========================================================================= Date: Fri, 9 Jan 2004 10:59:43 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Glover on Equity, Restitution & Fraud Comments: To: obligations@uwo.ca Mime-Version: 1.0 (Apple Message framework v553) Content-Type: text/plain; charset=US-ASCII; format=flowed Content-Transfer-Encoding: 7bit To RDG and ODG, with apologies for duplication List members may be interested in the just-published "Equity, Restitution & Fraud", by RDG member John Glover, published by Butterworths Australia (sorry I can't bring myself to call them LexisNexis Butterworths). Happy New Year to all from balmy Montreal (-25 today), Lionel ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, email . ========================================================================= Date: Thu, 15 Jan 2004 17:18:15 +0000 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Mime-Version: 1.0 Content-Type: multipart/alternative; boundary="=====================_27323687==_.ALT" --=====================_27323687==_.ALT Content-Type: text/plain; charset="us-ascii"; format=flowed Two first instance decisions from 2003 in which important matters were decided with no discussion whatsoever by the judges concerned: 1/ In Williams v Williams [2003] All ER (D) 403 (Feb), at [54], Kevin Garnett QC held that statements in Goff & Jones that there is a general defence of change of position available to good faith defendants to claims in UE 'have nothing to do with the case of a gift which is void for want of capacity'. Is it not at least arguable that a defendant who changes his position after receiving a gift in good faith from a mentally incapable claimant should have a defence? 2/ In Law Society v Haider [2003] EWHC 2486 (Ch), at [40]-[41], David J Richards QC held that the Law Society, acting on behalf of clients whose funds had been misappropriated from a solicitor's client account and used to redeem a mortgage on real property, could trace into the property and then onto into the money realized when the property was sold and then on into new property bought with the money, to which it could then assert a proprietary claim. The first of these steps looks like backwards tracing to me, which I take to have been accepted into English law by the CA in Foskett, but doubts remain - e.g. what is the status of Scott V-C's view in Foskett that the beneficiaries would have to prove that the trustee meant to use their money to repay the bank at the time when his account became overdrawn? A Happy New Year to all RDG members! Charles Dr Charles Mitchell Reader in Law Director of Postgraduate Taught Programmes School of Law King's College London Strand London WC2R 2LS tel: 020 7848 2290 fax: 020 7848 2465 --=====================_27323687==_.ALT Content-Type: text/html; charset="us-ascii" Two first instance decisions from 2003 in which important matters were decided with no discussion whatsoever by the judges concerned:

1/ In Williams v Williams [2003] All ER (D) 403 (Feb), at [54], Kevin Garnett QC held that statements in Goff & Jones that there is a general defence of change of position available to good faith defendants to claims in UE 'have nothing to do with the case of a gift which is void for want of capacity'.   Is it not at least arguable that a defendant who changes his position after receiving a gift in good faith from a mentally incapable claimant should have a defence?

2/ In Law Society v Haider [2003] EWHC 2486 (Ch), at [40]-[41], David J Richards QC held that the Law Society, acting on behalf of clients whose funds had been misappropriated from a solicitor's client account and used to redeem a mortgage on real property, could trace into the property and then onto into the money realized when the property was sold and then on into new property bought with the money, to which it could then assert a proprietary claim.  The first of these steps looks like backwards tracing to me, which I take to have been accepted into English law by the CA in Foskett, but doubts remain - e.g. what is the status of Scott V-C's view in Foskett that the beneficiaries would have to prove that the trustee meant to use their money to repay the bank at the time when his account became overdrawn?

A Happy New Year to all RDG members!

Charles



Dr Charles Mitchell
Reader in Law
Director of Postgraduate Taught Programmes
School of Law
King's College London
Strand
London WC2R 2LS

tel: 020 7848 2290
fax: 020 7848 2465 --=====================_27323687==_.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: Thu, 15 Jan 2004 13:35:46 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: 2 cases In-Reply-To: <5.1.0.14.2.20040115163549.01c04e90@pop1.kcl.ac.uk> Mime-Version: 1.0 (Apple Message framework v609) Content-Type: text/plain; charset=US-ASCII; format=flowed Content-Transfer-Encoding: 7bit Backwards tracing is a jolly good thing so far as I am concerned. On Williams, if the gift was truly void, I think the judge's holding was pretty uncontroversial, and while it is arguable that c of p should be available, I think it would have to be a long argument. That is, the property in the thing not having passed, there is probably a conversion, and (in Canada anyway) a claim in detinue if the thing is still held by the defendant. No one has ever accepted change of position to either of those, to my knowledge, although for some defendants at least, detinue builds it in, because it is a defence that you no longer have the thing, so long as your no longer having it is excusable in some way. Now if the gift was of a chose in action, eg money by bank transfer, well that is more difficult. Although even here I don't think the only ground for a claim would be one based on a defective transfer. One of the many faces of the action for money had and received appears to be a detinue-like assertion that the defendant continues to hold the proceeds of money received from the plaintiff, and, like detinue, the basis of the claim tends to build in a kind of change of position (although there is a difference as to burden of proof). Lionel ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, email . ========================================================================= Date: Thu, 15 Jan 2004 14:15:39 -0500 Reply-To: jneyers@uwo.ca Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jason Neyers Organization: University of Western Ontario Subject: Re: 2 cases Comments: To: Lionel Smith MIME-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: quoted-printable Lionel Smith wrote: > No one has ever accepted change of > position to either of those, to my knowledge, although for some > defendants at least, detinue builds it in, because it is a defence that= > you no longer have the thing, so long as your no longer having it is > excusable in some way. I think "no one" is too strong since I remember David Stevens making the argument that COP should apply in D. Stevens, =93Restitution, Property, A= nd the Cause of Action in Unjust Enrichment: Getting By with Fewer Things=94= (1989) 39 U.T.L.J. 258, (1989) 39 U.T.L.J. 325, an argument that I found somewhat persuasive. Cheers, -- 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: Thu, 29 Jan 2004 09:32:29 -0000 Reply-To: "Hedley, Steve" Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "Hedley, Steve" Subject: New case: ultra vires, mistake, illegality, change of position .. . MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" A nice little problem in the Court of Appeal, especially for those of us who may be thinking about exam questions around this time. Unfortunately it is just at the pleading stage, so no firm ruling, though there are various observations on the strength of some of the arguments involved. A ophthalmologist administered numerous sight tests, for which he received payment from the claimant health trust. It later emerged that he was not properly qualified, a qualification certificate having been issued in error. This made it illegal for him to charge for his services (though the precise nature of the illegality isn't awfully clear). Also, there was suspicion that some of his claims for payment may have been fraudulent. He was prosecuted for fraud; critical defects then appeared in the prosecution's case; before a re-formulated prosecution could be brought, he had a heart attack and died. The health trust are now suing for repayment of all monies paid, alleging mistake, illegality and constructive trust; the estate admits that the money must be repaid where no test was actually carried out, but otherwise defends. Estate of Anandh v. Barnet Primary Health Care Trust [2004] EWCA Civ 5 (27 January 2004). 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, 29 Jan 2004 10:09:15 +0000 Reply-To: Andrew Tettenborn Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Andrew Tettenborn Subject: Fwd: [RDG:] New case: ultra vires, mistake, illegality, change of position .. . Mime-Version: 1.0 Content-Type: multipart/alternative; boundary="=====================_3717968==.ALT" --=====================_3717968==.ALT Content-Type: text/plain; charset="us-ascii"; format=flowed This case shows the dangers of being too trigger-happy in allowing recovery for piddling mistakes. A couple of further thoughts: 1. A similar problem arose earlier in the CA. I employ solicitors to handle a lawsuit: they cock it up. I can get damages for the loss of the lawsuit, but can I get back the fees I paid? On normal contractual principles, no. If a contractor does the work, but does it badly, he has a right to be paid (and to keep the payment) subject to a counterclaim for breach of contract: see Hoenig v Isaacs [1952] 1 T.L.R. 1360. But I then discover that my solicitors actually got an unqualified clerk to do the work (but his job was no worse than one of their proper lawyers would have done). Does this change matters? Yes, apparently. Whoopee! See Adrian Alan v Fuglers [2003] PNLR 305. 2. Has the redoubtable Mr Anandh changed his position by doing the work he shouldn't have done? Best Andrew T >X-Sieve: CMU Sieve 2.2 >X-Mailer: Internet Mail Service (5.5.2657.72) >X-MDdb: 110/010/1780/Sw/Fs/SA/0/1.94:040128.143150 >X-SA-Skip: yes >X-Scanned-By: MIMEDefang 2.36 >Date: Thu, 29 Jan 2004 09:32:29 -0000 >Reply-To: "Hedley, Steve" >Sender: Enrichment - Restitution & Unjust Enrichment Legal >Issues >From: "Hedley, Steve" >Subject: [RDG:] New case: ultra vires, mistake, illegality, > change of position .. . >To: ENRICHMENT@LISTS.MCGILL.CA > >A nice little problem in the Court of Appeal, especially for those of us who >may be thinking about exam questions around this time. Unfortunately it is >just at the pleading stage, so no firm ruling, though there are various >observations on the strength of some of the arguments involved. > >A ophthalmologist administered numerous sight tests, for which he received >payment from the claimant health trust. It later emerged that he was not >properly qualified, a qualification certificate having been issued in error. >This made it illegal for him to charge for his services (though the precise >nature of the illegality isn't awfully clear). Also, there was suspicion >that some of his claims for payment may have been fraudulent. He was >prosecuted for fraud; critical defects then appeared in the prosecution's >case; before a re-formulated prosecution could be brought, he had a heart >attack and died. The health trust are now suing for repayment of all monies >paid, alleging mistake, illegality and constructive trust; the estate admits >that the money must be repaid where no test was actually carried out, but >otherwise defends. > >Estate of Anandh v. Barnet Primary Health Care Trust [2004] EWCA Civ 5 (27 >January 2004). > > >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 > . Andrew Tettenborn MA LLB Bracton Professor of Law Tel: 01392-263189 / +44-392-263189 (international) Cellphone: 07729-266200 / +44-7729-266200 (international) Fax: 01392-263196 / +44-392-263196 (international) Snailmail: School of Law, University of Exeter, Amory Building, Rennes Drive, Exeter EX4 4RJ England [School homepage: http://www.ex.ac.uk/law/ ] [My homepage: http://www.ex.ac.uk/law/staff/tettenborn/index.html]. --=====================_3717968==.ALT Content-Type: text/html; charset="us-ascii"
This case shows the dangers of being too trigger-happy in allowing recovery for piddling mistakes. A couple of further thoughts:

1. A similar problem arose earlier in the CA. I employ solicitors to handle a lawsuit: they cock it up. I can get damages for the loss of the lawsuit, but can I get back the fees I paid? On normal contractual principles, no. If a contractor does the work, but does it badly, he has a right to be paid (and to keep the payment) subject to a counterclaim for breach of contract: see Hoenig v Isaacs [1952] 1 T.L.R. 1360. But I then discover that my solicitors actually got an unqualified clerk to do the work (but his job was no worse than one of their proper lawyers would have done). Does this change matters? Yes, apparently. Whoopee! See Adrian Alan v Fuglers [2003] PNLR 305.

2. Has the redoubtable Mr Anandh changed his position by doing the work he shouldn't have done?

Best

Andrew T




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Date:         Thu, 29 Jan 2004 09:32:29 -0000
Reply-To: "Hedley, Steve"
Sender: Enrichment -  Restitution & Unjust Enrichment Legal Issues             
From: "Hedley, Steve"
Subject:      [RDG:] New case: ultra vires, mistake, illegality,
              change of position .. .
To: ENRICHMENT@LISTS.MCGILL.CA

A nice little problem in the Court of Appeal, especially for those of us who
may be thinking about exam questions around this time. Unfortunately it is
just at the pleading stage, so no firm ruling, though there are various
observations on the strength of some of the arguments involved.

A ophthalmologist administered numerous sight tests, for which he received
payment from the claimant health trust. It later emerged that he was not
properly qualified, a qualification certificate having been issued in error.
This made it illegal for him to charge for his services (though the precise
nature of the illegality isn't awfully clear). Also, there was suspicion
that some of his claims for payment may have been fraudulent. He was
prosecuted for fraud; critical defects then appeared in the prosecution's
case; before a re-formulated prosecution could be brought, he had a heart
attack and died. The health trust are now suing for repayment of all monies
paid, alleging mistake, illegality and constructive trust; the estate admits
that the money must be repaid where no test was actually carried out, but
otherwise defends.

Estate of Anandh v. Barnet Primary Health Care Trust [2004] EWCA Civ 5 (27
January 2004).


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
 .

Andrew Tettenborn MA LLB
Bracton Professor of Law


Tel:                 01392-263189   /   +44-392-263189 (international)
Cellphone:             07729-266200   /   +44-7729-266200 (international)
Fax:                01392-263196    /   +44-392-263196 (international)

Snailmail:    School of Law,
                   University of Exeter,
                   Amory Building,
                   Rennes Drive,
                   Exeter EX4 4RJ
                   England

                   [School homepage: http://www.ex.ac.uk/law/ ]
                   [My homepage:
                     http://www.ex.ac.uk/law/staff/tettenborn/index.html]. --=====================_3717968==.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: Thu, 29 Jan 2004 13:51:07 -0000 Reply-To: James Watthey Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: James Watthey Subject: Recall: Barnet v Anandh MIME-Version: 1.0 Content-Type: text/plain James Watthey would like to recall the message, "Barnet v Anandh". ____________________________________________________________________ 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, 29 Jan 2004 14:20:25 -0000 Reply-To: James Watthey Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: James Watthey Subject: Barnet v Anandh MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----_=_NextPart_001_01C3E673.0992D0B0" 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. ------_=_NextPart_001_01C3E673.0992D0B0 Content-Type: text/plain; charset="iso-8859-1" Apologies for that annoying "recall" email. Lionel has now explained to me what I did wrong, so hopefully this will now get through... Commercially speaking, this is not really a "piddling mistake", is it? Taking Andrew's points in turn: 1. In both this case and in the unqualified lawyer example, the customer is not only getting an inferior service giving rise to a set-off (more important in practice than a mere counterclaim: see e.g CPR Pt 24.2 and the notes thereto) but something fundamentally different to that bargained for. Andrew's example as he explains it would also be a breach of the solicitor's conduct rules and, by the sound of it, could involve the firm rendering fraudulent bills; a claim in UE would therefore be the least of the responsible Partner's worries! Can anyone think of a logical reason why the client, who engaged, bargained for and was charged for the services of a solicitor but given the services of a tea-boy, should not get his money back subject to counter-restitution? 2. How could the Defendant possibly claim to have changed his position in good faith? James James Watthey Tel 020 7691 3700 Fax 020 7691 3701 Commercial team website www.hardwickecivil.co.uk/cc My website www.hardwickecivil.co.uk/members/jww.htm Hardwicke Building New Square Lincoln's Inn London WC2A 3SB ------_=_NextPart_001_01C3E673.0992D0B0 Content-Type: text/html; charset="iso-8859-1"

Apologies for that annoying "recall" email.  Lionel has now explained to me what I did wrong, so hopefully this will now get through...
 
Commercially speaking, this is not really a "piddling mistake", is it? Taking Andrew's points in turn:
 
1. In both this case and in the unqualified lawyer example, the customer is not only getting an inferior service giving rise to a set-off (more important in practice than a mere counterclaim: see e.g CPR Pt 24.2 and the notes thereto) but something fundamentally different to that bargained for.  
 
Andrew's example as he explains it would also be a breach of the solicitor's conduct rules and, by the sound of it, could involve the firm rendering fraudulent bills; a claim in UE would therefore be the least of the responsible Partner's worries! Can anyone think of a logical reason why the client, who engaged, bargained for and was charged for the services of a solicitor but given the services of a tea-boy, should not get his money back subject to counter-restitution?
 
2. How could the Defendant possibly claim to have changed his position in good faith?
 
James
 

James Watthey


Tel  020 7691 3700
Fax 020 7691 3701

Commercial team website www.hardwickecivil.co.uk/cc

My website  www.hardwickecivil.co.uk/members/jww.htm

Hardwicke Building
New Square
Lincoln's Inn
London WC2A 3SB

 
------_=_NextPart_001_01C3E673.0992D0B0-- ____________________________________________________________________ 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, 29 Jan 2004 17:30:50 -0000 Reply-To: "Hedley, Steve" Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "Hedley, Steve" Subject: Barnet v Anandh MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----_=_NextPart_001_01C3E68D.A3629530" 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. ------_=_NextPart_001_01C3E68D.A3629530 Content-Type: text/plain; charset="iso-8859-1" James Watthey wrote: >Andrew's example as he explains it would also be >a breach of the solicitor's conduct rules and, by >the sound of it, could involve the firm rendering >fraudulent bills; a claim in UE would therefore be >the least of the responsible Partner's worries! Can >anyone think of a logical reason why the client, >who engaged, bargained for and was charged for >the services of a solicitor but given the services >of a tea-boy, should not get his money back >subject to counter-restitution? One logical reason might be if the client also wanted damages for breach of contract, as did the client in Adrian Alan v Fuglers. Surely there is a difficulty (which I can't see answered anywhere in the judgment) in allowing the client to recover the money he himself paid, while holding the solicitors to it by an action for damages. Steve Hedley Faculty of Law, University College, Cork ------_=_NextPart_001_01C3E68D.A3629530 Content-Type: text/html; charset="iso-8859-1"
James Watthey wrote:
 
>Andrew's example as he explains it would also be
>a breach of the solicitor's conduct rules and, by
>the sound of it, could involve the firm rendering
>fraudulent bills; a claim in UE would therefore be
>the least of the responsible Partner's worries! Can
>anyone think of a logical reason why the client,
>who engaged, bargained for and was charged for
>the services of a solicitor but given the services
>of a tea-boy, should not get his money back
>subject to counter-restitution?
 
One logical reason might be if the client also wanted damages for breach of contract, as did the client in Adrian Alan v Fuglers.  Surely there is a difficulty (which I can't see answered anywhere in the judgment) in allowing the client to recover the money he himself paid, while holding the solicitors to it by an action for damages.
 

Steve Hedley
Faculty of Law, University College, Cork

 
 
------_=_NextPart_001_01C3E68D.A3629530-- ____________________________________________________________________ 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, 30 Jan 2004 09:46:29 +0000 Reply-To: Andrew Tettenborn Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Andrew Tettenborn Subject: Fwd: [RDG:] Barnet v Anandh Mime-Version: 1.0 Content-Type: multipart/alternative; boundary="=====================_1538281==.ALT" --=====================_1538281==.ALT Content-Type: text/plain; charset="iso-8859-1"; format=flowed Content-Transfer-Encoding: quoted-printable I'm not so sure about James's points here. First, I'd stick by my view that the mistake is comparatively unimportant.= =20 Forget for a moment the allegation of billing for work not done, which is=20 easy. As regards the rest, there was no suggestion that the work done by=20 Anandh was any worse for the fact that he lacked registration: the=20 authority got the work they paid for. Surely the mistake as to his=20 qualifications is a rather collateral affair. As to paying for a lawyer and getting the tea-boy, doesn't the morality of= =20 the situation depend on whether the client got the standard of service he=20 paid for? With the tea-boy the chances are =A310 to 1p that he wouldn't: in= =20 Fuglers and Anandh the argument seems to have proceeded on the basis that=20 there wasn't much significant difference between the service paid for and=20 the service received. No doubt the Law Society would be much exercised about solicitors doing=20 work through clerks: obviously James is right here. But I'm not sure that=20 the fact that the law firm has been naughty should necessarily spill over=20 into the law of restitution. Is it so clear that change of position shouldn't apply here? If Anandh=20 thought he was entitled to be paid despite a technical lack of=20 registration, isn't he arguably in good faith? Why should a sin against the= =20 medical authorities necessarily defeat the defence? Especially since we can= =20 reach the same result through requiring counter-restitution. If the=20 authority can get back what it paid Anandh, why can't Anandh, who=20 presumptively didn't perform any worse than a registered practitioner,=20 insist on being paid for the work he did? Circuity of action. Best Andrew >X-Sieve: CMU Sieve 2.2 >X-Mailer: Internet Mail Service (5.5.2650.21) >Date: Thu, 29 Jan 2004 14:20:25 -0000 >Reply-To: James Watthey >Sender: Enrichment - Restitution & Unjust Enrichment Legal=20 >Issues >From: James Watthey >Subject: [RDG:] Barnet v Anandh >To: ENRICHMENT@LISTS.MCGILL.CA > >Apologies for that annoying "recall" email. Lionel has now explained to=20 >me what I did wrong, so hopefully this will now get through... > >Commercially speaking, this is not really a "piddling mistake", is it?=20 >Taking Andrew's points in turn: > >1. In both this case and in the unqualified lawyer example, the customer=20 >is not only getting an inferior service giving rise to a set-off (more=20 >important in practice than a mere counterclaim: see e.g CPR Pt 24.2 and=20 >the notes thereto) but something fundamentally different to that bargained= =20 >for. > >Andrew's example as he explains it would also be a breach of the=20 >solicitor's conduct rules and, by the sound of it, could involve the firm= =20 >rendering fraudulent bills; a claim in UE would therefore be the least of= =20 >the responsible Partner's worries! Can anyone think of a logical reason=20 >why the client, who engaged, bargained for and was charged for the=20 >services of a solicitor but given the services of a tea-boy, should not=20 >get his money back subject to counter-restitution? > >2. How could the Defendant possibly claim to have changed his position in= =20 >good faith? > >James > > >James Watthey > > >Tel 020 7691 3700 >Fax 020 7691 3701 > >Commercial team website=20 >www.hardwickecivil.co.uk/cc > >My=20 >website=20 >www.hardwickecivil.co.uk/m= embers/jww.htm > >Hardwicke Building >New Square >Lincoln's Inn >London WC2A 3SB > Andrew Tettenborn MA LLB Bracton Professor of Law Tel: 01392-263189 / +44-392-263189 (international) Cellphone: 07729-266200 / +44-7729-266200 (international) Fax: 01392-263196 / +44-392-263196 (international) Snailmail: School of Law, University of Exeter, Amory Building, Rennes Drive, Exeter EX4 4RJ England [School homepage: http://www.ex.ac.uk/law/ ] [My homepage: http://www.ex.ac.uk/law/staff/tettenborn/index.html].= =20 --=====================_1538281==.ALT Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable
I'm not so sure about James's points here.

First, I'd stick by my view that the mistake is comparatively unimportant. Forget for a moment the allegation of billing for work not done, which is easy. As regards the rest, there was no suggestion that the work done by Anandh was any worse for the fact that he lacked registration: the authority got the work they paid for. Surely the mistake as to his qualifications is a rather collateral affair.

As to paying for a lawyer and getting the tea-boy, doesn't the morality of the situation depend on whether the client got the standard of service he paid for? With the tea-boy the chances are =A310 to 1p that he wouldn't: in Fuglers and Anandh the argument seems to have proceeded on the basis that there wasn't much significant difference between the service paid for and the service received.

No doubt the Law Society would be much exercised about solicitors doing work through clerks: obviously James is right here. But I'm not sure that the fact that the law firm has been naughty should necessarily spill over into the law of restitution.

Is it so clear that change of position shouldn't apply here? If Anandh thought he was entitled to be paid despite a technical lack of registration, isn't he arguably in good faith? Why should a sin against the medical authorities necessarily defeat the defence? Especially since we can reach the same result through requiring counter-restitution. If the authority can get back what it paid Anandh, why can't Anandh, who presumptively didn't perform any worse than a registered practitioner, insist on being paid for the work he did? Circuity of action.


Best

Andrew



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Date:         Thu, 29 Jan 2004 14:20:25 -0000
Reply-To: James Watthey
Sender: Enrichment -  Restitution & Unjust Enrichment Legal Issues           &nbs= p; 
From: James Watthey
Subject:      [RDG:] Barnet v Anandh
To: ENRICHMENT@LISTS.MCGILL.CA

Apologies for that annoying "recall" email.  Lionel has now explained to me what I did wrong, so hopefully this will now get through...
 
Commercially speaking, this is not really a "piddling mistake", is it? Taking Andrew's points in turn:
 
1. In both this case and in the unqualified lawyer example, the customer is not only getting an inferior service giving rise to a set-off (more important in practice than a mere counterclaim: see e.g CPR Pt 24.2 and the notes thereto) but something fundamentally different to that bargained for. 
 
Andrew's example as he explains it woul= d also be a breach of the solicitor's conduct rules and, by the sound of it, could involve the firm rendering fraudulent bills; a claim in UE would therefore be the least of the responsible Partner's worries! Can anyone think of a logical reason why the client, who engaged, bargained for and was charged for the services of a solicitor but given the services of a tea-boy, should not get his money back subject to counter-restitution?
 
2. How could the Defendant possibly claim to have changed his position in good faith?
 
James
 

James Watthey


Tel  020 7691 3700
Fax 020 7691 3701

Commercial team websi= te www.hardwickecivil.co.uk/cc

My website  www.hardwickecivil.co.uk/members/jww.htm

Hardwicke Building
New Square
Lincoln's Inn
London WC2A 3SB
 

Andrew Tettenborn MA LLB
Bracton Professor of Law


Tel:            =      01392-263189   /   +44-392-263189 (international)
Cellphone:        &nb= sp;    07729-266200   /   +44-7729-266200 (international)
Fax:            =     01392-263196    /   +44-392-263196 (international)

Snailmail:    School of Law,
            &nbs= p;      University of Exeter,
            &nbs= p;      Amory Building,
            &nbs= p;      Rennes Drive,
            &nbs= p;      Exeter EX4 4RJ
            &nbs= p;      England

            &nbs= p;      [School homepage: http://www.ex.ac.uk/law/ ]
            &nbs= p;      [My homepage:
            &nbs= p;        http://www.ex.ac.uk/law/staff/tettenborn/index.html]= . --=====================_1538281==.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, 30 Jan 2004 10:39:29 -0000 Reply-To: James Watthey Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: James Watthey Subject: Barnet v Anandh MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----_=_NextPart_001_01C3E71D.56B95440" 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. ------_=_NextPart_001_01C3E71D.56B95440 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable In principle, of course he can, but only to the value that the Court, = after hearing evidence on the subject, considers his work to have been worth = in all the circumstances. That might be the same as a qualified and = registered practitioner, but it might not be. The law should not (and does not) = leave a Claimant without a remedy where it is not.=20 =20 Restitution vs counter-restitution has a necessarily circuitous = appearance; that is the unfortunate but inevitable feature of this r=E9gime but it = does mean that a full account of value is taken and that the "right" result = has some chance of being reached. There is in fact no circuity of action; = it can all be dealt with in the same proceedings. It is a = well-established practice and these days even District Judges are willing to hear = extensive argument on it (providing it is properly pleaded and the weather is too = bad for golf). =20 =20 James =20 -- Andrew Tettenborn wrote:=20 =20 " If the authority can get back what it paid Anandh, why can't Anandh, = who presumptively didn't perform any worse than a registered practitioner, insist on being paid for the work he did? Circuity of action."=20 ------_=_NextPart_001_01C3E71D.56B95440 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable

In = principle, of=20 course he can, but only to the value that the Court, after hearing = evidence on=20 the subject, considers his work to have been worth in all the=20 circumstances. That might be the same as a qualified and=20 registered practitioner, but it might not be. The = law should=20 not (and does not) leave a Claimant without a remedy where it is not.=20
 
Restitution vs=20 counter-restitution has a necessarily circuitous appearance; that is = the=20 unfortunate but inevitable feature of this r=E9gime but it does mean = that a full=20 account of value is taken and that the "right" result has some = chance of=20 being reached.  There is in fact no circuity of action; it = can all be=20 dealt with in the same proceedings.  It is a well-established = practice=20 and these days even District Judges are willing to hear extensive = argument=20 on it (providing it is properly pleaded and the weather is too bad for=20 golf). 
 
James
 
--
Andrew Tettenborn=20 wrote: 
 
 " If the authority can get back = what it paid=20 Anandh, why can't Anandh, who presumptively didn't perform any worse = than a=20 registered practitioner, insist on being paid for the work he did? = Circuity of=20 action." 




------_=_NextPart_001_01C3E71D.56B95440-- ____________________________________________________________________ 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, 30 Jan 2004 09:35:59 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues Comments: Resent-From: Lionel Smith Comments: Originally-From: Lionel Smith From: Lionel Smith Subject: Barnet v Anandh (Modified by Lionel Smith) Mime-Version: 1.0 (Apple Message framework v612) Content-Type: text/plain; charset=US-ASCII; format=flowed Content-Transfer-Encoding: 7bit > > Without having read this case, I offer the following "top of the head" > thoughts: > > 1. If Anandh knew that he was not entitled to receive the sums from > his > clients because they were tainted by illegality then, in my view, he > should > not be entitled to rely on the change of position defence. > > 2. Counter-restitution (i.e. the assertion that he conferred a > valuable > benefit on the clients which ought to be returned) may be a different > matter > (cf. Guinness v. Saunders), but ought not to be available here (1) on > the > ground of illegality, and (2) because the clients could argue that they > (subjectively) had not been enriched because they would not have been > prepared to pay anything for treatment by an unlicensed > ophthalmologist. = > > Regards > Andrew ____________________________________________________________________ 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 .