Subject: "Knowing Receipt" in Bank of America v Arnell
Date: Fri, 18 Feb 2000 14:51:33 -0000
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Members of the list have already been referred to the recently-reported =
decision of Aikens J in Bank of America v Arnell [1999] Lloyd's Reports =
Banking 399. I have only just obtained access to that report, and have =
therefore held off commenting until now.
Aikens J discussed the state of mind necessary to invoke liability for =
"knowing receipt". At para 15, page 406, he held:
"The latest consideration of the point by the Court of Appeal is in =
Twinsectra Ltd v Yardley & Ors (Potter LJ; Sir Iain Glidewell and Sir =
David Hirst: 28 April 1999). I think that it is clear from the judgment =
of Potter LJ in that case (see particularly at paras 105-108) that the =
fundamental question that the court has to ask now is: was the recipient =
acting *honestly* when he received the funds."
Potter LJ's jugdment is, in many ways, excellent. But one thing his =
Lordship did not do was to decide that dishonesty was a necessary =
element of the "knowing receipt" cause of action.
It is true that the paragraphs referred to by Aikens J contain a =
detailed discussion of dishonesty, and that those paragraphs come under =
the heading " 'Knowing' Receipt or Assistance" (before para 101). But =
it is abundantly clear that Potter LJ was discussing dishonesty only in =
relation to dishonest assistance under Royal Brunei v Tan. Thus, at =
para 107, Potter LJ says:
"That being so, and because the judge found that Mr Leach did close =
his eyes to the effect of the Sims' Undertaking, it seems to me that the =
findings made by the judge and the evidence to which we have been =
referred put this court in a position to proceed to effect the exercise =
which the judge declined to perform, namely to consider whether or not =
Mr Leach's state of mind was such as to establish accessory liability on =
the basis stated in Royal Brunei Airlines."
It is also clear that, in relation to "knowing receipt", the most one =
can say about Twinsectra is that Potter LJ was content to assume that =
*notice* was required. Thus, at para 114:
" In relation to the receipt-based claim, it is plain that Mr Leach =
received the trust property for his own benefit with notice of the =
trust, took subject to it and is liable personally to account for it to =
Twinsectra."
The one failing of Potter LJ's judgment in Twinsectra (understandable in =
light of the facts) was that it passed up the opportunity to consider =
Lord Nicholls' extra-judicial view that "knowing receipt" (or at least =
one version of it) is actually a strict liability claim in unjust =
enrichment. =20
But it would be a huge mistake for judges to go to the other extreme by =
wrongly assuming that Potter LJ required dishonesty as an element of the =
cause of action.
Jonathon Moore
------=_NextPart_000_0005_01BF7A1F.A6148240
Content-Type: text/html;
charset="iso-8859-1"
Content-Transfer-Encoding: quoted-printable
Members of the list have already been =
referred to=20
the recently-reported decision of Aikens J in Bank of America v Arnell =
[1999]=20
Lloyd's Reports Banking 399. I have only just obtained access to =
that=20
report, and have therefore held off commenting until now.
Aikens J discussed the state of mind =
necessary to=20
invoke liability for "knowing receipt". At para 15, page 406, he=20
held:
"The latest consideration of the =
point by the=20
Court of Appeal is in Twinsectra Ltd v Yardley & Ors (Potter LJ; =
Sir Iain=20
Glidewell and Sir David Hirst: 28 April 1999). I think that it =
is clear=20
from the judgment of Potter LJ in that case (see particularly at paras =
105-108) that the fundamental question that the court has to ask now =
is: was=20
the recipient acting *honestly* when he received the=20
funds."
Potter LJ's jugdment is, in many ways,=20
excellent. But one thing his Lordship did not do was to decide =
that=20
dishonesty was a necessary element of the "knowing receipt" cause of=20
action.
It is true that the paragraphs referred =
to by=20
Aikens J contain a detailed discussion of dishonesty, and that those =
paragraphs=20
come under the heading " 'Knowing' Receipt or Assistance" (before para=20
101). But it is abundantly clear that Potter LJ was discussing =
dishonesty=20
only in relation to dishonest assistance under Royal Brunei v Tan. =
Thus,=20
at para 107, Potter LJ says:
"That being so, and because the =
judge found=20
that Mr Leach did close his eyes to the effect of the Sims’ =
Undertaking, it=20
seems to me that the findings made by the judge and the evidence to =
which we=20
have been referred put this court in a position to proceed to effect =
the=20
exercise which the judge declined to perform, namely to consider =
whether or=20
not Mr Leach’s state of mind was such as to establish accessory =
liability on=20
the basis stated in Royal Brunei=20
Airlines."
It is also clear that, in relation to =
"knowing=20
receipt", the most one can say about Twinsectra is that Potter LJ was =
content to=20
assume that *notice* was required. Thus, at para 114:
" In relation to the receipt-based =
claim, it is=20
plain that Mr Leach received the trust property for his own benefit =
with=20
notice of the trust, took subject to it and is liable personally to =
account=20
for it to Twinsectra."
The one failing of Potter LJ's judgment =
in=20
Twinsectra (understandable in light of the facts) was that it passed up =
the=20
opportunity to consider Lord Nicholls' extra-judicial view that "knowing =
receipt" (or at least one version of it) is actually a strict liability =
claim in=20
unjust enrichment.
But it would be a huge mistake for =
judges to go to=20
the other extreme by wrongly assuming that Potter LJ required dishonesty =
as an=20
element of the cause of action.
Jonathon Moore
------=_NextPart_000_0005_01BF7A1F.A6148240--
>From lionel.smith@law.oxford.ac.uk Fri Feb 18 15:14:31 2000
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From: Lionel Smith
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From: "Jonathon P. Moore"
Subject: "Knowing Receipt" in Bank of America v Arnell
Members of the list have already been referred to the recently-reported
decision of Aikens J in Bank of America v Arnell [1999] Lloyd's Reports
Banking 399. I have only just obtained access to that report, and have
therefore held off commenting until now.
Aikens J discussed the state of mind necessary to invoke liability
for "knowing receipt". At para 15, page 406, he held:
"The latest consideration of the point by the Court of Appeal is in
Twinsectra Ltd v Yardley & Ors (Potter LJ; Sir Iain Glidewell and Sir
David Hirst: 28 April 1999). I think that it is clear from the judgment
of Potter LJ in that case (see particularly at paras 105-108) that the
fundamental question that the court has to ask now is: was the recipient
acting *honestly* when he received the funds."
Potter LJ's jugdment is, in many ways, excellent. But one thing his
Lordship did not do was to decide that dishonesty was a necessary
element of the "knowing receipt" cause of action.
It is true that the paragraphs referred to by Aikens J contain a
detailed discussion of dishonesty, and that those paragraphs come under
the heading " 'Knowing' Receipt or Assistance" (before para 101). But
it is abundantly clear that Potter LJ was discussing dishonesty only in
relation to dishonest assistance under Royal Brunei v Tan. Thus, at
para 107, Potter LJ says:
"That being so, and because the judge found that Mr Leach did close
his eyes to the effect of the Sims' Undertaking, it seems to me that the
findings made by the judge and the evidence to which we have been
referred put this court in a position to proceed to effect the exercise
which the judge declined to perform, namely to consider whether or not
Mr Leach's state of mind was such as to establish accessory liability on
the basis stated in Royal Brunei Airlines."
It is also clear that, in relation to "knowing receipt", the most one
can say about Twinsectra is that Potter LJ was content to assume that
*notice* was required. Thus, at para 114:
" In relation to the receipt-based claim, it is plain that Mr Leach
received the trust property for his own benefit with notice of the
trust, took subject to it and is liable personally to account for it to
Twinsectra."
The one failing of Potter LJ's judgment in Twinsectra (understandable in
light of the facts) was that it passed up the opportunity to consider
Lord Nicholls' extra-judicial view that "knowing receipt" (or at least
one version of it) is actually a strict liability claim in unjust
enrichment.
But it would be a huge mistake for judges to go to the other extreme by
wrongly assuming that Potter LJ required dishonesty as an element of the
cause of action.
Jonathon Moore
--============_-1261235770==_ma============
Content-Type: text/enriched; charset="us-ascii"
approved: eregion
PalatinoFrom: "Jonathon P. Moore"
<
Subject: "Knowing Receipt" in Bank of America v Arnell
Members of the list have already been referred to the recently-reported
decision of Aikens J in Bank of America v Arnell [1999] Lloyd's Reports
Banking 399. I have only just obtained access to that report, and have
therefore held off commenting until now.
Aikens J discussed the state of mind necessary to invoke liability for
"knowing receipt". At para 15, page 406, he held:
"The latest consideration of the point by the Court of Appeal is in
Twinsectra Ltd v Yardley & Ors (Potter LJ; Sir Iain Glidewell and Sir
David Hirst: 28 April 1999). I think that it is clear from the
judgment
of Potter LJ in that case (see particularly at paras 105-108) that the
fundamental question that the court has to ask now is: was the
recipient
acting *honestly* when he received the funds."
Potter LJ's jugdment is, in many ways, excellent. But one thing his
Lordship did not do was to decide that dishonesty was a necessary
element of the "knowing receipt" cause of action.
It is true that the paragraphs referred to by Aikens J contain a
detailed discussion of dishonesty, and that those paragraphs come under
the heading " 'Knowing' Receipt or Assistance" (before para 101). But
it is abundantly clear that Potter LJ was discussing dishonesty only in
relation to dishonest assistance under Royal Brunei v Tan. Thus, at
para 107, Potter LJ says:
"That being so, and because the judge found that Mr Leach did close
his eyes to the effect of the Sims' Undertaking, it seems to me that
the
findings made by the judge and the evidence to which we have been
referred put this court in a position to proceed to effect the exercise
which the judge declined to perform, namely to consider whether or not
Mr Leach's state of mind was such as to establish accessory liability
on
the basis stated in Royal Brunei Airlines."
It is also clear that, in relation to "knowing receipt", the most one
can say about Twinsectra is that Potter LJ was content to assume that
*notice* was required. Thus, at para 114:
" In relation to the receipt-based claim, it is plain that Mr Leach
received the trust property for his own benefit with notice of the
trust, took subject to it and is liable personally to account for it to
Twinsectra."
The one failing of Potter LJ's judgment in Twinsectra (understandable
in
light of the facts) was that it passed up the opportunity to consider
Lord Nicholls' extra-judicial view that "knowing receipt" (or at least
one version of it) is actually a strict liability claim in unjust
enrichment.
But it would be a huge mistake for judges to go to the other extreme by
wrongly assuming that Potter LJ required dishonesty as an element of
the
cause of action.
Jonathon Moore
--============_-1261235770==_ma============--
>From mskj1@singnet.com.sg Fri Feb 18 22:37:12 2000
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From: "joseph"
To:
References:
Subject: Re: Honest Receipt?
Date: Sat, 19 Feb 2000 06:41:42 +0800
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I am slightly confused. Is 'knowing receipt' different from 'honest =
receipt'? For, if we are taking of the same thing (but perhaps two =
different sides of it) wasn't the defence of 'honest receipt' (unless it =
is not the same as 'knowing receipt') comprehensively rejected by the =
House of Lords in Klienwort Benson? As I understand it, the seeds of =
this defence was suggested by Brennan J in David Securities Pty Ltd v =
Commonwealth Bank of Australia (1992) 109 ALR 57, when he said (at p =
92): 'It is a defence for a claim for restitution of money paid or =
property transferred under a mistake of law that the defendant honestly =
believed, when he learnt of the payment or transfer, that he was =
entitled to receive and retain the money or the property.'
As to the availability of this defence, remember that Lord Goff said in =
Kleinwort Benson (at [1997] 3 WLR 1095, 1124) that it suffers from a =
chronic lack of support, as it is generally regarded as being wider than =
is necessary to meet the perceived mischief. He concluded (at p 1125):
'... it would be most unwise for the common law, having recognised the =
right to recover money paid under a mistake of law on the ground of =
unjust enrichment, immediately to proceed to the recognition of so wide =
a defence as which would exclude the right of recovery in a very large =
proportion of cases. The proper course is surely to identify particular =
sets of circumstances which, as a matter of principle or policy, may =
lead to the conclusion that recovery should not be allowed: and in so =
doing to draw on the experience of the past, looking in particular from =
the analogous case of money paid under mistake of fact.'
Lord Lloyd (at p 1136), Lord Hoffman (at p 1136-7) and Lord Hope (at p =
1151) concurred with Lord Goff on this point.
Louis Joseph
----- Original Message -----=20
From: Lionel Smith=20
To: restitution@maillist.ox.ac.uk=20
Sent: Friday, February 18, 2000 11:12 PM
approved: eregion
From: "Jonathon P. Moore"
Subject: "Knowing Receipt" in Bank of America v Arnell
Members of the list have already been referred to the =
recently-reported
decision of Aikens J in Bank of America v Arnell [1999] Lloyd's =
Reports
Banking 399. I have only just obtained access to that report, and have
therefore held off commenting until now.
Aikens J discussed the state of mind necessary to invoke liability for =
"knowing receipt". At para 15, page 406, he held:
"The latest consideration of the point by the Court of Appeal is in=20
Twinsectra Ltd v Yardley & Ors (Potter LJ; Sir Iain Glidewell and Sir=20
David Hirst: 28 April 1999). I think that it is clear from the =
judgment=20
of Potter LJ in that case (see particularly at paras 105-108) that the
fundamental question that the court has to ask now is: was the =
recipient=20
acting *honestly* when he received the funds."
Potter LJ's jugdment is, in many ways, excellent. But one thing his=20
Lordship did not do was to decide that dishonesty was a necessary=20
element of the "knowing receipt" cause of action.
It is true that the paragraphs referred to by Aikens J contain a=20
detailed discussion of dishonesty, and that those paragraphs come =
under
the heading " 'Knowing' Receipt or Assistance" (before para 101). But
it is abundantly clear that Potter LJ was discussing dishonesty only =
in
relation to dishonest assistance under Royal Brunei v Tan. Thus, at=20
para 107, Potter LJ says:
"That being so, and because the judge found that Mr Leach did close=20
his eyes to the effect of the Sims' Undertaking, it seems to me that =
the=20
findings made by the judge and the evidence to which we have been=20
referred put this court in a position to proceed to effect the =
exercise
which the judge declined to perform, namely to consider whether or not
Mr Leach's state of mind was such as to establish accessory liability =
on=20
the basis stated in Royal Brunei Airlines."
It is also clear that, in relation to "knowing receipt", the most one=20
can say about Twinsectra is that Potter LJ was content to assume that=20
*notice* was required. Thus, at para 114:
" In relation to the receipt-based claim, it is plain that Mr Leach=20
received the trust property for his own benefit with notice of the=20
trust, took subject to it and is liable personally to account for it =
to
Twinsectra."
The one failing of Potter LJ's judgment in Twinsectra (understandable =
in=20
light of the facts) was that it passed up the opportunity to consider=20
Lord Nicholls' extra-judicial view that "knowing receipt" (or at least
one version of it) is actually a strict liability claim in unjust=20
enrichment.
But it would be a huge mistake for judges to go to the other extreme =
by
wrongly assuming that Potter LJ required dishonesty as an element of =
the=20
cause of action.
Jonathon Moore=20
------=_NextPart_000_0038_01BF7AA4.62701100
Content-Type: text/html;
charset="iso-8859-1"
Content-Transfer-Encoding: quoted-printable
I am slightly confused. Is 'knowing receipt' different from 'honest =
receipt'? For, if we are taking of the same thing (but perhaps two =
different=20
sides of it) wasn't the defence of 'honest receipt' (unless it is =
not the=20
same as 'knowing receipt') comprehensively rejected by the House of =
Lords in=20
Klienwort Benson? As I understand it, the seeds of this defence =
was=20
suggested by Brennan J in David Securities Pty Ltd v Commonwealth =
Bank of=20
Australia (1992) 109 ALR 57, when he said (at p 92): 'It is a =
defence for a=20
claim for restitution of money paid or property transferred under a =
mistake of=20
law that the defendant honestly believed, when he learnt of the payment =
or=20
transfer, that he was entitled to receive and retain the money or the=20
property.'
As to the availability of this defence, remember that Lord Goff =
said in=20
Kleinwort Benson (at [1997] 3 WLR 1095, 1124) that it =
suffers from=20
a chronic lack of support, as it is generally regarded as being wider =
than is=20
necessary to meet the perceived mischief. He concluded (at p =
1125):
'... it would be most unwise for the common law, having =
recognised the=20
right to recover money paid under a mistake of law on the ground of =
unjust=20
enrichment, immediately to proceed to the recognition of so wide a =
defence as=20
which would exclude the right of recovery in a very large proportion =
of cases.=20
The proper course is surely to identify particular sets of =
circumstances=20
which, as a matter of principle or policy, may lead to the conclusion =
that=20
recovery should not be allowed: and in so doing to draw on the=20
experience of the past, looking in particular from the analogous case =
of money=20
paid under mistake of fact.'
Lord Lloyd (at p 1136), Lord Hoffman (at p 1136-7) and Lord Hope =
(at p=20
1151) concurred with Lord Goff on this point.
Louis Joseph
----- Original Message -----
From:=20
Lionel Smith
To: restitution@maillist.ox.ac.uk =
Sent: Friday, February 18, 2000 =
11:12=20
PM
approved:=20
eregion
From: "Jonathon P. =
Moore"=20
<jonathon.moore@law.oxford=
.ac.uk>
Subject:=20
"Knowing Receipt" in Bank of America v Arnell
Members of the =
list have=20
already been referred to the recently-reported
decision of Aikens J =
in Bank=20
of America v Arnell [1999] Lloyd's Reports
Banking 399. I have only =
just=20
obtained access to that report, and have
therefore held off =
commenting=20
until now.
Aikens J discussed the state of mind necessary to =
invoke=20
liability for "knowing receipt". At para 15, page 406, he =
held:
"The=20
latest consideration of the point by the Court of Appeal is in =
Twinsectra=20
Ltd v Yardley & Ors (Potter LJ; Sir Iain Glidewell and Sir =
David=20
Hirst: 28 April 1999). I think that it is clear from the judgment =
of=20
Potter LJ in that case (see particularly at paras 105-108) that=20
the
fundamental question that the court has to ask now is: was the=20
recipient
acting *honestly* when he received the =
funds."
Potter=20
LJ's jugdment is, in many ways, excellent. But one thing his =
Lordship did=20
not do was to decide that dishonesty was a necessary
element of =
the=20
"knowing receipt" cause of action.
It is true that the =
paragraphs=20
referred to by Aikens J contain a
detailed discussion of =
dishonesty, and=20
that those paragraphs come under
the heading " 'Knowing' Receipt or =
Assistance" (before para 101). But
it is abundantly clear that =
Potter LJ=20
was discussing dishonesty only in
relation to dishonest assistance =
under=20
Royal Brunei v Tan. Thus, at
para 107, Potter LJ =
says:
"That being=20
so, and because the judge found that Mr Leach did close
his eyes =
to the=20
effect of the Sims' Undertaking, it seems to me that the
findings =
made by=20
the judge and the evidence to which we have been
referred put this =
court=20
in a position to proceed to effect the exercise
which the judge =
declined to=20
perform, namely to consider whether or not
Mr Leach's state of mind =
was=20
such as to establish accessory liability on
the basis stated in =
Royal=20
Brunei Airlines."
It is also clear that, in relation to =
"knowing=20
receipt", the most one
can say about Twinsectra is that Potter LJ =
was=20
content to assume that
*notice* was required. Thus, at para =
114:
"=20
In relation to the receipt-based claim, it is plain that Mr Leach =
received=20
the trust property for his own benefit with notice of the
trust, =
took=20
subject to it and is liable personally to account for it=20
to
Twinsectra."
The one failing of Potter LJ's judgment in=20
Twinsectra (understandable in
light of the facts) was that it =
passed up=20
the opportunity to consider
Lord Nicholls' extra-judicial view =
that=20
"knowing receipt" (or at least
one version of it) is actually a =
strict=20
liability claim in unjust
enrichment.
But it would be a =
huge=20
mistake for judges to go to the other extreme by
wrongly assuming =
that=20
Potter LJ required dishonesty as an element of the
cause of=20
action.
Jonathon Moore=20
------=_NextPart_000_0038_01BF7AA4.62701100--
>From mskj1@singnet.com.sg Sat Feb 19 09:03:30 2000
Received: from smtp3.singnet.com.sg ([165.21.7.83] helo=zinc.singnet.com.sg)
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Message-ID: <000a01bf7ab9$0fd021a0$fb2415a5@user>
From: "joseph"
To: "Jonathon P. Moore" ,
References: <001c01bf7a65$c9e9ede0$fd2415a5@user> <001b01bf7ab5$7cdeaae0$aa1b4cc0@oemcomputer>
Subject: Re: Re: Honest Receipt?
Date: Sat, 19 Feb 2000 17:09:13 +0800
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Yup, I think I have got it. One ("knowing receipt") is a cause of action =
- i.e., the plaintiff says: "you have to give the money back because =
when you received it, you knew you had no right to it"; and the other =
("honest receipt") is a plea by the defendant who says: "look, when I =
received the money I thought 'honestly' that I was entitled to it". Am I =
right? Gracias amigo!
Louis Joseph
----- Original Message -----=20
From: Jonathon P. Moore=20
To: joseph=20
Sent: Saturday, February 19, 2000 4:44 PM
Subject: Re: Re: Honest Receipt?
I don't understand your question.
'Knowing receipt' is a claim, though poorly named. 'Honest receipt' =
is a suggested defence, which has been rejected by the courts.
----- Original Message -----=20
From: joseph=20
To: Jonathon Moore=20
Sent: Friday, February 18, 2000 11:13 PM
Subject: Fw: Re: Honest Receipt?
----- Original Message -----=20
From: joseph=20
To: restitution@maillist.ox.ac.uk=20
Sent: Saturday, February 19, 2000 6:41 AM
Subject: RDG: Re: Honest Receipt?
I am slightly confused. Is 'knowing receipt' different from 'honest =
receipt'? For, if we are taking of the same thing (but perhaps two =
different sides of it) wasn't the defence of 'honest receipt' (unless it =
is not the same as 'knowing receipt') comprehensively rejected by the =
House of Lords in Klienwort Benson? As I understand it, the seeds of =
this defence was suggested by Brennan J in David Securities Pty Ltd v =
Commonwealth Bank of Australia (1992) 109 ALR 57, when he said (at p =
92): 'It is a defence for a claim for restitution of money paid or =
property transferred under a mistake of law that the defendant honestly =
believed, when he learnt of the payment or transfer, that he was =
entitled to receive and retain the money or the property.'
As to the availability of this defence, remember that Lord Goff said =
in Kleinwort Benson (at [1997] 3 WLR 1095, 1124) that it suffers from a =
chronic lack of support, as it is generally regarded as being wider than =
is necessary to meet the perceived mischief. He concluded (at p 1125):
'... it would be most unwise for the common law, having recognised =
the right to recover money paid under a mistake of law on the ground of =
unjust enrichment, immediately to proceed to the recognition of so wide =
a defence as which would exclude the right of recovery in a very large =
proportion of cases. The proper course is surely to identify particular =
sets of circumstances which, as a matter of principle or policy, may =
lead to the conclusion that recovery should not be allowed: and in so =
doing to draw on the experience of the past, looking in particular from =
the analogous case of money paid under mistake of fact.'
Lord Lloyd (at p 1136), Lord Hoffman (at p 1136-7) and Lord Hope (at =
p 1151) concurred with Lord Goff on this point.
Louis Joseph
----- Original Message -----=20
From: Lionel Smith=20
To: restitution@maillist.ox.ac.uk=20
Sent: Friday, February 18, 2000 11:12 PM
approved: eregion
From: "Jonathon P. Moore"
Subject: "Knowing Receipt" in Bank of America v Arnell
Members of the list have already been referred to the =
recently-reported
decision of Aikens J in Bank of America v Arnell [1999] Lloyd's =
Reports
Banking 399. I have only just obtained access to that report, and =
have
therefore held off commenting until now.
Aikens J discussed the state of mind necessary to invoke liability =
for "knowing receipt". At para 15, page 406, he held:
"The latest consideration of the point by the Court of Appeal is =
in=20
Twinsectra Ltd v Yardley & Ors (Potter LJ; Sir Iain Glidewell and =
Sir=20
David Hirst: 28 April 1999). I think that it is clear from the =
judgment=20
of Potter LJ in that case (see particularly at paras 105-108) that =
the
fundamental question that the court has to ask now is: was the =
recipient=20
acting *honestly* when he received the funds."
Potter LJ's jugdment is, in many ways, excellent. But one thing =
his=20
Lordship did not do was to decide that dishonesty was a necessary=20
element of the "knowing receipt" cause of action.
It is true that the paragraphs referred to by Aikens J contain a=20
detailed discussion of dishonesty, and that those paragraphs come =
under
the heading " 'Knowing' Receipt or Assistance" (before para 101). =
But
it is abundantly clear that Potter LJ was discussing dishonesty =
only in
relation to dishonest assistance under Royal Brunei v Tan. Thus, =
at=20
para 107, Potter LJ says:
"That being so, and because the judge found that Mr Leach did =
close=20
his eyes to the effect of the Sims' Undertaking, it seems to me =
that the=20
findings made by the judge and the evidence to which we have been=20
referred put this court in a position to proceed to effect the =
exercise
which the judge declined to perform, namely to consider whether or =
not
Mr Leach's state of mind was such as to establish accessory =
liability on=20
the basis stated in Royal Brunei Airlines."
It is also clear that, in relation to "knowing receipt", the most =
one=20
can say about Twinsectra is that Potter LJ was content to assume =
that=20
*notice* was required. Thus, at para 114:
" In relation to the receipt-based claim, it is plain that Mr =
Leach=20
received the trust property for his own benefit with notice of the =
trust, took subject to it and is liable personally to account for =
it to
Twinsectra."
The one failing of Potter LJ's judgment in Twinsectra =
(understandable in=20
light of the facts) was that it passed up the opportunity to =
consider=20
Lord Nicholls' extra-judicial view that "knowing receipt" (or at =
least
one version of it) is actually a strict liability claim in unjust=20
enrichment.
But it would be a huge mistake for judges to go to the other =
extreme by
wrongly assuming that Potter LJ required dishonesty as an element =
of the=20
cause of action.
Jonathon Moore=20
------=_NextPart_000_0007_01BF7AFC.0B855D20
Content-Type: text/html;
charset="iso-8859-1"
Content-Transfer-Encoding: quoted-printable
Yup, I think I have got it. One ("knowing receipt") is a cause of =
action -=20
i.e., the plaintiff says: "you have to give the money back because =
when you=20
received it, you knew you had no right to it"; and the other =
("honest=20
receipt") is a plea by the defendant who says: "look, when I received =
the money=20
I thought 'honestly' that I was entitled to it". Am I right? =
Gracias=20
amigo!
Louis Joseph
----- Original Message -----
From:=20
Jonathon P. Moore
Sent: Saturday, February 19, =
2000 4:44=20
PM
Subject: Re: Re: Honest =
Receipt?
I don't understand your =
question.
'Knowing receipt' is a claim, though =
poorly=20
named. 'Honest receipt' is a suggested defence, which has been =
rejected=20
by the courts.
----- Original Message -----
From:=20
joseph=20
Sent: Friday, February 18, =
2000 11:13=20
PM
Subject: Fw: Re: Honest =
Receipt?
----- Original Message -----=20
Sent: Saturday, February 19, 2000 6:41 AM
Subject: RDG: Re: Honest Receipt?
I am slightly confused. Is 'knowing receipt' different from =
'honest=20
receipt'? For, if we are taking of the same thing (but perhaps two =
different=20
sides of it) wasn't the defence of 'honest receipt' (unless it =
is not=20
the same as 'knowing receipt') comprehensively rejected by the House =
of=20
Lords in Klienwort Benson? As I understand it, the seeds of =
this=20
defence was suggested by Brennan J in David Securities Pty Ltd v =
Commonwealth Bank of Australia (1992) 109 ALR 57, when he said =
(at p=20
92): 'It is a defence for a claim for restitution of money paid or =
property=20
transferred under a mistake of law that the defendant honestly =
believed,=20
when he learnt of the payment or transfer, that he was entitled to =
receive=20
and retain the money or the property.'
As to the availability of this defence, remember that Lord Goff =
said in=20
Kleinwort Benson (at [1997] 3 WLR 1095, 1124) that it =
suffers=20
from a chronic lack of support, as it is generally regarded as being =
wider=20
than is necessary to meet the perceived mischief. He concluded (at p =
1125):
'... it would be most unwise for the common law, having =
recognised=20
the right to recover money paid under a mistake of law on the =
ground of=20
unjust enrichment, immediately to proceed to the recognition of so =
wide a=20
defence as which would exclude the right of recovery in a very =
large=20
proportion of cases. The proper course is surely to identify =
particular sets of circumstances which, as a matter of principle =
or=20
policy, may lead to the conclusion that recovery should not be =
allowed:=20
and in so doing to draw on the experience of the past, =
looking in=20
particular from the analogous case of money paid under =
mistake of=20
fact.'
Lord Lloyd (at p 1136), Lord Hoffman (at p 1136-7) and Lord =
Hope (at p=20
1151) concurred with Lord Goff on this point.
Louis Joseph
----- Original Message ----- =
From:=20
Lionel Smith
To: restitution@maillist.ox.ac.uk=20
Sent: Friday, February 18, =
2000 11:12=20
PM
approved: eregion
From: "Jonathon P.=20
Moore" <jonathon.moore@law.oxford=
.ac.uk>
Subject:=20
"Knowing Receipt" in Bank of America v Arnell
Members of =
the list=20
have already been referred to the recently-reported
decision of =
Aikens=20
J in Bank of America v Arnell [1999] Lloyd's Reports
Banking =
399. I=20
have only just obtained access to that report, and =
have
therefore held=20
off commenting until now.
Aikens J discussed the state of =
mind=20
necessary to invoke liability for "knowing receipt". At para 15, =
page 406,=20
he held:
"The latest consideration of the point by the =
Court of=20
Appeal is in
Twinsectra Ltd v Yardley & Ors (Potter LJ; =
Sir Iain=20
Glidewell and Sir
David Hirst: 28 April 1999). I think that it =
is=20
clear from the judgment
of Potter LJ in that case (see =
particularly at=20
paras 105-108) that the
fundamental question that the court has =
to ask=20
now is: was the recipient
acting *honestly* when he received =
the=20
funds."
Potter LJ's jugdment is, in many ways, excellent. =
But one=20
thing his
Lordship did not do was to decide that dishonesty =
was a=20
necessary
element of the "knowing receipt" cause of =
action.
It=20
is true that the paragraphs referred to by Aikens J contain a =
detailed=20
discussion of dishonesty, and that those paragraphs come =
under
the=20
heading " 'Knowing' Receipt or Assistance" (before para 101). =
But
it is=20
abundantly clear that Potter LJ was discussing dishonesty only=20
in
relation to dishonest assistance under Royal Brunei v Tan. =
Thus, at=20
para 107, Potter LJ says:
"That being so, and because =
the judge=20
found that Mr Leach did close
his eyes to the effect of the =
Sims'=20
Undertaking, it seems to me that the
findings made by the =
judge and=20
the evidence to which we have been
referred put this court in =
a=20
position to proceed to effect the exercise
which the judge =
declined to=20
perform, namely to consider whether or not
Mr Leach's state of =
mind was=20
such as to establish accessory liability on
the basis stated =
in Royal=20
Brunei Airlines."
It is also clear that, in relation to =
"knowing=20
receipt", the most one
can say about Twinsectra is that Potter =
LJ was=20
content to assume that
*notice* was required. Thus, at para=20
114:
" In relation to the receipt-based claim, it is plain =
that Mr=20
Leach
received the trust property for his own benefit with =
notice of=20
the
trust, took subject to it and is liable personally to =
account for=20
it to
Twinsectra."
The one failing of Potter LJ's =
judgment in=20
Twinsectra (understandable in
light of the facts) was that it =
passed=20
up the opportunity to consider
Lord Nicholls' extra-judicial =
view that=20
"knowing receipt" (or at least
one version of it) is actually a =
strict=20
liability claim in unjust
enrichment.
But it would be a =
huge=20
mistake for judges to go to the other extreme by
wrongly =
assuming that=20
Potter LJ required dishonesty as an element of the
cause of=20
action.
Jonathon Moore=20
=
------=_NextPart_000_0007_01BF7AFC.0B855D20--
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Message-ID: <000c01bf7ad0$9eeece60$712215a5@user>
From: "joseph"
To:
Subject: Fw: Re: Re: Honest Receipt?
Date: Sat, 19 Feb 2000 19:57:53 +0800
MIME-Version: 1.0
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On the assumption that Jonathon is not on the maillist, I forward his =
response to all (& sundry?).=20
:) cheeers!
----- Original Message -----=20
From: Jonathon P. Moore=20
To: joseph=20
Sent: Saturday, February 19, 2000 5:44 PM
Subject: Re: Re: Re: Honest Receipt?
Basically, yes. But 'honest receipt' is not part of English law. =
'Knowing receipt' is, in the view of many, best explained by Lord =
Nicholls in:=20
Lord Nicholls of Birkenhead, 'Knowing Receipt: The Need for a New =
Landmark' in WR Cornish et al (eds) Restitution Past, Present and Future =
(1998) 231
----- Original Message -----=20
From: joseph=20
To: Jonathon P. Moore ; restitution@maillist.ox.ac.uk=20
Sent: Saturday, February 19, 2000 9:09 AM
Subject: RDG: Re: Re: Honest Receipt?
Yup, I think I have got it. One ("knowing receipt") is a cause of =
action - i.e., the plaintiff says: "you have to give the money back =
because when you received it, you knew you had no right to it"; and the =
other ("honest receipt") is a plea by the defendant who says: "look, =
when I received the money I thought 'honestly' that I was entitled to =
it". Am I right? Gracias amigo!
Louis Joseph
----- Original Message -----=20
From: Jonathon P. Moore=20
To: joseph=20
Sent: Saturday, February 19, 2000 4:44 PM
Subject: Re: Re: Honest Receipt?
I don't understand your question.
'Knowing receipt' is a claim, though poorly named. 'Honest receipt' =
is a suggested defence, which has been rejected by the courts.
----- Original Message -----=20
From: joseph=20
To: Jonathon Moore=20
Sent: Friday, February 18, 2000 11:13 PM
Subject: Fw: Re: Honest Receipt?
----- Original Message -----=20
From: joseph=20
To: restitution@maillist.ox.ac.uk=20
Sent: Saturday, February 19, 2000 6:41 AM
Subject: RDG: Re: Honest Receipt?
I am slightly confused. Is 'knowing receipt' different from =
'honest receipt'? For, if we are taking of the same thing (but perhaps =
two different sides of it) wasn't the defence of 'honest receipt' =
(unless it is not the same as 'knowing receipt') comprehensively =
rejected by the House of Lords in Klienwort Benson? As I understand it, =
the seeds of this defence was suggested by Brennan J in David Securities =
Pty Ltd v Commonwealth Bank of Australia (1992) 109 ALR 57, when he said =
(at p 92): 'It is a defence for a claim for restitution of money paid or =
property transferred under a mistake of law that the defendant honestly =
believed, when he learnt of the payment or transfer, that he was =
entitled to receive and retain the money or the property.'
As to the availability of this defence, remember that Lord Goff =
said in Kleinwort Benson (at [1997] 3 WLR 1095, 1124) that it suffers =
from a chronic lack of support, as it is generally regarded as being =
wider than is necessary to meet the perceived mischief. He concluded (at =
p 1125):
'... it would be most unwise for the common law, having =
recognised the right to recover money paid under a mistake of law on the =
ground of unjust enrichment, immediately to proceed to the recognition =
of so wide a defence as which would exclude the right of recovery in a =
very large proportion of cases. The proper course is surely to identify =
particular sets of circumstances which, as a matter of principle or =
policy, may lead to the conclusion that recovery should not be allowed: =
and in so doing to draw on the experience of the past, looking in =
particular from the analogous case of money paid under mistake of =
fact.'
Lord Lloyd (at p 1136), Lord Hoffman (at p 1136-7) and Lord Hope =
(at p 1151) concurred with Lord Goff on this point.
Louis Joseph
----- Original Message -----=20
From: Lionel Smith=20
To: restitution@maillist.ox.ac.uk=20
Sent: Friday, February 18, 2000 11:12 PM
approved: eregion
From: "Jonathon P. Moore"
Subject: "Knowing Receipt" in Bank of America v Arnell
Members of the list have already been referred to the =
recently-reported
decision of Aikens J in Bank of America v Arnell [1999] Lloyd's =
Reports
Banking 399. I have only just obtained access to that report, =
and have
therefore held off commenting until now.
Aikens J discussed the state of mind necessary to invoke =
liability for "knowing receipt". At para 15, page 406, he held:
"The latest consideration of the point by the Court of Appeal is =
in=20
Twinsectra Ltd v Yardley & Ors (Potter LJ; Sir Iain Glidewell =
and Sir=20
David Hirst: 28 April 1999). I think that it is clear from the =
judgment=20
of Potter LJ in that case (see particularly at paras 105-108) =
that the
fundamental question that the court has to ask now is: was the =
recipient=20
acting *honestly* when he received the funds."
Potter LJ's jugdment is, in many ways, excellent. But one thing =
his=20
Lordship did not do was to decide that dishonesty was a =
necessary=20
element of the "knowing receipt" cause of action.
It is true that the paragraphs referred to by Aikens J contain a =
detailed discussion of dishonesty, and that those paragraphs =
come under
the heading " 'Knowing' Receipt or Assistance" (before para =
101). But
it is abundantly clear that Potter LJ was discussing dishonesty =
only in
relation to dishonest assistance under Royal Brunei v Tan. Thus, =
at=20
para 107, Potter LJ says:
"That being so, and because the judge found that Mr Leach did =
close=20
his eyes to the effect of the Sims' Undertaking, it seems to me =
that the=20
findings made by the judge and the evidence to which we have =
been=20
referred put this court in a position to proceed to effect the =
exercise
which the judge declined to perform, namely to consider whether =
or not
Mr Leach's state of mind was such as to establish accessory =
liability on=20
the basis stated in Royal Brunei Airlines."
It is also clear that, in relation to "knowing receipt", the =
most one=20
can say about Twinsectra is that Potter LJ was content to assume =
that=20
*notice* was required. Thus, at para 114:
" In relation to the receipt-based claim, it is plain that Mr =
Leach=20
received the trust property for his own benefit with notice of =
the=20
trust, took subject to it and is liable personally to account =
for it to
Twinsectra."
The one failing of Potter LJ's judgment in Twinsectra =
(understandable in=20
light of the facts) was that it passed up the opportunity to =
consider=20
Lord Nicholls' extra-judicial view that "knowing receipt" (or at =
least
one version of it) is actually a strict liability claim in =
unjust=20
enrichment.
But it would be a huge mistake for judges to go to the other =
extreme by
wrongly assuming that Potter LJ required dishonesty as an =
element of the=20
cause of action.
Jonathon Moore=20
------=_NextPart_000_0009_01BF7B13.9B9FCF00
Content-Type: text/html;
charset="iso-8859-1"
Content-Transfer-Encoding: quoted-printable
On the assumption that Jonathon is not on the maillist, I forward =
his=20
response to all (& sundry?).
:) cheeers!
----- Original Message -----=20
Sent: Saturday, February 19, 2000 5:44 PM
Subject: Re: Re: Re: Honest Receipt?
Basically, yes. But 'honest =
receipt' is not=20
part of English law. 'Knowing receipt' is, in the view of =
many, best=20
explained by Lord Nicholls in:=20
Lord Nicholls of Birkenhead, ‘Knowing Receipt: The Need for a =
New Landmark’=20
in WR Cornish et al (eds) Restitution Past, Present and Future =
(1998)=20
231
----- Original Message -----
From:=20
joseph=20
To: Jonathon P. Moore ; restitution@maillist.ox.ac.uk =
Sent: Saturday, February 19, =
2000 9:09=20
AM
Subject: RDG: Re: Re: Honest=20
Receipt?
Yup, I think I have got it. One ("knowing receipt") is a cause of =
action=20
- i.e., the plaintiff says: "you have to give the money back =
because when=20
you received it, you knew you had no right to it"; and =
the other=20
("honest receipt") is a plea by the defendant who says: "look, when I =
received=20
the money I thought 'honestly' that I was entitled to it". Am I =
right?=20
Gracias amigo!
Louis Joseph
----- Original Message -----
From:=20
Jonathon P. Moore
Sent: Saturday, February 19, =
2000 4:44=20
PM
Subject: Re: Re: Honest =
Receipt?
I don't understand your =
question.
'Knowing receipt' is a claim, =
though poorly=20
named. 'Honest receipt' is a suggested defence, which has been =
rejected by the courts.
----- Original Message ----- =
From:=20
joseph
Sent: Friday, February 18, =
2000 11:13=20
PM
Subject: Fw: Re: Honest=20
Receipt?
----- Original Message -----=20
Sent: Saturday, February 19, 2000 6:41 AM
Subject: RDG: Re: Honest Receipt?
I am slightly confused. Is 'knowing receipt' different from =
'honest=20
receipt'? For, if we are taking of the same thing (but perhaps two =
different sides of it) wasn't the defence of 'honest receipt' =
(unless=20
it is not the same as 'knowing receipt') comprehensively rejected =
by the=20
House of Lords in Klienwort Benson? As I understand it, =
the seeds=20
of this defence was suggested by Brennan J in David Securities =
Pty Ltd=20
v Commonwealth Bank of Australia (1992) 109 ALR 57, when he =
said (at=20
p 92): 'It is a defence for a claim for restitution of money paid =
or=20
property transferred under a mistake of law that the defendant =
honestly=20
believed, when he learnt of the payment or transfer, that he was =
entitled=20
to receive and retain the money or the property.'
As to the availability of this defence, remember that Lord =
Goff said=20
in Kleinwort Benson (at [1997] 3 WLR 1095, 1124) =
that it=20
suffers from a chronic lack of support, as it is generally =
regarded as=20
being wider than is necessary to meet the perceived mischief. He =
concluded=20
(at p 1125):
'... it would be most unwise for the common law, having =
recognised=20
the right to recover money paid under a mistake of law on the =
ground of=20
unjust enrichment, immediately to proceed to the recognition of =
so wide=20
a defence as which would exclude the right of recovery in a very =
large=20
proportion of cases. The proper course is surely to =
identify =20
particular sets of circumstances which, as a matter of principle =
or=20
policy, may lead to the conclusion that recovery should not be =
allowed:=20
and in so doing to draw on the experience of the past, =
looking in=20
particular from the analogous case of money paid under =
mistake of=20
fact.'
Lord Lloyd (at p 1136), Lord Hoffman (at p 1136-7) and Lord =
Hope (at=20
p 1151) concurred with Lord Goff on this point.
Louis Joseph
----- Original Message ----- =
From:=20
Lionel Smith
To: restitution@maillist.ox.ac.uk=20
Sent: Friday, February =
18, 2000=20
11:12 PM
approved: eregion
From: "Jonathon P.=20
Moore" <jonathon.moore@law.oxford=
.ac.uk>
Subject:=20
"Knowing Receipt" in Bank of America v Arnell
Members of =
the list=20
have already been referred to the recently-reported
decision =
of=20
Aikens J in Bank of America v Arnell [1999] Lloyd's =
Reports
Banking=20
399. I have only just obtained access to that report, and=20
have
therefore held off commenting until now.
Aikens J =
discussed the state of mind necessary to invoke liability for =
"knowing=20
receipt". At para 15, page 406, he held:
"The latest=20
consideration of the point by the Court of Appeal is in =
Twinsectra=20
Ltd v Yardley & Ors (Potter LJ; Sir Iain Glidewell and Sir =
David=20
Hirst: 28 April 1999). I think that it is clear from the =
judgment
of=20
Potter LJ in that case (see particularly at paras 105-108) that=20
the
fundamental question that the court has to ask now is: =
was the=20
recipient
acting *honestly* when he received the=20
funds."
Potter LJ's jugdment is, in many ways, excellent. =
But one=20
thing his
Lordship did not do was to decide that dishonesty =
was a=20
necessary
element of the "knowing receipt" cause of=20
action.
It is true that the paragraphs referred to by =
Aikens J=20
contain a
detailed discussion of dishonesty, and that those=20
paragraphs come under
the heading " 'Knowing' Receipt or =
Assistance"=20
(before para 101). But
it is abundantly clear that Potter LJ =
was=20
discussing dishonesty only in
relation to dishonest =
assistance under=20
Royal Brunei v Tan. Thus, at
para 107, Potter LJ =
says:
"That=20
being so, and because the judge found that Mr Leach did close =
his=20
eyes to the effect of the Sims' Undertaking, it seems to me that =
the=20
findings made by the judge and the evidence to which we have =
been=20
referred put this court in a position to proceed to effect =
the=20
exercise
which the judge declined to perform, namely to =
consider=20
whether or not
Mr Leach's state of mind was such as to =
establish=20
accessory liability on
the basis stated in Royal Brunei=20
Airlines."
It is also clear that, in relation to "knowing =
receipt", the most one
can say about Twinsectra is that =
Potter LJ=20
was content to assume that
*notice* was required. Thus, at =
para=20
114:
" In relation to the receipt-based claim, it is =
plain that=20
Mr Leach
received the trust property for his own benefit =
with notice=20
of the
trust, took subject to it and is liable personally to =
account=20
for it to
Twinsectra."
The one failing of Potter LJ's =
judgment=20
in Twinsectra (understandable in
light of the facts) was =
that it=20
passed up the opportunity to consider
Lord Nicholls' =
extra-judicial=20
view that "knowing receipt" (or at least
one version of it) =
is=20
actually a strict liability claim in unjust =
enrichment.
But=20
it would be a huge mistake for judges to go to the other extreme =
by
wrongly assuming that Potter LJ required dishonesty as an =
element=20
of the
cause of action.
Jonathon Moore =
------=_NextPart_000_0009_01BF7B13.9B9FCF00--
>From a.hudson@qmw.ac.uk Sat Feb 19 12:09:30 2000
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To: Lionel Smith ,restitution@maillist.ox.ac.uk
From: a.hudson@qmw.ac.uk (Alastair Hudson)
Subject: Re:
Message-Id:
Date: Sat, 19 Feb 2000 12:09:21 +0000
>Potter LJ's jugdment is, in many ways, excellent. But one thing his
>Lordship did not do was to decide that dishonesty was a necessary
>element of the "knowing receipt" cause of action.
>
>It is true that the paragraphs referred to by Aikens J contain a
>detailed discussion of dishonesty, and that those paragraphs come under
>the heading " 'Knowing' Receipt or Assistance" (before para 101). But
>it is abundantly clear that Potter LJ was discussing dishonesty only in
>relation to dishonest assistance under Royal Brunei v Tan. Thus, at
>para 107, Potter LJ says:
>
> "That being so, and because the judge found that Mr Leach did close
>his eyes to the effect of the Sims' Undertaking, it seems to me that the
>findings made by the judge and the evidence to which we have been
>referred put this court in a position to proceed to effect the exercise
>which the judge declined to perform, namely to consider whether or not
>Mr Leach's state of mind was such as to establish accessory liability on
>the basis stated in Royal Brunei Airlines."
>
However, in col. 2 p.466 (Lloyds Banking Rep) in Twinsectra Potter LJ makes
is clear that "The claim against Mr Leach falls into two parts ... "knowing
receipt" in respect of =A322,000 ... and knowing assistance in relation to=
the
balance ...". What is interesting is that the same test is being used by
Potter LJ both for dishonest assistance and knowing receipt (even though he
acknowledges that one claim is receipt-based and the other not). The
discussion on p. 465 col. 1 indicates consideration only of a "standard of
honesty" both in the solicitor and in Leach. At no point is there a
discussion of "knowledge" as applying to Leach and the solicitor here. The
discussion proceeds on the basis of their "honesty" and/or "dishonesty" in
relation both to receipt and assistance.=20
There are frequent references to the old knowledge-orientated ideas of
"shutting his eyes to the obvious". For example on p.462, col. 2, there is
mention of '"not dishonest" ..., he was referring to the state of
conscious, as opposed to "Nelsonian" dishonesty ...' This indicates to me
that the Court of Appeal in Twinsectra (and Arnell subsequently) are using
the old categories within which to analyse the mental state of the defendant
(e.g. wilfully shutting your eyes) but are concerned with whether or not
that person was honest or dishonest, as opposed to whether or not that
person had knowledge. There is a partial shift here: the trigger is " what
an honest person would have done" (in that passage from Tan, quoted by
Potter LJ at p.464 col.2) but the problems of witness credibility are the
same for the judge.=20
The test is not about the knowledge of the defendant, it is about whether or
not the defendant acted as an honest person would have acted.=20
Significantly Potter LJ looks at recklessly ignoring the rights of others
which is moving away from fault and, as with Tan itself, looking towards
objective ideas of, something like, what 'an equivalent (professional)
person would do in such a situation, etc'. This seems to nudge us on
towards strict liability - not getting there yet, but getting closer.=20
Clearly there has been a movement away from knowledge because Potter LJ does
not explicitly use the old knowledge tests, even though he is considering
knowing receipt as well as dishonest assistance.=20
The only way of understanding this, it seems to me, is Scott LJ's comment in
Polly Peck No.2 that the judge needs to decide whether or not the defendant
"ought to have been suspicious" in the light of what an honest person would
have done.=20
Take care,
Alastair Hudson
****************************
Dr Alastair Hudson
Senior Lecturer in Law
Queen Mary and Westfield College
University of London
Mile End Road
London
E1 4NS
tel: 020 7882 3164
fax: 020 8882 8733
This communication is confidential and may contain privileged information.
Presuming you have read this far anyway. If so, I should point out that the
message finished some time ago. You are a little like one of those people
(me included) who cannot leave the cinema until the very end of the credits
because of that lurking feeling that there might be more to come. However,
there really is nothing more to come. As for the confidentiality provision,
that all seems a little late too. You will have read any secrets mistakenly
left in the e-mail already, so it is really just a begging clause asking you
not to do anything naughty now that you have read them. Another example of
attempting to impose order on a fundamentally chaotic universe. Well, that
really is it. I must just say how much I have enjoyed this unexpected time
we have spent together. Bye-bye.=20
>From paul.matthews@kcl.ac.uk Mon Feb 21 11:08:13 2000
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Date: Mon, 21 Feb 2000 11:21:39 +0000
To: restitution@maillist.ox.ac.uk
From: Paul Matthews
Subject: Lecture by Lord Browne-Wilkinson
Mime-Version: 1.0
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Subscribers to the RDG may be interested to learn that Lord
Browne-Wilkinson is giving a public lecture (sponsored by Withers) in the
Great Hall at King's College London (Strand Campus) at 6 pm on Tuesday 29
February 2000, with the title "Restitution and Equitable Rights"
(apparently dealing with criticisms of Westdeutsche Landesbank etc). Free,
without ticket. Just turn up if you're interested. There is wine afterwards.
Paul Matthews
>From jpmoore100@hotmail.com Tue Feb 22 11:46:46 2000
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X-Originating-IP: [212.250.67.84]
From: "Jonathon P. Moore"
To:
Subject: Tracing and Bank accounts
Date: Tue, 22 Feb 2000 11:45:45 -0000
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Members of the list may not be aware of a recent note by the list =
Chairman:
Tracing in Bank Accounts: The Lowest Intermediate Balance Rule on Trial, =
Lionel Smith, (2000), 33 Canadian Business Law Journal 75
For my own part, I find the article utterly convincing in its rejection =
of the reasoning and result in Law Society of Upper Canada v. =
Toronto-Dominion Bank (1998) 169 D.L.R. (4th) 353 (Ont CA) . =20
The note incidentally achieves two other things. First, it =
compendiously summarises some of the most important points made in =
Lionel's book on Tracing. It also shows the danger of judges rejecting =
logical principles of law because of what they individually perceive to =
be a fair result. =20
Jonathon Moore
------=_NextPart_000_000C_01BF7D2A.5B002DA0
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Members of the list may not be aware of =
a recent=20
note by the list Chairman:
Tracing in Bank Accounts: The Lowest Intermediate =
Balance Rule=20
on Trial, Lionel Smith, (2000), 33 Canadian Business Law Journal 75
For my own part, I find =
the article=20
utterly convincing in its rejection of the reasoning and result in =
Law=20
Society of Upper Canada v. Toronto-Dominion Bank (1998) 169 D.L.R. (4th) 353 (Ont CA) =
. =20
The note incidentally =
achieves two=20
other things. First, it compendiously summarises some of the most=20
important points made in Lionel's book on Tracing. It also shows =
the=20
danger of judges rejecting logical principles of law because of what =
they=20
individually perceive to be a fair result.
Jonathon Moore
------=_NextPart_000_000C_01BF7D2A.5B002DA0--
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From: info@firstecc.com
To: restitution@maillist.ox.ac.uk
Subject: Legal Web Site
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>From bullt@nan.co.jp Sun Feb 27 23:58:56 2000
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>From A.M.Tettenborn@exeter.ac.uk Mon Feb 28 09:46:39 2000
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Date: Mon, 28 Feb 2000 09:46:28 +0000
To: restitution@maillist.ox.ac.uk
From: Andrew Tettenborn
Subject: profitable breaches of contract
Cc: lawschool@exeter.ac.uk
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A case reported as a news item in the Telegraph for 26.2.00, Nottingham Uni
v Fishel, is of interest to restitution lawyers and academics generally. A
clinical lecturer at Nottingham makes a tidy sum on the side without the
university's permission, and using university facilities. This is a breach
of his contract with the university. Elias J (an ex-academic, alumnus of
Exeter and previous lecturer at Cambridge) holds, it seems, that he is
accountable for this sum on the basis of breach of fiduciary duty, but
refuses restitutionary damages for breach of contract as such. A copy of
the Telegraph report:
A TEST-TUBE baby pioneer faces having to pay his
former university
employers a substantial part of profits
estimated at =A3400,000 that he made
from private practice work after a High Court
ruling yesterday.
Mr Justice Elias ruled that Dr Simon Fishel was
in breach of his fiduciary duty
to Nottingham University when keeping the
profits of treatment carried out
abroad using university embriologists under his
supervision. He also found that
Dr Fishel, although not dishonest, was in breach
of his contract of
employment with the university. But as it did
not cause loss to the university,
he should not have to pay them any damages for
this, said the judge.
Dr Fishel, who is 47 and was head of the
university's fertility clinic from 1991
to 1997, was taken to court by his former
employers who claimed that he had
made substantial secret profits from private
practice which should have gone
to them.
During the High Court hearing in London, the
judge was told that despite his
substantial salary which topped =A3138,000 in
1996, Dr Fishel charged patients
for treatment given during his visits to foreign
clinics and kept the money for
himself and to pay the embryologists and other
university staff who went with
him. His profit-making business of running
infertility clinics abroad had brought
in fees of up to =A310,000 but although he had
used the name of the university's
fertility unit and the university's employees
and secretarial facilities, none of the
money had gone to his employers, it was claimed.
Dr Fishel, of East Bridgford, Notts,argued that
he was not doing outside
work but inventing, testing or improving
techniques as part of his research
functions and that the fact that he was paid for
the work was irrelevant. In his
reserved judgment yesterday Mr Justice Elias
said he was satisfied that Dr
Fishel at all times genuinely thought that the
work he was carrying out abroad
was for the benefit of Nurture, the Nottingham
University Research and
Treatment Unit in Reproduction, of which he was
clinical director.
He added: "I do not think that Dr Fishel did in
fact prejudice the interests of
the unit by putting his financial interests
first, although I think he may have
come very close to this." But under the terms of
his contract, Dr Fishel had to
obtain consent to work outside the university
for money and he had not done
this. He was therefore in breach of his
contract, said the judge.
If the account of profits due to the university
as a result of the judgment
cannot be agreed, a further hearing would be
necessary to determine them.
The court also has to decide who should pay the
estimated =A3500,000 cost of
the action. After the judgment, the university's
registrar, Keith Jones, said the
university felt the judgment fully justified its
decision to bring the action to
protect the principles of loyalty.
Dr Fishel, who not in court for the judgment,
claimed afterwards that the
university had spent =A3750,000 of public money -
"enough to pay the tuition
fees of 700 students, in pursuing this grievance
through the courts".
AMT
Andrew Tettenborn MA LLB
Bracton Professor of Law
Tel: 01392-263189 / +44-392-263189 (international)
Fax: 01392-263196 / +44-392-263196 (international)
Personal Fax: 0870-0889339 / +44-870-0889339 (international)
Snailmail: School of Law,
University of Exeter,
Amory Building,
Rennes Drive,
Exeter EX4 4RJ
England
>From lionel.smith@law.oxford.ac.uk Mon Feb 28 11:11:53 2000
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Date: Mon, 28 Feb 2000 11:09:14 +0000
To: restitution@maillist.ox.ac.uk
From: Lionel Smith
Subject: profitable breaches of contract
Content-Type: text/plain; charset="us-ascii" ; format="flowed"
There is a headnote (but not a judgment, yet) of the Fishel case in
New Law Online.
Non-UK members might also be interested to learn that another claim
to profits appeared in the weekend newspapers here, relating to
"renegade spy" David Shayler, a former MI5 agent who now lives in
Paris. The UK government failed in earlier attempts to have him
extradited and they are now suing him civilly for breaches of
contract, confidence and copyright. There is also a claim against one
of the newspapers which published Shayler's allegations/revelations.
Accounts of profits are sought against both defendants. The
government appears to be arguing that the information supplied by
Shayler is crown copyright, which seems a bit ambitious. Can
information be copyright, or only a particular manifestation of it?
Perhaps the argument is that any time an MI5 agent conveys secret
information, the manifestation is ipso facto crown copyright since
(s)he is or was a servant of the Crown.
Lionel
>From charles.mitchell@kcl.ac.uk Mon Feb 28 11:43:15 2000
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Date: Mon, 28 Feb 2000 11:48:23 +0000
To: restitution@maillist.ox.ac.uk
From: Charles Mitchell
Subject: Shayler case
Mime-Version: 1.0
Content-Type: text/plain; charset="us-ascii"
The problem with arguing that secret information should be regarded as
Crown copyright is obviously that by its nature the information is not
something which the Crown would wish to sell. This reminds me of the
argument which is sometimes made about A-G for Hong Kong v Reid, that the
Hong Kong government must be taken to have lost something at least as
valuable as the bribes Reid was paid, an argument which chooses to ignore
the fact that the HK government was not in the business of selling
immunities from prosecution.
________________________________________________________________________
Dr Charles Mitchell
Lecturer in Law
School of Law
King's College London
Strand
LONDON WC2R 2LS
tel: 020 7848 2290
fax: 020 7848 2465
>From Hector.MacQueen@ed.ac.uk Mon Feb 28 14:45:54 2000
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From: "Hector MacQueen"
To: "Charles Mitchell" ,
Subject: Re: Shayler case
Date: Mon, 28 Feb 2000 12:59:50 -0000
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Just a footnote to this: surely one of the points of copyright is that
generally, and the ECJ case of Magill (1995) always excepted, you don't
have to sell; you can normally keep your exclusivity if you wish, and this
is one of the reasons why copyright systems generally make the infringer
liable to disgorge her profits.
Hector MacQueen
----------
> From: Charles Mitchell
> To: restitution@maillist.ox.ac.uk
> Subject: RDG: Shayler case
> Date: 28 February 2000 11:48
>
> The problem with arguing that secret information should be regarded as
> Crown copyright is obviously that by its nature the information is not
> something which the Crown would wish to sell. This reminds me of the
> argument which is sometimes made about A-G for Hong Kong v Reid, that the
> Hong Kong government must be taken to have lost something at least as
> valuable as the bribes Reid was paid, an argument which chooses to ignore
> the fact that the HK government was not in the business of selling
> immunities from prosecution.
> ________________________________________________________________________
>
> Dr Charles Mitchell
> Lecturer in Law
> School of Law
> King's College London
> Strand
> LONDON WC2R 2LS
>
> tel: 020 7848 2290
> fax: 020 7848 2465
>
>
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____
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>From charles.mitchell@kcl.ac.uk Mon Feb 28 15:36:18 2000
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Date: Mon, 28 Feb 2000 15:41:25 +0000
To: "Hector MacQueen"
From: Charles Mitchell
Subject: Re: Shayler case
Cc: restitution@maillist.ox.ac.uk
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Several people have written to me, both on- and off-list, to point this
out, and I stand corrected! (Must brush up on my copyright law.) I would
still argue in line with what I said about Reid, though, that it would be
artificial to regard the Crown as having lost the opportunity to sell the
information in the Shayler case when it would never have willingly taken
this opportunity, given the nature of the information. And on this point a
further analogy also suggests itself to me, viz the unreality of the 'lost
opportunity to bargain' analysis of Wrotham Park Estates, given that
Brightman J accepted in the case that the plaintiff would never willingly
have released the covenant.
At 12:59 28/02/00 -0000, you wrote:
>Just a footnote to this: surely one of the points of copyright is that
>generally, and the ECJ case of Magill (1995) always excepted, you don't
>have to sell; you can normally keep your exclusivity if you wish, and this
>is one of the reasons why copyright systems generally make the infringer
>liable to disgorge her profits.
>
>Hector MacQueen
>
>----------
>> From: Charles Mitchell
>> To: restitution@maillist.ox.ac.uk
>> Subject: RDG: Shayler case
>> Date: 28 February 2000 11:48
>>
>> The problem with arguing that secret information should be regarded as
>> Crown copyright is obviously that by its nature the information is not
>> something which the Crown would wish to sell. This reminds me of the
>> argument which is sometimes made about A-G for Hong Kong v Reid, that the
>> Hong Kong government must be taken to have lost something at least as
>> valuable as the bribes Reid was paid, an argument which chooses to ignore
>> the fact that the HK government was not in the business of selling
>> immunities from prosecution.
>> ________________________________________________________________________
>>
>> Dr Charles Mitchell
>> Lecturer in Law
>> School of Law
>> King's College London
>> Strand
>> LONDON WC2R 2LS
>>
>> tel: 020 7848 2290
>> fax: 020 7848 2465
>>
>>
>____________________________________________________________________________
>____
>> This message was delivered through the Restitution Discussion Group, an
>> international internet LISTSERV devoted to all aspects of the law of
>unjust
>> enrichment. To subscribe, send "subscribe restitution" in the body of a
>> message to . To unsubscribe, send
>"unsubscribe
>> restitution" to the same address. To make a posting to all group members,
>> send to . The list is run by Lionel Smith
>of
>> St. Hugh's College, Oxford, U.K., tel. (0)1865 274 966, email
>> .
>
________________________________________________________________________
Dr Charles Mitchell
Lecturer in Law
School of Law
King's College London
Strand
LONDON WC2R 2LS
tel: 020 7848 2290
fax: 020 7848 2465