On the subject of 'property', this is what we say in reply:

"Three cases supposedly mandate the recognition of a third category of personal property absent any Hohfeldian legal relationship whatsoever provided there is a clear and well founded expectation. First, unenforceable contractual rights in Ex parte Huggins; In re Huggins. Secondly, barrister s outstanding fees, which under the old regime created no debt at all, in Gwinnutt v George. However, although neither creditor in Ex parte Huggins or Gwinnutt v George could bring actions against their debtors , a natural obligation nevertheless exists in both cases which creates a legal relationship. While there may be no Hohfeldian claim right in either case, both cases involved Hohfeldian privileges as both creditors would be immune to recovery of any sums paid on the basis of unjust enrichment even if they could not bring an action to recover said sums.

This leaves the difficult case of Attorney-General of Hong Kong v Nai-Keung, in which export quotas for textiles were held by the Privy Council to be other intangible property under the Hong Kong Theft Ordinance 1970. According to D Aloia, the quotas similarly entailed no rights but merely an expectation that a corresponding licence would be granted. But surely a mere expectation would not suffice otherwise spes successionis would also be property. What distinguishes the export quotas in Nai-Keung from mere spes are public law rights conferred upon holders of the former to challenge any wrongful denial of licences. These are, without doubt, a form of Hohfeldian relation."

A preprint of the case comment is available on SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5033278.

Kelvin

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From: Enrichment - Restitution & Unjust Enrichment Legal Issues <ENRICHMENT@LISTS.MCGILL.CA> on behalf of Lionel Smith <lionel.smith@MCGILL.CA>
Sent: Wednesday, August 27, 2025 7:33:51 PM
To: ENRICHMENT@LISTS.MCGILL.CA <ENRICHMENT@LISTS.MCGILL.CA>
Subject: [RDG] Recent cases

Some interesting effects of the decision in Byers can be seen in Humphrey v Bennett [2025] EWHC 448 (Ch), a long-running saga. This episode concerns some contentious amendments to the pleadings. There is some interesting discussion of s 29 of the LRA 2002, of want of authority as a ground of unjust enrichment liability, and of pleading issues. Since it is all about amendments, though, nothing is really resolved as a matter of law

On the crypto front, the lengthy judgment in D Aloia v Persons Unknown [2024] EWHC 2342 (Ch); [2025] 1 WLR 821 may be of interest. This jumped out at me personally:

[5] USDT attract property rights under English law. It is neither a chose in action nor a chose in possession, but rather a distinct form of property not premised on an underlying legal right. It can be the subject of tracing and can constitute trust property in the same way as other property.

The discussion of the nature of property ([104]-[173]) includes some interesting cases and a great deal of academic commentary, and concludes in part ([173]): I have concluded that: as a matter of existing English case law an expectation can suffice for the foundation of property rights even in the absence of a legal relationship

Lionel

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