=============================================================== ========== Date: Fri, 3 Oct 2003 07:25:32 +1000 Reply-To: Jonathon P Moore Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jonathon P Moore Subject: Unjust enrichment in the Federal Court of Australia MIME-Version: 1.0 Content-Type: text/plain; charset="UTF-8" Content-Transfer-Encoding: 7bit Finkelstein J's excellent judgment in Spangaro v Corporate Investment Australia Funds Management Ltd [2003] FCA 1025 (26 September 2003) is expressly ground upon the existence of a principled law of unjust enrichment. It includes a discussion on leapfrogging. There is also something in there for those who may be sad to see unjust factors go: see paras [48] and [51]. The compendious judgment is well worth reading. The link is below. To those who do not know him, Finkelstein J is one of the most well respected members of the Federal Court of Australia. Regards Jonathon Moore Melbourne, Australia http://www.austlii.edu.au/au/cases/cth/federal_ct/2003/1025.html ____________________________________________________________________ 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, 6 Oct 2003 10:52:43 +0100 Reply-To: "Hedley, Steve" Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "Hedley, Steve" Subject: Deutsche Morgan Grenfell decision to be reversed by statute MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" RDG members may recall this case, which Tariq Baloch brought to our attention on 23 July. Park J. held that where a claim for overpaid tax can be framed as one for "mistake", as is very often the case, then the claimant can take advantage of Limitation Act 1980 s 32 to postpone the start of the 6-year limitation period. The government have now announced that they will reverse this decision in the next budget - see Inland Revenue News Release of 8 September 2003, accessible from www.inlandrevenue.gov.uk. (They will also appeal the DMG case itself.) The draft clauses:- (1) dis-apply s 32 from any "taxation matter under the care and management of the Commissioners of Inland Revenue"; (2) are retroactive, to the date of the press release itself; (3) apply to "any action for relief from the consequences of a mistake of law, whether expressed to be brought on the ground of mistake or on some other ground (such as unlawful demand or ultra vires act)". Cynics will remember that the broad interpretation of s 32, which is at the root of the Revenue's problem, was considered unsatisfactory even by the court which established it, both majority and minority judges in Kleinwort Benson calling for reforming legislation. Yet it seems that "caution, otherwise known as the Treasury" ((c) Lord Goff) has won the day again. Steve Hedley Faculty of Law, University College, Cork ____________________________________________________________________ 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 Oct 2003 19:40:41 +0100 Reply-To: Arianna Pretto Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Arianna Pretto Subject: new book MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_0016_01C38F66.63BDB8C0" This is a multi-part message in MIME format. ------=_NextPart_000_0016_01C38F66.63BDB8C0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable The new book by Peter Birks, Unjust Enrichment (Clarendon Series, OUP, = Oxford, 2003), of which there was some mention on this mail list some = time ago, has now been published. ap ____________________ Dr Arianna Pretto Fellow and Tutor in Law Brasenose College Oxford OX1 4AJ Telephone 01865 287271 ------=_NextPart_000_0016_01C38F66.63BDB8C0 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable
The new book by Peter Birks, Unjust Enrichment = (Clarendon=20 Series, OUP, Oxford, 2003), of which there was some mention on this mail = list=20 some time ago, has now been published.
 
ap
____________________
Dr Arianna Pretto
Fellow and Tutor in=20 Law
Brasenose College
Oxford OX1 4AJ
Telephone 01865=20 287271
------=_NextPart_000_0016_01C38F66.63BDB8C0-- ____________________________________________________________________ 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 Oct 2003 10:22:33 -0400 Reply-To: jneyers@uwo.ca Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jason Neyers Organization: University of Western Ontario Subject: Just Published! Comments: To: obligations@uwo.ca MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Dear Colleagues, RDG and ODG members may be interested in a new book written by Martin A Hogg, entitled "Obligations" (ISBN 0-9543423-4-8, price GBP 27.50). The book concentrates primarily on the relationships between the various obligations, and discusses such issues as concurrent liability, the availability of unjustified enrichment remedies in cases of failed and void contracts, liability for pre-contractual expenditure, and unjustified sacrifice, amongst others. While it takes Scots law as its primary subject matter, it also includes reference to English, Australian and South African authorities. Happy Reading, -- Jason Neyers Assistant Professor of Law Faculty of Law University of Western Ontario N6A 3K7 (519) 661-2111 x. 88435 ____________________________________________________________________ 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, 15 Oct 2003 10:42:04 -0400 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: criminal and civil disgorgement etc. Mime-Version: 1.0 (Apple Message framework v552) Content-Type: text/plain; charset=ISO-8859-1; format=flowed Content-Transfer-Encoding: quoted-printable Recently published by =C9ditions Yvon Blais is the 2002 Meredith = Memorial=20 Lectures, which were on the subject "Civil and Criminal Aspects of=20 Money-Laundering". The book includes Charles Mitchell's study of the=20 liability of banks which get caught up these transactions, as well as=20 Marc Lemieux's paper on the same subject from a civil law perspective. More details, including ordering info, is available at http://www.editionsyvonblais.qc.ca/Produits/603.asp Lionel=20= ____________________________________________________________________ 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, 23 Oct 2003 11:09:54 +0100 Reply-To: "Hedley, Steve" Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "Hedley, Steve" Subject: Teacakes again MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" There has been another ruling in the great teacakes controversy, which may possibly spell the end of this long-running dispute. VAT was overpaid when Marks and Spencer's chocolate teacakes were misclassified as (VATable) cakes rather than (zero-rated) biscuits. The revenue have resisted repayment on the statutory ground of unjust enrichment (roughly the same thing as passing on). The court of appeal's ruling spells out the extent to which they can do so without infringing anyone's enforceable community rights. Marks & Spencer Plc v Commissioners of Customs & Excise [2003] EWCA Civ 1448 (21 October 2003), on now BAILII and elsewhere. Steve Hedley Faculty of Law, University College, Cork ____________________________________________________________________ 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, 23 Oct 2003 17:50:19 +0100 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Subject: Niru Battery v Milestone Trading [2003] EWCA Civ 1446 Mime-Version: 1.0 Content-Type: multipart/alternative; boundary="=====================_30850140==_.ALT" --=====================_30850140==_.ALT Content-Type: text/plain; charset="us-ascii"; format=flowed Niru has split into two parts: (1) is CAI liable in UE to the claimants, and is SGS liable in tort to the claimants in respect of the same series of transactions? (2) if so, then does a contribution or reimbursement claim lie between them? In answer to (1) Moore-Bick J said yes, to both: [2002] EWHC 1425 (Comm); the CA has now affirmed him in a decision that contains some interesting discussion of the change of position defence by Clarke and Sedley LJJ: http://www.bailii.org/ew/cases/EWCA/Civ/2003/1446.html This means that (2) remains a live issue. The problem is that following Royal Brompton NHS Trust v Hammond no claim could lie under the Civil Liability (Contribution) Act 1978 because a claim in UE is not relevantly a claim in respect of 'damage' as required by the Act. Moore-Bick J got around this problem by holding that in a case where C owes X a liability in UE, and D owes X a liability in tort (or vice versa), C can recover some or all of his payment to X from D by acquiring X's rights against D via (reviving) subrogation. At the same time, though, Moore-Bick J also held that a direct claim for contribution or reimbursement will not lie: [2003] EWHC 1032 (Comm). I think I must be missing something here, because I can't see why he is willing to allow recovery via one route but not via the other. In my view reviving subrogation could only be available for reasons that would compel the conclusion that the reimbursement or contribution claim was available too, and I should also have thought that the availability of the direct route to recovery would then make subrogation redundant in the absence of any secured claim to which C might be subrogated. The result seems like a good one, since it is clearly unsatisfactory that a meritorious contribution claimant should be left without a remedy because of gaps in the courts' jurisdiction under the 1978 Act, but the reasoning seems unduly complex. I expect that part 2 will now follow part 1 to the CA, and so we must hope that they sort it all out for us there. Charles --=====================_30850140==_.ALT Content-Type: text/html; charset="us-ascii" Niru has split into two parts:

(1) is CAI liable in UE to the claimants, and is SGS liable in tort to the claimants in respect of the same series of transactions?

(2) if so, then does a contribution or reimbursement claim lie between them?

In answer to (1) Moore-Bick J said yes, to both: [2002] EWHC 1425 (Comm); the CA has now affirmed him in a decision that contains some interesting discussion of the change of position defence by Clarke and Sedley LJJ:

http://www.bailii.org/ew/cases/EWCA/Civ/2003/1446.html
< br> This means that (2) remains a live issue.  The problem is that following Royal Brompton NHS Trust v Hammond no claim could lie under the Civil Liability (Contribution) Act 1978 because a claim in UE is not relevantly a claim in respect of 'damage' as required by the Act.  Moore-Bick J got around this problem by holding that in a case where C owes X a liability in UE, and D owes X a liability in tort (or vice versa), C can recover some or all of his payment to X from D by acquiring X's rights against D via (reviving) subrogation.  At the same time, though, Moore-Bick J also held that a direct claim for contribution or reimbursement will not lie: [2003] EWHC 1032 (Comm).

I think I must be missing something here, because I can't see why he is willing to allow recovery via one route but not via the other. In my view reviving subrogation could only be available for reasons that would compel the conclusion that the reimbursement or contribution claim was available too, and I should also have thought that the availability of the direct route to recovery would then make subrogation redundant in the absence of any secured claim to which C might be subrogated.

The result seems like a good one, since it is clearly unsatisfactory that a meritorious contribution claimant should be left without a remedy because of gaps in the courts' jurisdiction under the 1978 Act, but the reasoning seems unduly complex.  I expect that part 2 will now follow part 1 to the CA, and so we must hope that they sort it all out for us there.

Charles --=====================_30850140==_.ALT-- ____________________________________________________________________ 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, 24 Oct 2003 11:16:06 +0100 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Subject: Re: Niru Battery v Milestone Trading [2003] EWCA Civ 1446 Comments: To: Eoin O'Dell In-Reply-To: <1066988703.3f98f49fbca22@mymail.tcd.ie> Mime-Version: 1.0 Content-Type: multipart/alternative; boundary="=====================_7263125==_.ALT" --=====================_7263125==_.ALT Content-Type: text/plain; charset="iso-8859-1"; format=flowed Content-Transfer-Encoding: quoted-printable Many thanks for this, Eoin. So far as personal reviving subrogation goes,= =20 I agree with you that there is generally no point in using it, and that=20 whenever it appears in cases it generally turns out to be a tricksy way of= =20 allowing a disguised direct action in UE in circumstances where the courts= =20 don't want to admit that this is what they are really doing - cf the=20 invalid loans cases I discuss in my subrogation book at 154-5. There are=20 some procedural advantages that a claimant might obtain by acquiring a=20 personal claim via reviving subrogation, e.g. a better limitation rule -=20 but the question of principle arises whether claimants should be allowed to= =20 obtain such advantages, a point that is flagged up in Frank's piece on=20 limitation in Lessons of the Swaps Litigation at 371. So far as East Cork Foods is concerned, this looks to me like a case of=20 money paid pursuant to improper application of legal process, which RDG=20 members will recognize as a controversial area since it seems that we=20 cannot agree what the ground of recovery is in such cases. Personally I=20 like the policy of maintaining the integrity of the legal system, but I can= =20 see the force of the other arguments summarized in Ben's excellent [2001]=20 RLR piece, and let's not reopen the debate all over again! Usually these=20 cases have only two parties because the claimant pays the defendant=20 pursuant to a court order, but in East Cork Foods the claimant pays a third= =20 party pursuant to a court order and (I am assuming) the effect of his=20 payment is to discharge the defendant's own liability to the third=20 party. In principle I would say that this extra wrinkle does not stop the= =20 unjust factor being the same in the 3-party case as in the 2-party case=20 (whatever we want to say the unjust factor is). Charles At 10:45 24/10/2003 +0100, you wrote: >Dear Charles, > >I agree with your comments about Niru to the effect that you > > > can't see why he [Moore-Bick J] is > > willing to allow recovery via one route but not via the other. In my= view > > reviving subrogation could only be available for reasons that would= compel > > the conclusion that the reimbursement or contribution claim was= available > > too, and I should also have thought that the availability of the direct > > route to recovery would then make subrogation redundant in the absence= of > > any secured claim to which C might be subrogated. > >Not only do I agree with this, but I might even go further and say that if >personal reviving subrogation and the direct restitutionary action achieve= =20 >the >same end, what is the need for the former anyway? [of course, if MBJ is=20 >right, >and subrogation lies but contribution doesn't, that of itself demonstrates= =20 >the >need; but if you are right (and I think you are) that both should lie,=20 >what is >the need for the former anyway: more generally, if personal subrogation >responds to unjust enrichment, why go through the hoops of the indirect=20 >action >when UE will generate a more straightforward direct action? > > > The result seems like a good one, since it is clearly unsatisfactory= that a > > meritorious contribution claimant should be left without a remedy= because > > of gaps in the courts' jurisdiction under the 1978 Act, but the= reasoning > > seems unduly complex. I expect that part 2 will now follow part 1 to= the > > CA, and so we must hope that they sort it all out for us there. > >This is not a million miles away from an Irish Supreme Court case called= East >Cork Foods v O'Dwyer Steel [1978] IR 103 (SC). The parties had both been >defendants in a tort action, in which they were found to be 20/80% libale >respectively; East Cork Foods appealed to the Supreme Court but the High=20 >Court >refused to put a stay on the order and the plaintiff executed against East= =20 >Cork >Foods; on their appeal, the Supreme Court held that ECF were not liable at= =20 >all >in tort, and that O'DS were 100% liable. Not being liable, of course, meant >that ECF were no longer 'wrongdoers' for the purposes of the contribution >provisions of the Civil Liability Act, 1961, > and=20 >therefore >they were forced to go elsewhere to find a legal reason to recover from= O'DS >the debt they had been compelled to pay to the tort-plaintiff. The Supreme >Court allows recovery, talks important restitution talk (but messes it up= by >referring to construtive trusts once or twice): > >"So far I have been dealing with the matter on the footing that the second >defendant would be entitled, if its claim were resisted, to recover back= the >=A320,000 in an action for money had and received. The basis of such a= claim is >quasi-contract. It is usually dealt with in the books on contract. The >plaintiff succeeds in this type of action, because, it is said, the law=20 >imputes >to the debtor a promise to pay the debt. The historical reason for this=20 >fiction >was to enable the claim to be brought as a form of indebitatus assumpsit.= It >was a pleader's stratagem. In most cases however, it is in the teeth of the >facts to impute to the debtor a promise to pay. So long as the forms of=20 >action >governed the course of litigation, it was necessary for the Courts to go=20 >along >with this transparent fiction. Nowadays, however, when the forms of action= =20 >have >long since been buried, the concept of implied contract is an unreal and >outdated rationale Judges in modern times prefer to look at the reality of= =20 >the >sitaution rather than engage in the pretence that the defendant promised=20 >to pay >the debt. >In the present case, while the =85 defendant (if it were necessary for it= to do >so) could recover the =A320,000 in an action for money had and received, it= =20 >would >be an affront to truth and reality to say that the basis of that cause of >action is an implied promise to repay the money. The real reason why the=20 >Courts >would uphold the claim is because it would be unjust and inequitable to= allow >the =85 defendant to keep the money. To refuse the claim would mean that= the =85 >defendant would be unjustly enriched. The [plaintiff] =85 should never have= =20 >been >required to pay the money." > >That was the good stuff, but then he went and spoiled it all by saying >something stupid like > >"=85 Fair dealing and common sense should have told the first defendant= that it >had a fiduciary responsibility in regard to the money. In the event, it has >been held that the =85 defendant was not entitled to be paid any part of= the =A3 >20,000, so the law must treat that defendant as a constructive trustee of= the >whole sum for the second defendant. >If it were now necessary for the second defendant to sue for the =A3= 20,000, I >would hold that, in lieu of an action for money had and received, the= second >defendant could seek a declaration that the =A3 20,000 is held by the =85= =20 >defendant >as constructive trustees for the [plaintiff]=85, and an order that the= money be >paid over =85 It would be manifestly unconscionable for the first defendant= to >reatin a profit made by it on the =A3 20,000 at the expense of the=20 >[plaintiff] =85". > >I have in at least four articles criticised the Irish judiciary for too=20 >easy a >move from unjust enrichment to constructive trust (see most recently >O'Dell 'Unjust Enrichment and the Remedial Constructive Trust' (2001) 23= DULJ >71) but Henchy J isn't confusing them so much as self-consciously moving= from >law to equity, from money had and received to constructive trust, for the= old >Westdeutsche reason of interest. But the stuff about the nature of the= action >for money had and received is very important, and demonstrates for you the= =20 >kind >of direct action which MBJ rejected. > >Finally, the most recent contribution and indemnity case in the Irish High >Court, nothing very spectacular, but just for interest: Ulster Bank=20 >Commercial >Services Ltd v. Trade Credit Brokers Ltd. & Ors [2003] IEHC 42 (4 July= 2003) > > >All the best from Dublin, > > >Eoin > >-- >EOIN O'DELL BCL(NUI), BCL(Oxon), FTCD, BL, >Fellow, Trinity College Dublin, >Barrister; Registrar, and Director of Research, >School of Law, Trinity College, Dublin 2, Ireland. >+ 353 (0)1 608 1178 (w) 677 0449 (fx); eoin.odell@tcd.ie >(All opinions are personal. No legal responsibility whatsoever is= accepted.) --=====================_7263125==_.ALT Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Many thanks for this, Eoin.  So far as personal reviving subrogation goes, I agree with you that there is generally no point in using it, and that whenever it appears in cases it generally turns out to be a tricksy way of allowing a disguised direct action in UE in circumstances where the courts don't want to admit that this is what they are really doing - cf the invalid loans cases I discuss in my subrogation book at 154-5.  There are some procedural advantages that a claimant might obtain by acquiring a personal claim via reviving subrogation, e.g. a better limitation rule - but the question of principle arises whether claimants should be allowed to obtain such advantages, a point that is flagged up in Frank's piece on limitation in Lessons of the Swaps Litigation at 371.

So far as East Cork Foods is concerned, this looks to me like a case of money paid pursuant to improper application of legal process, which RDG members will recognize as a controversial area since it seems that we cannot agree what the ground of recovery is in such cases.  Personally I like the policy of maintaining the integrity of the legal system, but I can see the force of the other arguments summarized in Ben's excellent [2001] RLR piece, and let's not reopen the debate all over again!  Usually these cases have only two parties because the claimant pays the defendant pursuant to a court order, but in East Cork Foods the claimant pays a third party pursuant to a court order and (I am assuming) the effect of his payment is to discharge the defendant's own liability to the third party.  In principle I would say that this extra wrinkle does not stop the unjust factor being the same in the 3-party case as in the 2-party case (whatever we want to say the unjust factor is).

Charles


At 10:45 24/10/2003 +0100, you wrote:
Dear Charles,

I agree with your comments about Niru to the effect that you

> can't see why he [Moore-Bick J] is
> willing to allow recovery via one route but not via the other. In my view
> reviving subrogation could only be available for reasons that would compel
> the conclusion that the reimbursement or contribution claim was available
> too, and I should also have thought that the availability of the direct
> route to recovery would then make subrogation redundant in the absence of
> any secured claim to which C might be subrogated.

Not only do I agree with this, but I might even go further and say that if
personal reviving subrogation and the direct restitutionary action achieve the
same end, what is the need for the former anyway? [of course, if MBJ is right,
and subrogation lies but contribution doesn't, that of itself demonstrates the
need; but if you are right (and I think you are) that both should lie, what is
the need for the former anyway: more generally, if personal subrogation
responds to unjust enrichment, why go through the hoops of the indirect action
when UE will generate a more straightforward direct action?

> The result seems like a good one, since it is clearly unsatisfactory that a
> meritorious contribution claimant should be left without a remedy because
> of gaps in the courts' jurisdiction under the 1978 Act, but the reasoning
> seems unduly complex.  I expect that part 2 will now follow part 1 to the
> CA, and so we must hope that they sort it all out for us there.

This is not a million miles away from an Irish Supreme Court case called East
Cork Foods v O'Dwyer Steel [1978] IR 103 (SC). The parties had both been
defendants in a tort action, in which they were found to be 20/80% libale
respectively; East Cork Foods appealed to the Supreme Court but the High Court
refused to put a stay on the order and the plaintiff executed against East Cork
Foods; on their appeal, the Supreme Court held that ECF were not liable at all
in tort, and that O'DS were 100% liable. Not being liable, of course, meant
that ECF were no longer 'wrongdoers' for the purposes of the contribution
provisions of the Civil Liability Act, 1961,
<http://www.bailii.org/ie/legis/num_act/cla1961161/index.htm= l#s1> and therefore
they were forced to go elsewhere to find a legal reason to recover from O'DS
the debt they had been compelled to pay to the tort-plaintiff. The Supreme
Court allows recovery, talks important restitution talk (but messes it up by
referring to construtive trusts once or twice):

"So far I have been dealing with the matter on the footing that the second
defendant would be entitled, if its claim were resisted, to recover back the
=A320,000 in an action for money had and received. The basis of such a claim is
quasi-contract. It is usually dealt with in the books on contract. The
plaintiff succeeds in this type of action, because, it is said, the law imputes
to the debtor a promise to pay the debt. The historical reason for this fiction
was to enable the claim to be brought as a form of indebitatus assumpsit. It
was a pleader's stratagem. In most cases however, it is in the teeth of the
facts to impute to the debtor a promise to pay. So long as the forms of action
governed the course of litigation, it was necessary for the Courts to go along
with this transparent fiction. Nowadays, however, when the forms of action have
long since been buried, the concept of implied contract is an unreal and
outdated rationale Judges in modern times prefer to look at the reality of the
sitaution rather than engage in the pretence that the defendant promised to pay
the debt.
In the present case, while the =85 defendant (if it were necessary for it to do
so) could recover the =A320,000 in an action for money had and received, it would
be an affront to truth and reality to say that the basis of that cause of
action is an implied promise to repay the money. The real reason why the Courts
would uphold the claim is because it would be unjust and inequitable to allow
the =85 defendant to keep the money. To refuse the claim would mean that the =85
defendant would be unjustly enriched. The [plaintiff] =85 should never have been
required to pay the money."

That was the good stuff, but then he went and spoiled it all by saying
something stupid like

"=85 Fair dealing and common sense should have told the first defendant that it
had a fiduciary responsibility in regard to the money. In the event, it has
been held that the =85 defendant was not entitled to be paid any part of the =A3
20,000, so the law must treat that defendant as a constructive trustee of the
whole sum for the second defendant.
If it were now necessary for the second defendant to sue for the =A3 20,000, I
would hold that, in lieu of an action for money had and received, the second
defendant could seek a declaration that the =A3 20,000 is held by the =85 defendant
as constructive trustees for the [plaintiff]=85, and an order that the money be
paid over =85 It would be manifestly unconscionable for the first defendant to
reatin a profit made by it on the =A3 20,000 at the expense of the [plaintiff] =85".

I have in at least four articles criticised the Irish judiciary for too easy a
move from unjust enrichment to constructive trust (see most recently
O'Dell 'Unjust Enrichment and the Remedial Constructive Trust' (2001) 23 DULJ
71) but Henchy J isn't confusing them so much as self-consciously moving from
law to equity, from money had and received to constructive trust, for the old
Westdeutsche reason of interest. But the stuff about the nature of the action
for money had and received is very important, and demonstrates for you the kind
of direct action which MBJ rejected.

Finally, the most recent contribution and indemnity case in the Irish High
Court, nothing very spectacular, but just for interest: Ulster Bank Commercial
Services Ltd v. Trade Credit Brokers Ltd. & Ors [2003] IEHC 42 (4 July 2003)
<http://www.bailii.org/ie/cases/IEHC/2003/42.html>=

All the best from Dublin,


Eoin

--
EOIN O'DELL  BCL(NUI), BCL(Oxon), FTCD, BL,
Fellow, Trinity College Dublin,
Barrister; Registrar, and Director of Research,
School of Law, Trinity College, Dublin 2, Ireland.
+ 353 (0)1 608 1178 (w) 677 0449 (fx); eoin.odell@tcd.ie
(All opinions are personal. No legal responsibility whatsoever is accepted.)
--=====================_7263125==_.ALT-- ____________________________________________________________________ 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 .