========================================================================= Date: Sun, 2 Dec 2001 13:08:23 +0000 Reply-To: =?iso-8859-1?q?bernard=20stebbings?= Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: =?iso-8859-1?q?bernard=20stebbings?= MIME-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit Hi all Does anyone know when the next number of the Restitution Law Review is to be printed, or what will be in it? TIA Bernard Stebbings __________________________________________________ Do You Yahoo!? Everything you'll ever need on one web page from News and Sport to Email and Music Charts http://uk.my.yahoo.com ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Mon, 3 Dec 2001 09:43:46 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: message from Andrew Burrows: Esso v Niad MIME-version: 1.0 Content-type: text/plain; charset="us-ascii"; format=flowed I am posting this on behalf of Prof. Andrew Burrows. For my own part, I add only one word to the discussion, based on my own experience of working for a large integrated oil company one summer, spending months verifying the calculations involved in keeping track of a scheme like this. That word, which may send many subscribers to one dictionary or another, is "ullage." Para. 19 suggests that Esso dispensed with this by using average stock, but the way we did it, when the price changed, everything turned on ullage ... Lionel ======= From Prof. Andrew Burrows: 1. Can anyone help with one aspect of Esso v Niad which is puzzling me and that I do not think has yet been discussed? Apart from compensation for expectation loss, Esso was held by Morritt VC to be entitled to two remedies: (1) an account of profits for breach of contract; (2) a so-called "restitutionary remedy". Morritt VC said , at para 64, that (2) was "the most appropriate remedy". But it is not clear to me what the difference is on these facts between (1) and (2). 2. As I understand it, there were two possible benefits gained by Niad by breaking the Pricewatch contract and charging higher prices than it should. The first was that Niad was given "price support" by Esso to which Niad was not entitled. This appears to mean that Niad were given higher margins, as referred to in paras 28 and 33, (or higher compensation under the stock valuation compensation scheme referred to in para 19) than Niad was entitled to. This "price support" meant that Niad paid less to Esso for its petrol than it should have done: eg para 19 tells us that the credit or debit was "accounted for in the price for the next fuel delivery". So Niad was benefiting from its breach of contract by paying less to Esso for its petrol than it should have done. The second possible benefit was that Niad was being paid more by its customers than the prices it should have charged. On the face of it there would be problems of proof here because higher prices ought to have meant less sales (although this might have been offset by Esso's pricewatch advertising). 3. One might be tempted then to think that remedy (1) was concerned with both (or perhaps just the second of) those possible benefits whereas remedy (2) was purely concerned with the first possible benefit. This interpretation would tie in with para 57 where Morritt VC said that an account of profits "is unlikely to yield by way of recompense the amount of additional price support obtained by Niad from Pricewatch which it did not pass on." Yet at paras 58 and 64 Morritt VC expressly referred to the second possible benefit as falling within (2) saying, eg, that the "restitutionary remedy... [would require] Niad to pay to Esso the amount by which the actual prices charged to customers exceeded the recommended prices" (para 58) and "Niad was enriched to the extent that it charged pump prices in excess of the recommended prices" (para 64). 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 6635,email . ========================================================================= Date: Mon, 3 Dec 2001 17:54:09 -0000 Reply-To: duncan.sheehan@uea.ac.uk Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Duncan Sheehan Subject: Re: Comments: To: bernard stebbings In-Reply-To: <20011202130823.18767.qmail@web21207.mail.yahoo.com> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit I believe that there will be no more RLRs. It has ceased publication. Duncan Sheehan > -----Original Message----- > From: Enrichment - Restitution & Unjust Enrichment Legal Issues > [mailto:ENRICHMENT@LISTS.MCGILL.CA]On Behalf Of bernard stebbings > Sent: Sunday, December 02, 2001 1:08 PM > To: ENRICHMENT@LISTS.MCGILL.CA > Subject: [RDG:] > > > Hi all > > Does anyone know when the next number of the > Restitution Law Review is to be printed, or what will > be in it? > > > TIA > > Bernard Stebbings > > __________________________________________________ > Do You Yahoo!? > Everything you'll ever need on one web page from News and Sport > to Email and Music Charts > http://uk.my.yahoo.com > > ____________________________________________________________________ > 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 6635,email > . > ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Tue, 4 Dec 2001 09:53:46 -0000 Reply-To: "Peter B. H. Birks" Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "Peter B. H. Birks" Organization: All Souls College, Oxford Subject: RLR MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit The short message from Duncan Sheehan tells only a small part of the story. It is true, as I understand it, that LLP has decided to cease publication, but the RLR will come out. Francis Rose is fighting to get LLP to release the name. I cannot see why he should not succeed in that. When he does succeed, the RLR will come out. It is ready to go. Neither as a paying subscriber nor as consultant editor have I received one word of notification from LLP of this demise. That is the least of their misdoings in this respect. In my view they wrecked the RLR without regard to its quality and without making any effort at all to market it to the people who wanted it. For gratuitously callous damage, I know no parallel example. However, you may all be sure that Phoenix-like it will rise from the ashes. No doubt Francis Rose will add something to this message. Peter BH Birks QC DCL FBA Regius Professor of Civil Law All Souls College, Oxford, OX1 4AL Tel: 44-(0)1865-279379 Fax 44-(0)1865-279299 Home: Oak Trees, Sandy Lane, Boars Hill, OX1 5HN Tel: 44-(0)1865-735625 ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Tue, 4 Dec 2001 10:05:41 -0000 Reply-To: Andrew Burrows Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Andrew Burrows Organization: University of Oxford Faculty of Law Subject: Re: Comments: To: duncan.sheehan@uea.ac.uk MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit Dear All, Rumours of the death of the RLR are, I believe, premature.My understanding is that the Restitution Law Review may yet be saved and that Professor Frank Rose is dealing with this. Andrew Burrows ----- Original Message ----- From: Duncan Sheehan To: Sent: Monday, December 03, 2001 5:54 PM Subject: Re: [RDG:] > I believe that there will be no more RLRs. It has ceased publication. > > Duncan Sheehan > > > -----Original Message----- > > From: Enrichment - Restitution & Unjust Enrichment Legal Issues > > [mailto:ENRICHMENT@LISTS.MCGILL.CA]On Behalf Of bernard stebbings > > Sent: Sunday, December 02, 2001 1:08 PM > > To: ENRICHMENT@LISTS.MCGILL.CA > > Subject: [RDG:] > > > > > > Hi all > > > > Does anyone know when the next number of the > > Restitution Law Review is to be printed, or what will > > be in it? > > > > > > TIA > > > > Bernard Stebbings > > > > __________________________________________________ > > Do You Yahoo!? > > Everything you'll ever need on one web page from News and Sport > > to Email and Music Charts > > http://uk.my.yahoo.com > > > > ____________________________________________________________________ > > 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 6635,email > > . > > > > ____________________________________________________________________ > 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 6635,email > . > ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Tue, 4 Dec 2001 11:10:07 +0000 Reply-To: James Edelman Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: James Edelman Subject: Response to Andrew Burrows Content-Type: text/plain Mime-Version: 1.0 A few thoughts on the measures of the awards in the Esso case in response to the questions posed by Professor Burrows. THE ACCOUNT OF PROFITS/ DISGORGEMENT DAMAGES First, the account of profits. No doubt the V-C had in his mind the injunction of Lord Nicholls and a number of cases before Blake as well as after Blake which have emphasised that an account of profits is not to be measured by saved expense or 'skimped performance'. This is made far clearer in the Celanese case [1999] RPC where the judgment of Laddie J focuses in great detail and trawls through many of the cases where the measure of the account of profits is in issue. In this case, and the IP cases which have recently followed it, the 'saved expense' approach to the account of profits is rejected. Laddie J gives a number of reasons for this. A practical example is a variant of Seager v Copydex. The saved expense might be the cost of employing a consultant to develop the design. But the profit made from the wrongful design might be enormous and far greater. The account of profits focuses on the profit made subject to an allowance. Much can be said comparing these tw! o approaches and I refer to this in much more detail elsewhere. Niad's failure to 'pass on' any of the price support to its customers was skimped performance. The difference between price charged and "recommended price" (which was skimped) did not mean that any actual profit was made as a result of the breach at all, merely that an expense was saved. The second possible measure raised by Professor Burrows is a measure based on the benefit being the additional "price support" paid by Esso. But this is not profit made as a result of the BREACH of contract. This was a right which accrued well before the breach. However, this value might be relevant (and particularly in the US) as an indicia of the value transferred from the breach where that value has not been prescribed in money terms in the contract (in this case it has: see below). Thus, the account of profits cannot be measured by the fact that Niad paid less for its petrol or by the amount of any skimped performance. It must be measured by the actual profit. In this case Niad realised this and argued that there was NO actual profit: they pointed to the fact that profitability had declined as a result of Pricewatch. In other words, the Pricewatch agreement resulted in LESS profit and hence the agreement was loss making. However, the V-C suggested a broad view of the agreement. By viewing Pricewatch as fundamental to supply of petrol itself he seemed to be viewing the breach of contract as the selling of the petrol itself. So the small margin of profit that was made from the sale of petrol was the profit from the breach of contract. RESTITUTIONARY DAMAGES Apart from the reference to this remedy as one for "unjust enrichment", I agree with the V-C's approach to measurement in this instance as well. Restitutionary damages, unlike the account of profits, are measured by value transferred. Perhaps what caused the confused reference to unjust enrichment is that the measure of 'value transferred' is identical to 'enrichment at the expense of' in unjust enrichment; thus the correspondence of restitutionary damages for the breach of contract to an equivalent measure of restitution in unjust enrichment seems to have lead the Vice Chancellor to conflate the two concepts. The relevant value (or, more properly, contractual rights) was the right that Esso had for its petrol to be sold at recommended prices. The amount by which Niad sold under those prices represents value transferred. Jamie Edelman ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Tue, 4 Dec 2001 11:48:11 -0000 Reply-To: duncan.sheehan@uea.ac.uk Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Duncan Sheehan Subject: Re: Comments: To: bernard stebbings In-Reply-To: <20011202130823.18767.qmail@web21207.mail.yahoo.com> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit My apologies to you all. I have been guilty of an unwitting misrepresentation. It has not closed down yet. Duncan Sheehan > -----Original Message----- > From: Enrichment - Restitution & Unjust Enrichment Legal Issues > [mailto:ENRICHMENT@LISTS.MCGILL.CA]On Behalf Of bernard stebbings > Sent: Sunday, December 02, 2001 1:08 PM > To: ENRICHMENT@LISTS.MCGILL.CA > Subject: [RDG:] > > > Hi all > > Does anyone know when the next number of the > Restitution Law Review is to be printed, or what will > be in it? > > > TIA > > Bernard Stebbings > > __________________________________________________ > Do You Yahoo!? > Everything you'll ever need on one web page from News and Sport > to Email and Music Charts > http://uk.my.yahoo.com > > ____________________________________________________________________ > 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 6635,email > . > ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Tue, 4 Dec 2001 11:58:52 -0000 Reply-To: "Worthington,S" Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "Worthington,S" Subject: Re: Comments: To: "duncan.sheehan@uea.ac.uk" MIME-Version: 1.0 Content-Type: text/plain I thought it had gone back to old ownership and would come out once a year again??? Sarah Worthington -----Original Message----- From: Duncan Sheehan [SMTP:duncan.sheehan@UEA.AC.UK] Sent: 03 December 2001 17:54 To: ENRICHMENT@LISTS.MCGILL.CA Subject: Re: [RDG:] I believe that there will be no more RLRs. It has ceased publication. Duncan Sheehan > -----Original Message----- > From: Enrichment - Restitution & Unjust Enrichment Legal Issues > [mailto:ENRICHMENT@LISTS.MCGILL.CA]On Behalf Of bernard stebbings > Sent: Sunday, December 02, 2001 1:08 PM > To: ENRICHMENT@LISTS.MCGILL.CA > Subject: [RDG:] > > > Hi all > > Does anyone know when the next number of the > Restitution Law Review is to be printed, or what will > be in it? > > > TIA > > Bernard Stebbings > > __________________________________________________ > Do You Yahoo!? > Everything you'll ever need on one web page from News and Sport > to Email and Music Charts > http://uk.my.yahoo.com > > ____________________________________________________________________ > 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 6635,email > . > ____________________________________________________________________ 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 6635,email . ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Tue, 4 Dec 2001 18:12:27 -0000 Reply-To: Francis Rose Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Francis Rose Subject: Re: Comments: To: "Worthington,S" MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Not so much of the "old", thank you. It obviously does not pay to stay away from one's machine; or to wait until everything is properly in place before making an announcement. As has been intimated, Mark Twain got it right. LLP/Informa purchased the RLR in 2000 and ceased publication around Easter 2001. By agreement with Informa, it is (though, more slowly than originally anticipated) reverting to private ownership. And that's where it will stay. The latest volume is currently in the press, for publication this month. A more detailed announcement will be made within the next few days (and I will be grateful if enquiries could be put on hold until then). The full contents will also be published. I don't recall the full list off the top of my head - but it includes a book review by Duncan Sheehan! Phoenix-like is not quite accurate. All things must pass eventually but it will be a long time before this journal gets to the end of the line. I hope that those who have sent me emails on this matter will accept this as a response. Your continued interest and support - and patience - as gratifying as it is expected. Next year everything will be back to normal. Francis Rose Editor, RLR -----Original Message----- From: Worthington,S To: ENRICHMENT@LISTS.MCGILL.CA Sent: 12/4/01 11:58 AM Subject: Re: [RDG:] I thought it had gone back to old ownership and would come out once a year again??? Sarah Worthington -----Original Message----- From: Duncan Sheehan [SMTP:duncan.sheehan@UEA.AC.UK] Sent: 03 December 2001 17:54 To: ENRICHMENT@LISTS.MCGILL.CA Subject: Re: [RDG:] I believe that there will be no more RLRs. It has ceased publication. Duncan Sheehan > -----Original Message----- > From: Enrichment - Restitution & Unjust Enrichment Legal Issues > [mailto:ENRICHMENT@LISTS.MCGILL.CA]On Behalf Of bernard stebbings > Sent: Sunday, December 02, 2001 1:08 PM > To: ENRICHMENT@LISTS.MCGILL.CA > Subject: [RDG:] > > > Hi all > > Does anyone know when the next number of the > Restitution Law Review is to be printed, or what will > be in it? > > > TIA > > Bernard Stebbings > > __________________________________________________ > Do You Yahoo!? > Everything you'll ever need on one web page from News and Sport > to Email and Music Charts > http://uk.my.yahoo.com > > ____________________________________________________________________ > 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 6635,email > . > ____________________________________________________________________ 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 6635,email . ____________________________________________________________________ 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 6635,email . ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Thu, 6 Dec 2001 06:25:23 +0000 Reply-To: James Edelman Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: James Edelman Subject: [RDG]: Windfalls, cigarettes, and restitution in the High Court of Australia Content-Type: text/plain Mime-Version: 1.0 Today the High Court of Australia decided Roxborough v Rothmans of Pall Mall Australia Limited [2001] HCA 68. See www.austlii.edu.au Several judgments were delivered in relation to a claim for failure of consideration (a joint judgment by Gleeson CJ, Gaudron and Hayne JJ, a judgment by Gummow J one by Kirby J and one by Callinan J). The facts involved two parties that worked out their commercial dealings on the basis of a state licence fee that must be paid. That state licence fee is struck down by the High Court as an excise. The tobacco retailer claimed a refund of tax contractually paid in advance to the wholesaler that was now not liable to pay it to the government. The wholesaler argued that the consideration had not failed and that, in any event, the defence of passing on applied. The majority allow the claim for failure of consideration and reject any defence of passing on. The joint judgment and judgment of Gummow J emphasises: 1. that the claim for failure of consideration is not confined to a contractual regime and extends to payments made on any basis which fails. 2. The meaning of 'at the expense of' enunciated by Mason J in Royal Insurance is approved as a subtraction from the wealth of the plaintiff. This would, for example, exclude an account of profits from the field of unjust enrichment and from the meaning of restitution (a point which the High Court also made in Maguire v Makaronis). 3. Passing on is rejected as a defence. Gummow J also comments at length on the nature of claims in restitution and the nature of unjust enrichment and emphasises that unjust enrichment is not a generic formula but useful merely as a concept, although he also suggests that even as a genus there has been considerable Australian scepticism that unjust enrichment is such a genus which is all embracing many particular species. ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Mon, 10 Dec 2001 15:54:25 +0000 Reply-To: Steve Hedley Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Steve Hedley Subject: Condictio Archerii rediviva Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Daily Telegraph Monday 10 December 2001 Tabloid sues Archer to get its money back=20 By Rajeev Syal (Filed: 09/12/2001)=20 LORD Archer is being sued by the News of the World for =A3130,000, representing money paid 14 years ago in "compensation" for articles about his relationship with a prostitute. A High Court writ shows that the tabloid newspaper, owned by Rupert Murdoch, wants a refund after the conviction of Archer for lying under oath this year. The development will surprise many readers of the newspaper famous for its coverage of sex scandals, because its editor is usually the defendant in High Court cases. The articles in question appeared in 1986 after Monica Coghlan contacted Archer asking him to help avoid the interests of journalists. Unknown to him, she was working with the News of the World. Miss Coghlan was then photographed as she was paid money by Michael Stacpoole, Archer's associate, on a platform at Victoria Station.=20 On October 26, the newspaper ran the story under the headlines "Tory boss Archer pays off vice girl", "The money will be in the package . . . Go abroad quickly" and "Tory whizzkid faces weeping wife". The Daily Star followed up the story and was sued by Archer in the famous libel trial - leading to then record damages of =A3500,000 paid to Lord= Archer.=20 After the trial, the News of the World agreed to pay damages of =A350,000 to Archer with costs of =A332,000 in return for a guarantee that he would not sue over the articles. Now the newspaper wants the money back plus interest and costs. The Daily Star is demanding =A32.2 million from Archer, and executives say they hope to reach a settlement in the near future.=20 Archer is currently in Weyland prison, Norfolk, serving a four-year sentence for perjury and perverting the course of justice. Steve Hedley =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D= =3D 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 =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D= =3D ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Wed, 12 Dec 2001 08:52:30 +1000 Reply-To: James Douglas Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: James Douglas Subject: Port of Brisbane Corporation v ANZ Securities Limited [2001] QSC 466 Mime-version: 1.0 Content-type: multipart/alternative; boundary="MS_Mac_OE_3090991950_19510370_MIME_Part" > This message is in MIME format. Since your mail reader does not understand this format, some or all of this message may not be legible. --MS_Mac_OE_3090991950_19510370_MIME_Part Content-type: text/plain; charset="ISO-8859-1" Content-transfer-encoding: quoted-printable In Port of Brisbane Corporation v ANZ Securities Limited [2001] QSC 466 the Queensland Supreme Court considered the change of position defence to a restitutionary claim. The plaintiff was a Port Authority whose employee, H, altered the plaintiff=B9s cheque to make it payable to the defendant stockbroker, ANZ Securities. ANZ Securities' name was similar to the name of a bank where the Port Authority invested money. H's company, W, had opened an account with ANZ Securities through a Hong Kong trustee company and deposited the cheque to the stockbroker's account. His Honour found that ANZ Securities could not deal with the monies reasonably without first identifying the drawer of the cheque and the intended payee. His reasons included the larg= e amount of the cheque (A$4.5m.), the fact that this was the first occasion o= n which ANZ Securities had had any involvement with W and the lack of difficulty associated with identifying the drawer of the cheque which was, itself, a statutory corporation unlikely to be trading in shares in the manner proposed by W. Chesterman J found, applying the ratio in State Bank of New South Wales Limited v. Swiss Bank Corporation (1995) 39 NSWLR 350, that the defence was not available because the defendant did not act on the faith of the receipt because it did not inquire of the payer, the plaintiff, how the money shoul= d be disbursed. He also seemed inclined to limit the defence to circumstance= s where the recipient of the money had acted reasonably in spending the money paid to it. In those circumstances he did not allow the defence of change of position simply where it could be shown that ANZ Securities acted in goo= d faith and incurred a detriment after it had received the payment by paying out a large part of the proceeds on W's instructions. There were other interesting issues that arose. His Honour dismissed an argument that the defendant had not been enriched because it received the money merely as a trustee. He recognised that if a trustee parts with mone= y in these circumstances it does so to benefit someone else and obtains no advantage for itself but said that "the consequence is not, in my opinion, that payment has not been made to the trustee so that it has not been =8Cenriched=B9". In doing so he did not refer explicitly to the view expressed by Lord Millett in Foskett v McKeown [2001] 1 AC 102, 129E-F that: "A plaintiff who brings an action in unjust enrichment must show that the defendant has been enriched at the plaintiff's expense, for he cannot have been unjustly enriched if he has not been enriched at all" although he used language redolent of that proposition at [28]. He took the view at [32] that "The law would be odd indeed if in equity the defendant must pay the money over but at law be entitled to retain it because the money was held o= n a trust, and one for the plaintiff at that". With respect that approach appears to confuse the existence of the remedy of a constructive trust with the issue whether there has been an unjust enrichment. His Honour also found that there was a resulting trust even in circumstance= s where the money had been paid on innocently by the defendant trustee. ANZ Securities sought to characterise the situation as creating a constructive trust that would arise only if it had sufficient knowledge of the facts to make it inequitable or unconscionable for it not to regard the money as belonging to the plaintiff. His Honour found that the absence of a constructive trust did not mean that there was not a resulting trust of the money in favour of the plaintiff subject to the applicability of the statutory defence to a breach of trust where the trustee acted honestly and reasonably and ought fairly to be excused for the breach. The consequence then is that, in circumstances such as these, where a trustee has received stolen money in good faith and acted honestly but unreasonably in failing to verify with the payer of the cheque its (the trustee's) authority to deal with the funds, then it will be unable to resist a claim in restitution even where it has changed its position. The full reasons may be found in PDF format at: http://www.courts.qld.gov.au/qjudgment/sc01_451.htm It will be interesting to see whether the case goes on appeal and how any subsequent courts deal with these issues. JAMES DOUGLAS QC --MS_Mac_OE_3090991950_19510370_MIME_Part Content-type: text/html; charset="ISO-8859-1" Content-transfer-encoding: quoted-printable Port of Brisbane Corporation v ANZ Securities Limited [2001] QSC 466= In Port of Brisbane Corporation v ANZ Securities Limited [2001] QSC = 466 the Queensland Supreme Court considered the change of position defence t= o a restitutionary claim.

The plaintiff was a Port Authority whose employee, H, altered the plaintiff= =B9s cheque to make it payable to the defendant stockbroker, ANZ Securities. &= nbsp;ANZ Securities' name was similar to the name of a bank where the Port A= uthority invested money.  H's company, W, had opened an account with AN= Z Securities through a Hong Kong trustee company and deposited the cheque to= the stockbroker's account.  His Honour found that ANZ Securities could= not deal with the monies reasonably without first identifying the drawer of= the cheque and the intended payee.  His reasons included the large amo= unt of the cheque (A$4.5m.), the fact that this was the first occasion on wh= ich ANZ Securities had had any involvement with W and the lack of difficulty= associated with identifying the drawer of the cheque which was, itself, a s= tatutory corporation unlikely to be trading in shares in the manner proposed= by W.

Chesterman J found, applying the ratio in State Bank of New South Wales = Limited v. Swiss Bank Corporation (1995) 39 NSWLR 350, that the defence = was not available because the defendant did not act on the faith of the rece= ipt because it did not inquire of the payer, the plaintiff, how the money sh= ould be disbursed.  He also seemed inclined to limit the defence to cir= cumstances where the recipient of the money had acted reasonably in spending= the money paid to it.  In those circumstances he did not allow the def= ence of change of position simply where it could be shown that ANZ Securitie= s acted in good faith and incurred a detriment after it had received the pay= ment by paying out a large part of the proceeds on W's instructions.

There were other interesting issues that arose.  His Honour dismissed = an argument that the defendant had not been enriched because it received the= money merely as a trustee.  He recognised that if a trustee parts with= money in these circumstances it does so to benefit someone else and obtains= no advantage for itself but said that "the consequence is not, in my o= pinion, that payment has not been made to the trustee so that it has not bee= n =8Cenriched=B9".  In doing so he did not refer explicitly to the vie= w expressed by Lord Millett in Foskett v McKeown [2001] 1 AC 102, 129= E-F that: "A plaintiff who brings an action in unjust enrichment must s= how that the defendant has been enriched at the plaintiff's expense, for he = cannot have been unjustly enriched if he has not been enriched at all" = although he used language redolent of that proposition at [28].  He too= k the view at [32] that "The law would be odd indeed if in equity the d= efendant must pay the money over but at law be entitled to retain it because= the money was held on a trust, and one for the plaintiff at that". &nb= sp;With respect that approach appears to confuse the existence of the remedy= of a constructive trust with the issue whether there has been an unjust enr= ichment.

His Honour also found that there was a resulting trust even in circumstance= s where the money had been paid on innocently by the defendant trustee. ANZ = Securities sought to characterise the situation as creating a constructive t= rust that would arise only if it had sufficient knowledge of the facts to ma= ke it inequitable or unconscionable for it not to regard the money as belong= ing to the plaintiff.  His Honour found that the absence of a construct= ive trust did not mean that there was not a resulting trust of the money in = favour of the plaintiff subject to the applicability of the statutory defenc= e to a breach of trust where the trustee acted honestly and reasonably and o= ught fairly to be excused for the breach.

The consequence then is that, in circumstances such as these, where a trust= ee has received stolen money in good faith and acted honestly but unreasonab= ly in failing to verify with the payer of the cheque its (the trustee's) aut= hority to deal with the funds, then it will be unable to resist a claim in r= estitution even where it has changed its position.

The full reasons may be found in PDF format at:
http://www.courts.qld.gov.au/qjudgment/sc01_451.htm

It will be interesting to see whether the case goes on appeal and how any s= ubsequent  courts deal with these issues.

JAMES DOUGLAS QC
 --MS_Mac_OE_3090991950_19510370_MIME_Part-- ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Fri, 14 Dec 2001 09:06:39 +0000 Reply-To: Andrew Tettenborn Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Andrew Tettenborn Subject: contribution Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Contribution buffs may like to look at the CA's decision in Hurstwood v MGA, 21/11/01(available on Casetrack), with its expansive interpretation of what counts as the "same damage" within the Civil Liability (Cont) Act 1978. Builder's subcontractor does a bum job, and as a result the builder is liable to the client for the cost of clearing up the mess. Builder's insurance broker has blundered, as a result of which Builder is uninsured and has to sub up out of his own pocket. Can Broker get contribution / indemnity from Subcontractor on the basis that the latter would have been liable to Builder? CA, reversing TCC, say Yes. Basically, all that matters is that payment by either party would in fact reduce/ cancel the other's liability: if it would, contribution is available. Interestingly, it was conceded by counsel that payment by Broker to Builder would relieve Subcontractor, even though payment by Underwriter (which Broker had negligently deprived Builder of) would not have done so because of the collateral source rule. Andrew Andrew Tettenborn MA LLB Bracton Professor of Law Tel: 01392-263189 / +44-392-263189 (international) Mobile: 07813-478102 Fax: 01392-263196 / +44-392-263196 (international) Snailmail: School of Law, University of Exeter, Amory Building, Rennes Drive, Exeter EX4 4RJ England [ Homepage: http://www.ex.ac.uk/law/ ]. ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Fri, 14 Dec 2001 09:48:19 -0000 Reply-To: Anthony de Garr Robinson Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Anthony de Garr Robinson Subject: Re: contribution Comments: To: Andrew Tettenborn MIME-Version: 1.0 Content-Type: text/plain Is this because the insurer could have subrogated to the builder's rights against the sub-contractor but the broker could not? > ---------- > From: Andrew Tettenborn[SMTP:A.M.Tettenborn@EXETER.AC.UK] > Reply To: Andrew Tettenborn > Sent: 14 December 2001 09:06 > To: ENRICHMENT@LISTS.MCGILL.CA > Subject: [RDG:] contribution > > Contribution buffs may like to look at the CA's decision in Hurstwood v > MGA, 21/11/01(available on Casetrack), with its expansive interpretation > of > what counts as the "same damage" within the Civil Liability (Cont) Act > 1978. > > Builder's subcontractor does a bum job, and as a result the builder is > liable to the client for the cost of clearing up the mess. Builder's > insurance broker has blundered, as a result of which Builder is uninsured > and has to sub up out of his own pocket. Can Broker get contribution / > indemnity from Subcontractor on the basis that the latter would have been > liable to Builder? CA, reversing TCC, say Yes. Basically, all that matters > is that payment by either party would in fact reduce/ cancel the other's > liability: if it would, contribution is available. > > Interestingly, it was conceded by counsel that payment by Broker to > Builder > would relieve Subcontractor, even though payment by Underwriter (which > Broker had negligently deprived Builder of) would not have done so because > of the collateral source rule. > > > Andrew > > > > > Andrew Tettenborn MA LLB > Bracton Professor of Law > > > Tel: 01392-263189 / +44-392-263189 (international) > Mobile: 07813-478102 > Fax: 01392-263196 / +44-392-263196 (international) > > > Snailmail: School of Law, > University of Exeter, > Amory Building, > Rennes Drive, > Exeter EX4 4RJ > England > > [ Homepage: http://www.ex.ac.uk/law/ ]. > > ____________________________________________________________________ > 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 6635,email > . > ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Mon, 17 Dec 2001 12:38:16 -0000 Reply-To: Francis Rose Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Francis Rose Subject: RESTITUTION LAW REVIEW MIME-Version: 1.0 Content-Type: text/plain; charset="utf-8" Content-Transfer-Encoding: 8bit Volume 9 [2001] RLR Autumn 2001 RESTITUTION LAW REVIEW ______________________________________________________________ CONTENTS Articles The Recovery of Money Paid Under Judgments Later Reversed BEN McFARLANE Unjust Enrichment: A Reply to Professor Weinrib MITCHELL MCINNES Establishing Estoppel After the Recognition of Change of Position EUGENE FUNG and LUSINA HO Illegality and Restitution as a matter of Policy Considerations (A Comparative Analysis of Dutch, English and German Law) HUGO J VAN KOOTEN Comment Interest, Constructive Trusts and the Conflict of Laws Revisited (Kotco v Al Bader) GRAHAM VIRGO Subrogation to Rights of Indemnity (Caledonia v London Bridge) ROBERT WILLIAMS Dispositions of Company Property Post Presentation of Winding-up Petitions and the Plight of Banks (Hollicourt v Bank of Ireland) PROFESSOR ANDREW KEAY Constructive Trust Protects Unpaid Vendor (Ellingsen v Hallmark) SUSAN BARKEHALL THOMAS No New Landmark - An Unconscionable Mess in Knowing Receipt (BCCI v Akindele) JOHN STEVENS The Compensation Strait-Jacket and the Lost Opportunity to Bargain Fiction (Gondal v Dillon) DR JAMES EDELMAN Regional Digest Asia Pacific T M YEO Australia PETER BUTLER Canada ASSOCIATE PROFESSOR LIONEL SMITH England and Wales GERARD McMEEL European Union Ireland EOIN O'DELL New Zealand PROFESSOR PETER WATTS Scotland WILLIAM STEWART South Africa PROFESSOR DANIEL VISSER U S A PROFESSOR ANDREW KULL Law Report Gondal v Dillon Newsagents Ltd Review Article The Nature and Scope of Restitution by Peter Jaffey KIT BARKER Book Reviews Restitution and Equity: Vol 1: Resulting Trusts and Equitable Compensation edited by Peter Birks and Francis Rose T M YEO The Principles of the Law of Restitution by Graham Virgo DUNCAN SHEEHAN Restitution and European Community Law by Alison Jones PROFESSOR STEPHEN WEATHERILL Restitution and Insolvency edited by Francis Rose FELICITY TOUBE Restitution Law: Text, Cases and Materials by Sharon Erbacher EOIN O'DELL Zwendungsrisiko und Restitutionsinteresse by Lutz-Christian Wolff DR THOMAS KREBS Contemporary Property Law edited by Paul Jackson and David C Wilde Property Law: Current Issues and Debates edited by Paul Jackson and David C Wilde DR JAMES PENNER Personal Property Law: Text and Materials by Sarah Worthington PROFESSOR ANDREW TETTEMBORN Onverschuldigde Betaling en Ongerechtvaardigde Verrijking bij Zogenaamde Driehoeksverhoudingen by HCF Schoordijk PROFESSOR DANIEL VISSER Change and Continuity: Statute, Equity and Federalism by Hon William MC Gummow DR JAMES EDELMAN All editorial correspondence should be sent to: Professor F.D. Rose, Faculty of Law, University of Bristol, Wills Memorial Building, Queen's Road, Bristol BS8 1RJ, United Kingdom (email: Francis.D.Rose@bristol.ac.uk) SUBSCRIPTIONS One issue of the Restitution Law Review is published annually. The subscription for 2001 is Standard Rate: UK and Europe ï€50; Rest of the World (except North America) ï€55. Reduced Rate for Individual Academics: UK and Europe ï€28; Rest of the World (except North America) ï€32. Student rate available on application. Prices include postage at surface rate. All prices are payable in sterling net of bank charges. Cheques should be made payable to "Restitution Law Review." Subscribers other than in North America should write to Restitution Law Review, P.O. Box 639, Oxford OX3 7HD, U.K. North American subscriptions. Subscriptions for the USA and Canada are dealt with by our exclusive distributor for North America. All enquiries should be directed to: Wm W Gaunt & Sons Inc, Gaunt Building, 3011 Gulf Drive, ____________________________________________________________________ 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 6635,email .