Date: Thu, 2 May 2002 18:27:43 +0100 Reply-To: Eoin O'Dell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Eoin O'Dell Subject: Unjust Enrichment, Irish Style - The Appeal Mime-Version: 1.0 Content-Type: text/plain; charset="ISO-8859-1" Content-Transfer-Encoding: quoted-printable Hello all >From today's Irish Times by way of follow up to my message in January under the above heading bringing the attention of the list to an interesting claim of unjust enrichment by wrongdoing; it seems that there is to be an appeal: ________________________ Begin Extract ________________________ Jackson Way to appeal bar on =80116m claim By Paul Cullen A property company under investigation by the Flood tribunal is to take its battle for a =80116 million land compensation claim to the Supreme Court. Jackson Way Properties has decided to appeal a decision by the High Court to prevent the company's claim for compensation from D=FAn Laogh-aire/Rathdown County Council being heard by an arbitrator. The claim, which relates to the compulsory acquisition of land for the construction of Dublin's South-Eastern motorway, is unlikely to be heard until the tribunal completes its investigations into Jackson Way. The tribunal is examining allegations that Jackson Way paid money to county councillors in connection with the rezoning of its land at Carrickmines in south Dublin in the early 1990s. The previous owner of the land, Paisley Park Investments, is also alleged to have paid money. Jackson Way denies the bribery allegations. Tribunal lawyers have experienced great difficulty in establishing the ownership of the two companies and told an earlier court hearing of their belief that both companies share the same Irish owners. The council argued in the High Court in January that, if these allegations were proved, Jackson Way's claim and any award made on foot of it would constitute "unjust enrichment" of the company. The 106-acre parcel of land now owned by Jackson Way was originally sold by two farmers for =A3540,000 in 1988. Jackson Way's current compensation claim relates solely to 22 acres which were acquired for the motorway. The company's claim includes =8024 million for the land, =8060 million for "injurious affection" and =807.62 million for "disturbance". ________________________ End Extract ________________________ Eoin. 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); eodell@tcd.ie (All opinions are personal. No legal responsibility whatsoever is accepted.) ____________________________________________________________________ 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, 10 May 2002 12:33:29 +0100 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Subject: Resulting trusts and shared homes Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Carlton v Goodman [2002] EWCA Civ 545 - available on-line at www2.bailii.org - is a shared homes case in which the CA had to decide whether the legal owner of property held it on resulting trust for her deceased partner's estate. At paras 23 ff Mummery LJ notes the Birks and Chambers v Swadling / Lord Millett v Lord B-W debate vis-a-vis the true nature of RTs, but concludes that it doesn't matter who is right because the result would be the same either way. This debate is often portrayed as a head to head between two versions of the presumption which is made about the transferor's intention when he transfers property for no consideration -'transferor didn't intend to benefit recipient' vs 'transferor intended recipient to be his trustee'. But in fact Lord B-W says something slightly different from the second of these in Westdeutsche at [1996] AC 669, 708, namely that he thinks the key question is whether it is 'the common intention of the transferor and the recipient that the recipient should be the transferor's trustee'. And in Carlton v Goodman, Mummery LJ - along with Laws and Ward LJJ - follow this, referring to the common intention of the parties as being the relevant intention in their judgments. In principle, though, this can't be right, and it stems from a failure to distinguish properly between resulting trusts and common intention constructive trusts. In principle, the only person whose intention should count in a resulting trust case is the intention of the transferor, whichever of the two presumptions is thought correct - a point made clearly and convincingly by Robert Chambers in his book on Resulting Trusts at p 37, text to nn 206-9, and again by John Mee in his book, The Property Rights of Cohabitees, at pp 39-43. Charles ________________________________________________________________________ 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 6635,email . ========================================================================= Date: Sun, 12 May 2002 05:07:49 -0400 Reply-To: Look Chan Ho Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Look Chan Ho Subject: Proprietary Restitution and Insolvency The US 2nd Circuit Court of Appeals issued an interesting decision in SEC v Loewenson (May 09, 2002). Simplifying the facts somewhat, the appellant was one of the many investors who transferred various assets to a fraudster company running a classic Ponzi scheme, paying investors a return out of the assets transferred by later investors. The company incurred substantial losses from currency futures and options trading, and ultimately went into receivership. The appellant had transferred 8 million shares to the company which were still held in the company's brokerage accounts at the time of receivership. Unsurprisingly the appellant sought a return of those shares. One of the arguments put forward was that the shares were transferred pursuant to a fraud perpetrated by the company so that the shares were subject to a constructive trust. Without deciding expressly whether there was indeed a constructive trust, the court disposed of the appellant's argument by saying "whatever beneficial interest [the appellant] might have in the transferred shares, arising from a constructive trust, does not defeat the equitable authority of the District Court to treat all the fraud victims alike (in proportion to their investments) and order a pro rata distribution." In other words, the shares formed part of the "receivership estate of the defrauding company for purposes of a pro rata distribution to the defrauded victims." The effect of this decision seems to be that proprietary restitution is unavailable only when it is most needed. Can this occur in other jurisdictions? ____________________________________________________________________ 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. 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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, 13 May 2002 22:43:38 +0800 Reply-To: CHONG_Chin_Chin@SUPCOURT.GOV.SG Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: CHONG_Chin_Chin@SUPCOURT.GOV.SG Subject: Chin Chin CHONG/SUPCOURT/SINGOV is out of the office. MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii I will be out of the office starting 13/05/2002 and will not return until 15/05/2002. ____________________________________________________________________ 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, 13 May 2002 10:51:18 -0400 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Re: Proprietary Restitution and Insolvency In-Reply-To: MIME-version: 1.0 Content-type: text/plain; format=flowed; charset=us-ascii This is more or less what happened in the original Ponzi case in the US Supreme Court. It could happen in other jurisdictions. It is more or less what happened in Goldcorp. If you view the Ponzi transaction as fraudulently induced, then according to most (but see Chambers on Resulting Trusts and Dominic O' Sullivan's article in the new LQR), you do not have any proprietary interest until you avoid, and as in Goldcorp, it may be too late to avoid if the receivership has arrived. Lionel >The effect of this decision seems to be that proprietary restitution is >unavailable only when it is most needed. Can this occur in other >jurisdictions? > >____________________________________________________________________ > 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, 13 May 2002 11:26:58 -0400 Reply-To: Look Chan Ho Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Look Chan Ho Subject: Proprietary Restitution and Insolvency Lionel Smith wrote: "It could happen in other jurisdictions ... If you view the Ponzi transaction as fraudulently induced, then according to most ... you do not have any proprietary interest until you avoid, and as in Goldcorp, it may be too late to avoid if the receivership has arrived." If there isn't a proprietary interest at the time of receivership (whichever theory one uses to reach this conclusion), this 2nd Cir. decision is hardly novel. I suppose the novelty in this decision lies in the fact that the court was willing to convert an existing proprietary claim into a personal claim when insolvency intervenes. Had those shares been transferred pursuant to an express trust, the court was even prepared to "confront the issue of whether the equitable interests of the settlor of an inter vivos trust may be adjusted by a pro rata distribution ordered by a district court, exercising its equitable jurisdiction in an SEC-initiated receivership proceeding, to remedy fraud perpetrated upon the settlor and other victims." Can the courts in other jurisdictions exercise this sort of "expropriatory" power to further the goals of insolvency distribution? Look ____________________________________________________________________ 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, 13 May 2002 12:06:28 -0400 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Re: Proprietary Restitution and Insolvency In-Reply-To: MIME-version: 1.0 Content-type: text/plain; format=flowed; charset=us-ascii The US federal courts claim a jurisdiction in bankruptcy which they call "equitable subordination." It is a kind of reverse constructive trust: a jurisdiction to lower somebody's priority in the bankruptcy rather than to raise it, when the court thinks there is some abuse of the principles of insolvency. As to whether this is transplantable to other jurisdictions, there is an excellent and comprehensive recent study of whether it might travel to Canada: Thomas G.W. Telfer, "Transplanting equitable subordination: the new free-wheeling equitable discretion in Canadian insolvency law?" (2001) 36 Can. Bus. L.J. 36-88. Stout traditionalists will of course dismiss this as rubbish. It is the usual dispute as to how quickly the law can be developed by judges vs. what properly belongs to the legislature. L >If there isn't a proprietary interest at the time of receivership >(whichever theory one uses to reach this conclusion), this 2nd Cir. >decision is hardly novel. I suppose the novelty in this decision lies in >the fact that the court was willing to convert an existing proprietary >claim into a personal claim when insolvency intervenes. Had those shares >been transferred pursuant to an express trust, the court was even prepared >to "confront the issue of whether the equitable interests of the settlor of >an inter vivos trust may be adjusted by a pro rata distribution ordered by a >district court, exercising its equitable jurisdiction in an SEC-initiated >receivership proceeding, to remedy fraud perpetrated upon the settlor and >other victims." > >Can the courts in other jurisdictions exercise this sort of "expropriatory" >power to further the goals of insolvency distribution? ____________________________________________________________________ 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, 14 May 2002 13:20:05 +0800 Reply-To: Tjio Hans Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Tjio Hans Subject: Re: Proprietary Restitution and Insolvency MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" There are signs of equitable subordination in the UK: Mac-Jordan Construction v Brookmount Erostin [1992] BCLC 350. Might there be another answer provided by statute? S 544(a)of the Bankruptcy Code, USC Title 11 provides that: (a) The trustee shall have, as of the commencement of the case, and without regard to any knowledge of the trustee or of any creditor, the rights and powers of, or may avoid any transfer of property of the debtor or any obligation incurred by the debtor that is voidable by - (1) a creditor that extends credit to the debtor at the time of the commencement of the case, and that obtains, at such time and with respect to such credit, a judicial lien on all property on which a creditor on a simple contract could have obtained such a judicial lien, whether or not such a creditor exists; (2) a creditor that extends credit to the debtor at the time of the commencement of the case, and obtains, at such time and with respect to such credit, an execution against the debtor that is returned unsatisfied at such time, whether or not such a creditor exists; or (3)a bona fide purchaser of real property, other than fixtures, from the debtor, against whom applicable law permits such transfer to be perfected, that obtains the status of a bona fide purchaser and has perfected such transfer at the time of the commencement of the case, whether or not such a purchaser exists. Hans -----Original Message----- From: Lionel Smith [mailto:lionel.smith@MCGILL.CA] Sent: Tuesday, May 14, 2002 12:06 AM To: ENRICHMENT@LISTS.MCGILL.CA Subject: Re: [RDG:] Proprietary Restitution and Insolvency The US federal courts claim a jurisdiction in bankruptcy which they call "equitable subordination." It is a kind of reverse constructive trust: a jurisdiction to lower somebody's priority in the bankruptcy rather than to raise it, when the court thinks there is some abuse of the principles of insolvency. As to whether this is transplantable to other jurisdictions, there is an excellent and comprehensive recent study of whether it might travel to Canada: Thomas G.W. Telfer, "Transplanting equitable subordination: the new free-wheeling equitable discretion in Canadian insolvency law?" (2001) 36 Can. Bus. L.J. 36-88. Stout traditionalists will of course dismiss this as rubbish. It is the usual dispute as to how quickly the law can be developed by judges vs. what properly belongs to the legislature. L >If there isn't a proprietary interest at the time of receivership >(whichever theory one uses to reach this conclusion), this 2nd Cir. >decision is hardly novel. I suppose the novelty in this decision lies in >the fact that the court was willing to convert an existing proprietary >claim into a personal claim when insolvency intervenes. Had those shares >been transferred pursuant to an express trust, the court was even prepared >to "confront the issue of whether the equitable interests of the settlor of >an inter vivos trust may be adjusted by a pro rata distribution ordered by a >district court, exercising its equitable jurisdiction in an SEC-initiated >receivership proceeding, to remedy fraud perpetrated upon the settlor and >other victims." > >Can the courts in other jurisdictions exercise this sort of "expropriatory" >power to further the goals of insolvency distribution? ____________________________________________________________________ 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, 14 May 2002 11:36:11 -0400 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Re: Proprietary Restitution and Insolvency In-Reply-To: MIME-version: 1.0 Content-type: text/plain; format=flowed; charset=us-ascii But be careful. It does not actually mean what it seems to mean. It puts the trustee in the position of the ideal judgement creditor with all the rights available to such a creditor under state law (including priority over unperfected security interests). 544(1)(3) seems to go well beyond that in respect of land, eliminating equitable interests under even express trusts. See however A. Kull, "Restitution in Bankruptcy: Reclamation and Constructive Trust" (1998) 72 Am Bankruptcy LJ 265, 292-300. By the way some years ago in my own work and in communication with Andrew Kull, I suggested (as in my recent posting) that the inconsistent US cases could be understood as turning on a distinction between a vested equitable interest (as in a payment by mistake) and a power to avoid and revest (as in a Ponzi scheme) and his view (if I recall correctly) was that modern American law has lost this distinction. L At 01:20 PM 14/5/02 +0800, Tjio Hans wrote: >There are signs of equitable subordination in the UK: Mac-Jordan >Construction v Brookmount Erostin [1992] BCLC 350. > >Might there be another answer provided by statute? S 544(a)of the Bankruptcy >Code, USC Title 11 provides that: > >(a) The trustee shall have, as of the commencement of the case, and without >regard to any knowledge of the trustee or of any creditor, the rights and >powers of, or may avoid any transfer of property of the debtor or any >obligation incurred by the debtor that is voidable by - > >(1) a creditor that extends credit to the debtor at the time of the >commencement of the case, and that obtains, at such time and with respect to >such credit, a judicial lien on all property on which a creditor on a simple >contract could have obtained such a judicial lien, whether or not such a >creditor exists; > >(2) a creditor that extends credit to the debtor at the time of the >commencement of the case, and obtains, at such time and with respect to such >credit, an execution against the debtor that is returned unsatisfied at such >time, whether or not such a creditor exists; or > >(3)a bona fide purchaser of real property, other than fixtures, from the >debtor, against whom applicable law permits such transfer to be perfected, >that obtains the status of a bona fide purchaser and has perfected such >transfer at the time of the commencement of the case, whether or not such a >purchaser exists. > >Hans > >-----Original Message----- >From: Lionel Smith [mailto:lionel.smith@MCGILL.CA] >Sent: Tuesday, May 14, 2002 12:06 AM >To: ENRICHMENT@LISTS.MCGILL.CA >Subject: Re: [RDG:] Proprietary Restitution and Insolvency > > >The US federal courts claim a jurisdiction in bankruptcy which they call >"equitable subordination." It is a kind of reverse constructive trust: a >jurisdiction to lower somebody's priority in the bankruptcy rather than to >raise it, when the court thinks there is some abuse of the principles of >insolvency. > >As to whether this is transplantable to other jurisdictions, there is an >excellent and comprehensive recent study of whether it might travel to >Canada: Thomas G.W. Telfer, "Transplanting equitable subordination: the new >free-wheeling equitable discretion in Canadian insolvency law?" (2001) 36 >Can. Bus. L.J. 36-88. > >Stout traditionalists will of course dismiss this as rubbish. It is the >usual dispute as to how quickly the law can be developed by judges vs. what >properly belongs to the legislature. > >L > > > >If there isn't a proprietary interest at the time of receivership > >(whichever theory one uses to reach this conclusion), this 2nd Cir. > >decision is hardly novel. I suppose the novelty in this decision lies in > >the fact that the court was willing to convert an existing proprietary > >claim into a personal claim when insolvency intervenes. Had those shares > >been transferred pursuant to an express trust, the court was even prepared > >to "confront the issue of whether the equitable interests of the settlor of > >an inter vivos trust may be adjusted by a pro rata distribution ordered by >a > >district court, exercising its equitable jurisdiction in an SEC-initiated > >receivership proceeding, to remedy fraud perpetrated upon the settlor and > >other victims." > > > >Can the courts in other jurisdictions exercise this sort of "expropriatory" > >power to further the goals of insolvency distribution? > >____________________________________________________________________ > 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, 16 May 2002 15:47:18 +0100 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Subject: Kuwait Airways Corp v Iraqi Airways Co Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" I am meant to be marking examination papers at the moment. Hence I now find myself writing to draw the group's attention to several points of interest which emerge from Lord Nicholls' speech in the Kuwaiti Airlines case, now available on-line at the HL website. 1/ He considers that where a victim of conversion goes for a restitutionary remedy to recover the converter's gain, the converter should be entitled to raise the defence of change of position, even though he is a 'wrongdoer' in the sense that conversion is a civil wrong. So at para 79 he states: 'Vindication of a plaintiff's proprietary interests requires that, in general, all those who convert his goods should be accountable for benefits they receive. They must make restitution to the extent they are unjustly enriched. The goods are his, and he is entitled to reclaim them and any benefits others have derived from them. Liability in this regard should be strict subject to defences available to restitutionary claims such as change of position: see Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548.' 2/ He thinks that the restitutionary remedy to which a victim of conversion is entitled where the converter has made a gain is restitutionary damages, writing at para 87 that 'the court may order him to pay damages assessed by reference to the value of the benefit he derived from his wrongdoing', and continuing in paras 88-89 to reanalyse Solloway v McLaughlin [1938] AC 247 and BBMB Finance (Hong Kong) Ltd v Eda Holdings Ltd [1990] 1 WLR 409 as cases illustrating this principle. 3/ Apparently recanting from his previous comments in Tang Man Sit v Capacious Investments Ltd, where he considered that the victim of an equitable wrong could only be entitled to compensation and restitution on an either/or basis, he envisages that compensatory and restitutionary damages can both be awarded to a victim of conversion in appropriate cases where there is no overlap between the two. At para 87 he writes: 'the fundamental object of an award of damages for conversion is to award just compensation for loss suffered. Sometimes, when the goods or their equivalent are returned, the owner suffers no financial loss. But the wrongdoer may well have benefited from his temporary use of the owner's goods. It would not be right that he should be able to keep this benefit. The court may order him to pay damages assessed by reference to the value of the benefit he derived from his wrongdoing. I considered this principle in Attorney General v Blake [2001] 1 AC 268, 278-280. In an appropriate case the court may award damages on this 'user principle' in addition to compensation for loss suffered. For instance, if the goods are returned damaged, the court may award damages assessed by reference to the benefit obtained by the wrongdoer as well as the cost of repair.' Charles ________________________________________________________________________ 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 6635,email . ========================================================================= Date: Fri, 17 May 2002 01:43:53 +0000 Reply-To: James Edelman Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: James Edelman Subject: [RDG] Conversion, change of position, Restitutionary damages Mime-Version: 1.0 Content-Type: text/plain; format=flowed I read Lord Nicholls' comments differently from Charles. The full quotation is: Some aspects of this rule have attracted criticism. Vindication of a plaintiff's proprietary interests requires that, in general, all those who convert his goods should be accountable for benefits they receive. They must make restitution to the extent they are unjustly enriched. The goods are his, and he is entitled to reclaim them and any benefits others have derived from them. Liability in this regard should be strict subject to defences available to restitutionary claims such as change of position: see Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548. Additionally, those who act dishonestly should be liable to make good any losses caused by their wrongful conduct. Whether those who act innocently should also be liable to make good the plaintiff's losses is a different matter. A radical re-appraisal of the tort of conversion along these lines was not pursued on these appeals. So I shall say nothing more about it. As I see it, Lord Nicholls was concerned with whether the tort of conversion should be reappraised in line with either the claim for "vindication of a proprietary interest" in "unjust enrichment" or a principle that those that act dishonestly should make good losses. Therefore the radical reappraisal would have the tort become subject to change of position or become dependent upon proof of dishonesty. But he was merely floating both suggestions. His comments on what he refers to as the "user principle" and "damages based on the defendant's gain" are, however, as I see them, references to restitutionary damages. I don't think it is inconsistent with his argument in Tang Man Cit that a plaintiff can get both restitutionary damages and compensatory damages. Indeed there is a long line of authority that does not require election between the two. Tang Man Cit concerned an election between a claim for an account of profits (which I would label "disgorgement damages") and 2 claims to "damages" (which, properly understood, were one head of "restitutionary damages" and one head of "compensatory damages"). Jamie _________________________________________________________________ Chat with friends online, try MSN Messenger: http://messenger.msn.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: Wed, 22 May 2002 23:58:05 +0100 Reply-To: Paul Macmahon Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Paul Macmahon Subject: Vedatech v. Crystal Decisions Content-Type: text/plain Mime-Version: 1.0 Subscribers to the list may find the case of Vedatech v. Crystal Decisions ([2000] EWHC 818 (Ch))to be of interest. This is a decision of Jacobs J., sitting in the Chancery Division of the English High Court, concerning work done under a contract which failed to materialise. The defendants were computer software developers. They wanted to sell one of their products in Japan. The claimants offered to assist them in this enterprise. They began work for the defendants, and were successful. They introduced the product to several Japanese companies, at great expense to themselves and to the great profit of the defendants. While there were some negotiations as to the terms of remuneration, no contract was ever concluded. Jacobs J. held that the defendants were liable to the claimants in unjust enrichment. After quoting Goff and Jones, he said (at paras 68-9): "One is not looking for an implied contract, an implied promise to pay. That is an older view of the principle - really a legal fiction. One is looking for the three italicised elements in the quotation from Goff and Jones, benefit, at the plaintiff's expense, and unjust. "All three elements are undoubtedly present in this case. [The claimants] undertook work for the benefit of [the defendant]. [The defendant] got the benefit of that work and it would be unjust for it to have it for nothing." The most difficult issue in this case is the quantification of the defendant's enrichment. There is to be another trial on that issue, if it comes to that. The judgment is available at: http://www2.bailii.org/~jury/cases/EW/EWHC_Ch_2002_818.html Paul Mac Mahon. ____________________________________________________________________ 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 .