========================================================================= Date: Thu, 5 Jul 2001 17:22:45 GMT Reply-To: Benedict White Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Benedict White Subject: Estopple MIME-Version: 1.0 Content-type: text/plain; charset=utf-8 Content-Transfer-Encoding: 8bit Here is a scenario: Houses with their tennants are transfered from a council to a housing association. In order to do so there is a consultation process and a vote. The process promises rights to induce a yes vote above the statutory requirement, and provisions are written in the tenancy agreement, in this case the relevant one is for a right of succession as per the 1985 housing act, though it is similar it is not the same. Some years later the tenant dies, and his son, A informs the Landlord B of the fact, and at the same time asks for sucession rights. B denies that they exist, and says that the 1988 provisions apply. A asks B to clarify his position in writing which he does, but takes his time. Then B takes action to evict A. A subsiquently discovers that had he been informed correctly of the provisions of the tenancy he could have made full use of its provisions in time (The provisions are time limited) which would make eviction impossible. This is a sort of summary of a real case. I have yet to see the out come, but am interested if any thoughts spring to mind. After all it would appear that B stands to gain benefit from representing the facts as different from what they are. This can not be equitable. Kind regards Benedict White ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Fri, 13 Jul 2001 11:37:47 +0100 Reply-To: Steve Hedley Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Steve Hedley Subject: Ultra vires in public law Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Eastbourne BC v. Foster has now been considered by the Court of Appeal (11/7/2001). Judgment is at www.law.cam.ac.uk/restitution, and elsewhere. Steve Hedley =================================================== FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE telephone and answering machine : (01223) 334931 e-mail : steve.hedley@law.cam.ac.uk messages : (01223) 334900 fax : (01223) 334967 Christ's College Cambridge CB2 3BU =================================================== ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Fri, 20 Jul 2001 09:42:52 +0100 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Subject: Celebrity News, or Hello Restitution! Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Two items on the radio this morning: the Daily Star intends to sue Lord Archer to recover its libel damages, as discussed in previous postings. Also, the jewellers who supplied the American actors Jennifer Aniston and Brad Pitt with their wedding rings have done the thing which they promised not to do: in breach of their promise never to make a copy of the rings, they have begun to manufacture copies and to sell them over the Internet. Jennifer and Brad have launched a US $50 million lawsuit. Charles Mitchell ________________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Fri, 20 Jul 2001 11:18:48 +0100 Reply-To: Andrew Tettenborn Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Andrew Tettenborn Subject: [RDG: Celebrity News, or Hello! restitution Mime-Version: 1.0 Content-Type: text/plain; charset="ISO-8859-1" Content-Transfer-Encoding: 7bit I read that Lord Archer is facing a claim for (a) return of the damages he extracted from the Star; (b) the Star's costs in unsuccessfully defending the action. I would have thought the Star were on to a very good runner as regards the (a)- a judgment can be undone for fraud, and once the Star has got rid of the judgment in favour of Lord Archer, this seems a fairly case of failure of assumptions. But any ideas about the basis on which the Star can recover its costs from Lord Archer? AT Andrew Tettenborn Bracton Professor of Law, University of Exeter Tel: +44 (0) 1392-263189 Fax: +44 (0) 1392-263196 Snailmail: School of Law University of Exeter Amory Building Rennes Drive Exeter EX4 4RJ England ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Fri, 20 Jul 2001 12:04:07 +0100 Reply-To: Matthew.Scully@CLIFFORDCHANCE.COM Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Matthew.Scully@CLIFFORDCHANCE.COM Subject: Re: [RDG: Celebrity News, or Hello! restitution Comments: To: A.M.Tettenborn@EXETER.AC.UK If the judgment can be undone for fraud, then so surely can any costs award made consequentially. This would then leave room for re-assessment of costs. However, this does not seem to be what the Star has done from a procedural point of view, if it is asking for damages corresponding to its costs. -----Message d'origine----- De: Andrew Tettenborn [mailto:A.M.Tettenborn@EXETER.AC.UK] Date: vendredi 20 juillet 2001 12:19 À: ENRICHMENT@LISTS.MCGILL.CA Objet: [RDG:] [RDG: Celebrity News, or Hello! restitution I read that Lord Archer is facing a claim for (a) return of the damages he extracted from the Star; (b) the Star's costs in unsuccessfully defending the action. I would have thought the Star were on to a very good runner as regards the (a)- a judgment can be undone for fraud, and once the Star has got rid of the judgment in favour of Lord Archer, this seems a fairly case of failure of assumptions. But any ideas about the basis on which the Star can recover its costs from Lord Archer? AT Andrew Tettenborn Bracton Professor of Law, University of Exeter Tel: +44 (0) 1392-263189 Fax: +44 (0) 1392-263196 Snailmail: School of Law University of Exeter Amory Building Rennes Drive Exeter EX4 4RJ England ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ******* This message and any attachment are confidential and may be privileged or otherwise protected from disclosure. If you are not the intended recipient, please telephone or email the sender and delete this message and any attachment from your system. If you are not the intended recipient you must not copy this message or attachment or disclose the contents to any other person. For further information about Clifford Chance please see our website at http://www.cliffordchance.com or refer to any Clifford Chance office. ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Fri, 20 Jul 2001 13:33:52 +0100 Reply-To: Andrew Burrows Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Andrew Burrows Organization: University of Oxford Faculty of Law Subject: Twinsectra MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit I hope this will not be thought an inappropriate use of this facility: but does anyone out there know whether the appeal to the House of Lords in Twinsectra v Yardley has been heard or when it is to be heard? Thanks. Andrew Burrows ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Fri, 20 Jul 2001 10:12:01 -0400 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: publications MIME-version: 1.0 Content-type: text/html; charset="iso-8859-1" Content-transfer-encoding: quoted-printable In other news:

RDG member Steve Hedley has just published a new book, A Critical Introduction to Restitution (Butterworths). From the blurb at <http://www.butterworths.com/cgi-bin/product.exe?code=3Dhir= >: "This new book on restitution is an introductory text which places this area of law and academic debates firmly in their commercial context. Adopting a practical approach, the text offers an accessible guide to the subject, and is specially designed with undergraduates in mind." Price: =A321.95, ISBN: 0 406 93241 7.

Many congratulations to Steve. Newer RDG members may not be aware that he maintains a very good restitution site at <http://www.law.cam.ac.uk/restitution/restitution.htm= >.

The new LQR (2001) 117 no 3 has

A.S. Burrows, "Proprietary Restitution: Unmasking Unjust Enrichment"
A. Berg, "Permitting a Trustee to Retain a Profit" (a note taking up a point in Foskett)
R. Bigwood, "Economic Duress by (Threatened) Breach of Contract" (a note on DSND Subsea v Petroleum Geo-Services)

The new OJLS (2001) 21 no 2 has

S.B. Thomas, " 'Goodbye' Knowing Receipt. 'Hello' Unconscientious Receipt"
L. Ho & P. St. J. Smart, "Re-interpreting the Quistclose Trust: A Critique of Chambers' Analysis"

Lionel ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Fri, 20 Jul 2001 13:39:57 -0400 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Hochelaga Lecture MIME-version: 1.0 Content-type: text/plain; charset="us-ascii"; format=flowed Also recently published by the University of Hong Kong and Sweet and Maxwell Asia is the Second Hochelaga Lecture, given at the UHK in October 2000 by Prof. Gareth Jones. The title of the lecture is "Unresolved Problems in the Law of Restitution" and it ranges widely over a number of subjects, including title to sue, proprietary claims, personal liability for receipt of trust property, and the scope of the defence of change of position. Published together with it are two articles on AG v Blake, by B. Ho and P Shieh. Lionel ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Sat, 21 Jul 2001 17:00:19 -0400 Reply-To: Doug Rendleman Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Doug Rendleman Subject: Re: [RDG: Celebrity News, or Hello! restitution Comments: To: A.M.Tettenborn@EXETER.AC.UK Mime-Version: 1.0 Content-Type: text/plain; charset=US-ASCII News from the US I am sure the Star newspaper has done some research on UK law before seeking to recover the money it paid Archer in the 80s under the lie-imbued libel judgment, but my brief look at US law revealed a startling difference. a) After one year has passed, simple perjury will not suffice to reopen a judgment. James, Hazard, & Leubsdorf, Civil Procedure 786 (2001). Perjury or forgery are "intrinsic" fraud which are insufficient for two reasons: the opponent could cross examine, etc, to protect itself, and any judgment based on conflicting testimony could be attacked for perjury. The moving party must show "extrinsic" fraud, for example bribery of the judge or jury, to reopen after one year. A decade-old US judgment based on perjury would stand. b) As a prerequisite for restitution, a judgment must be "reversed or avoided," that is "set aside in collateral proceedings." Restatement of Restitution and Unjust Enrichment, Section 18 (Tentative Draft No. 1, 2001). Restitution would occur only if the court strikes the judgment down. Being factually erroneous because of dishonest testimony is not enough to reopen a judgment in the US - after a year, the judgment must be void to be vulnerable, but only lack of subject matter or personal jurisdiction will lead to a void judgment. These rules are based on elusive distinctions between intrinsic and extrinsic fraud and between erroneous and void judgments. A court might like to subordinate the policies of finality, reliance, and stability to preventing a perjurer's unjust enrichment. This might occur if the newspaper obtained a UK judgment for restitution, Archer, upon release, moved to the US because of its salubrious laws, the newspaper brought the UK restitution judgment here and asked a US court to recognize it based on "comity," the judgment debtor asked the court to reject it because of its repugnance to local "public policy," and the court rejected the "public policy" defense and recognized the UK restitution judgment. Weirder things have happened. Once again the English classes and their civil courts have augmented the world's flagging supply of harmless fun. Hail. Doug Rendleman Washington & Lee ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Wed, 25 Jul 2001 08:31:21 +0100 Reply-To: Eoin O'Dell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Eoin O'Dell Subject: Restitution from an insolvent fiduciary stockborker Mime-Version: 1.0 Content-Type: text/plain; charset="ISO-8859-1" Content-Transfer-Encoding: quoted-printable Hello all The collapse of the Irish stockbrokers Money Markets Internationa continues to generate interesting caselaw. In the most recent installment in the saga, In re Money Markets International [2000] 3 IR 437 (HC), Laffoy J referred to it as =93a winding up of unparalleled complications=94 ([2000] IR 437, 452). It's hardly on a par with Maxwell or BCCI, or even with PMPA (an Irish combination of the last two) but it is very interesting. This installment concerns the principle that a fiduciary will be taken to have acted lawfully applied in the statutory context of investment protection. MMI was wound up 15 March 1999. Its clients were owed at least =A32.35m; there was only =A31.2m or so in the client account made up of a mixture of clients' funds lodged there and funds which MMI would have been entitled to withdraw as commissions which it allowed to remain lodged there. S52 of the Stock Exchange Act, 1995 requires brokers to lodge client funds to client accounts, and s52(5)(a) (as amended by s78 of the Investor Compensation Act, 1998) provides that =93[n]o liquidator =85 shall have or obtain any recourse or right against a client=92s money =85 until all proper claims of the client =85 against the client=92s money =85 have been satisfied in full=94. Laffy J held that =93=85 the effect of s52(5)(a) is to ring-fence the funds in the client money bank account and preserve them for the client creditors who provided them. It is only if there is a surplus after the =91proper claims=92 of those creditors have been satisfied in full that any question of a third party, such as the liquidator of the member firm, having any recorse or right arises. Therefore, in theory as well as in practice, so much of the client=92s funds as are required to satisfy in full those clients=92 proper claims are trust funds and are held by the member firm in a fiduciary capacity. Each client creditor has a right in rem or a property claim against the client funds, and also a right in personam or a money claim against the trustee who holds the funds. =85 In this case, the funds of =A31.2m is =91client=92s money=92 within the meaning of s52(5)(a), notwithstanding that the evolution of the final credit balance on the money bank account involved the lodgement [sic] of monies provided by clients and the lodgement [sic] and retention of monies provided by MMI =96 an admixture of funds. As regards such monies as were in the past put up by MMI, whether being commissions which were not drawn down from[,] or funds actually lodged to[,] the client money bank account, they became and remained client funds because they were put up to meet the obligations of MMI under the requirements and could not have been put up for any other purpose. The entire fund of =A31.2m is impressed with a trust in favour of the client creditors of MMI and the plaintiff has and will have no recourse or right against any part of that fund, save in the unlikely eventuality that there is a surplus after satisfaction in full of all proper claims of the client creditors.=94 ([2000] 3 IR 437, 447-448; see also 454). This holding seems to have has two justifications: first, it is an application of the principle that a fiduciary must be taken to acted consistently with fiduciary duties; and, second, the statutory consideration that the =93clear and unambiguous meaning of s52(5)(a) of the Act of 1995 is that the beneficial claims of client creditors have to be satisfied in full before anybody else, even a contributor to the ultimate balance, has a call on the funds=94 ([2000] 3 IR 437, 449-450). She left for another day the question of these creditors=92 claims inter se, whether on the basis of Clayton=92s Case, pari passu, or some other basis (see [2000] 3 IR 437, 452) though in an earlier phase of the litigation she had cast significant doubt on Clayton's case. Eoin. PS If anyone is working on this area and would like a copy of the case (which does not yet seem to be available electronically) don't hesistate to ask. EOIN O'DELL BCL(NUI) BCL(Oxon) Editor, Dublin University Law Journal. Barrister, Lecturer in Law, Trinity College, Dublin 2, Ireland. (353/0 1) 608 1178 (w) 677 0449 (fx); (353/0 86) 286 0739 (m); eodell@tcd.ie (All opinions are personal. No legal responsibility whatsoever is accepted.) http://www.jokes.com/detail.asp?cat=3D-1&id=3D5915&sql=3D1 ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Wed, 25 Jul 2001 09:19:24 -0400 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: New Articles Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed > >Dear Professor Smith > >I am writing to you on behalf of the Singapore Journal of Legal Studies and >the Singapore Journal of International and Comparative Law. I would be >obliged if you could post the message below to members of the Restitution >Discussion Group. > >Yours sincerely > >Tang Hang Wu >Assitant Professor >National University of Singapore > > >Members of the restitution discussion group may be interested in the >following articles: > >P. Gilliker "Restitution, Reform And Illegality: An End To Transactional >Uncertainty?" in 2001 July issue of the Singapore Journal of Legal Studies > >CL Lim "On the Law, Procedures and Politics of United Nations Gulf War >Reparations" in (2000) 4 Singapore Journal of International and Comparative >Law 435 > >V Morabito"Compensation Orders Against Offenders- An Australian Perspective" >(2000) 4 Singapore Journal of International and Comparative Law 59 > >The SJLS and SJICL invite members of the Restitution Discussion Group to >submit papers which would be of interest to English speaking jurisdictions. >All enquiries on overseas subscription and submissions should be sent to: >lawthw@nus.edu.sg. The Singapore Journal of Legal Studies website can be >found at http://law.nus.edu.sg/sjls/index.htm > >Tang Hang Wu >Assistant Professor >Faculty of Law >National University of Singapore >13 Law Link >Singapore 117590 ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Sat, 28 Jul 2001 17:09:01 +0200 Reply-To: Piotr Mostowik Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Piotr Mostowik Organization: WP-PWN Subject: subscribe enrichment MIME-Version: 1.0 Content-Type: text/plain; charset=iso-8859-2 Content-Transfer-Encoding: 7bit ____________________________________________________________________ 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 enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email .