======================================================================= == Date: Mon, 2 Feb 2004 08:21:39 +1100 Reply-To: Jonathon Moore Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jonathon Moore Subject: Barnet v Anandh MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_0018_01C3E965.94FD41E0" This is a multi-part message in MIME format. ------=_NextPart_000_0018_01C3E965.94FD41E0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable James' first email asked rhetorically "How could the Defendant possibly = claim to have changed his position in good faith?" Following Andrew's = response that change of position should indeed be available in the = absence of dishonesty, James said "In principle, of course he can", = noting however that the quantum of the change may or may not equal the = price charge by the defendant for the service. James' second email, but not the first, seems to me to be clearly right. = Change of position in good faith is more than possible. A very similar situation is currently working its way through the courts = in Victoria. An Act requires landlords to give tenants a "disclosure = statement" containing certain details about the lease at the = commencement of the term. If that is not done, the Act says that: (a) = the tenant may withhold rent until the disclosure statement is provided; = and (b) the tenant is "not liable" for rent for the period for which = there was no disclosure statement. Several cases have occurred recently where both the landlord and the = tenant realised only years down the track that a disclosure statement = had not been provided when the lease commenced. The tenant then sought = to recover all the rent he had paid in those years. As the Act said = nothing about that situation, the tenant's claim was in unjust = enrichment for mistake of law. The claim is clearly a good one, but is = there a defence of change of position? Or, if there is any practical = difference in this situation, can the landlord insist on = counter-restitution? My own view is that, given the right circumstances, one or both of those = arguments should be available to the landlord. Jonathon Moore Melbourne, Australia ----- Original Message -----=20 From: James Watthey To: ENRICHMENT@LISTS.MCGILL.CA Sent: Friday, January 30, 2004 9:39 PM Subject: [RDG:] Barnet v Anandh 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. 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). James -- Andrew Tettenborn wrote: " 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." =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3 D ----- Original Message -----=20 From: "Lionel Smith" To: Sent: Saturday, January 31, 2004 1:35 AM Subject: [RDG:] Barnet v Anandh (Modified by Lionel Smith) > > > > 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. =3D > > > > Regards > > Andrew > ------=_NextPart_000_0018_01C3E965.94FD41E0 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable
James' first email asked rhetorically "How could the Defendant = possibly=20 claim to have changed his position in good faith?"  Following = Andrew's=20 response that change of position should indeed be available in the = absence of=20 dishonesty, James said "In principle, of course he can", noting however = that the=20 quantum of the change may or may not equal the price charge by the = defendant for=20 the service.

James' second email, but not the first, seems to me = to be=20 clearly right. Change of position in good faith is more than = possible.

A=20 very similar situation is currently working its way through the courts = in=20 Victoria.  An Act requires landlords to give tenants a "disclosure=20 statement" containing certain details about the lease at the = commencement of the=20 term.  If that is not done, the Act says that:  (a) the tenant = may=20 withhold rent until the disclosure statement is provided; and (b) the = tenant is=20 "not liable" for rent for the period for which there was no disclosure=20 statement.

Several cases have occurred recently where both the = landlord=20 and the tenant realised only years down the track that a disclosure = statement=20 had not been provided when the lease commenced.  The tenant then = sought to=20 recover all the rent he had paid in those years.  As the Act said = nothing=20 about that situation, the tenant's claim was in unjust enrichment for = mistake of=20 law. The claim is clearly a good one, but is there a defence of change = of=20 position?  Or, if there is any practical difference in this = situation, can=20 the landlord insist on counter-restitution?

My own view is that, = given=20 the right circumstances, one or both of those arguments should be = available to=20 the landlord.

Jonathon Moore
Melbourne, Australia

---- - = Original Message -----
From: James Watthey
To: ENRICHMENT@LISTS.MCGILL.CA=
Sent:=20 Friday, January 30, 2004 9:39 PM
Subject: [RDG:] Barnet v=20 Anandh


In principle, of course he can, but only to the value = that the=20 Court, after
hearing evidence on the subject, considers his work to = have been=20 worth in
all the circumstances. That might be the same as a qualified = and=20 registered
practitioner, but it might not be. The law should not (and = does=20 not) leave a
Claimant without a remedy where it is = not.

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=20 full 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 on=20 it (providing it is properly pleaded and the weather is too bad
for=20 golf).

James

--
Andrew Tettenborn wrote:

 " = If the=20 authority can get back what it paid Anandh, why can't Anandh,=20 who
presumptively didn't perform any worse than a registered=20 practitioner,
insist on being paid for the work he did? Circuity of=20 action."





=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D
----- Original=20 Message -----
From: "Lionel Smith" <lionel.smith@mcgill.ca>= To:=20 <ENRICHMENT@LISTS.MCGILL.CA= >
Sent:=20 Saturday, January 31, 2004 1:35 AM
Subject: [RDG:] Barnet v Anandh = (Modified=20 by Lionel Smith)


> >
> > Without having read = this=20 case, I offer the following "top of the head"
> > = thoughts:
>=20 >
> > 1.  If Anandh knew that he was not entitled to = receive=20 the sums from
> > his
> > clients because they were = tainted by=20 illegality then, in my view, he
> > should
> > not be = entitled=20 to rely on the change of position defence.
> >
> > = 2. =20 Counter-restitution (i.e. the assertion that he conferred a
> > = valuable
> > benefit on the clients which ought to be returned) = may be=20 a different
> > matter
> > (cf. Guinness v. Saunders), = but=20 ought not to be available here (1) on
> > the
> > = ground of=20 illegality, and (2) because the clients could argue that they
> = >=20 (subjectively) had not been enriched because they would not have = been
>=20 > prepared to pay anything for treatment by an unlicensed
> = >=20 ophthalmologist. =3D
> >
> > Regards
> >=20 Andrew
>
------=_NextPart_000_0018_01C3E965.94FD41E0-- ____________________________________________________________________ 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, 2 Feb 2004 07:27:45 -0500 Reply-To: neil_sadler@TALK21.COM Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Neil Sadler Subject: advice re research?) hello, Can any of your readers assist with Change of Position defence examples similar to this situation in English law? Mr A receives additional allowances as two lump sums as a result of a recent court case which his employer interpretes as in his favour. Mr A is pleased but surprised at the large sum involved and queries the amount and his entitlement twice with his employer who assure him all is correct. As a reslut he spends in excess of the net amount 9after income tax) which he has received on car, home improvements , holidays , etc He also increases his mortgage as an element of the income tax is due to be repaid him in 2004. 10 months later his employer demands the full amount back due to a "misinterpretation of the regulatios following further legal advice" The employer had failed to warn Mr A that they were seeking this advice and, as such he has spent the money. Can anyone assist with identical circumastances in the UK Courts and the liklihood of a successful application of the Change of Position defence Many thanks -------------------- talk21 your FREE portable and private address on the net at http://www.talk21.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, 4 Feb 2004 00:18:06 +0800 Reply-To: NICHOLAS TAN CHOI CHUAN Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: NICHOLAS TAN CHOI CHUAN Subject: Hearsay rule and its exceptions MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1 Content-Transfer-Encoding: 8bit I would like to check with anyone whether have any ideas the latest cases on the hearsay rule and its exceptions in uk or not. I need it urgently. ---------------------------------------------------------------- This e-mail has been sent via JARING webmail at http://www.jaring.my ____________________________________________________________________ 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, 3 Feb 2004 18:12:52 +0000 Reply-To: Andrew Tettenborn Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Andrew Tettenborn Subject: FWD: [RDG:] Hearsay rule and its exceptions Mime-Version: 1.0 Content-Type: text/plain; charset="ISO-8859-1" Content-Transfer-Encoding: 7bit Isn't this about as OT as one can get? We're not a general FLA bureau. Andrew >===== Original Message From NICHOLAS TAN CHOI CHUAN ===== I would like to check with anyone whether have any ideas the latest cases on the hearsay rule and its exceptions in uk or not. I need it urgently. ---------------------------------------------------------------- This e-mail has been sent via JARING webmail at http://www.jaring.my ____________________________________________________________________ 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 Bracton Professor of Law, University of Exeter, England Tel: 01392-263189 (int +44-1392-263189) Fax: 01392-263196 (int +44-1392-263196) Cellphone: 07729-266200 (int +44-7729-266200) Snailmail: School of Law University of Exeter Amory Building Rennes Drive Exeter EX4 4RJ England ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, email . ======================================================================= == Date: Fri, 6 Feb 2004 10:35:19 +0000 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Subject: McDonald v Coys of Kensington Mime-Version: 1.0 Content-Type: multipart/alternative; boundary="=====================_5162453==_.ALT" --=====================_5162453==_.ALT Content-Type: text/plain; charset="iso-8859-1"; format=flowed Content-Transfer-Encoding: quoted-printable Have you ever yearned for a personalised number plate? Or do you think=20 they're tacky? Would you think yourself enriched if you came by someone=20 else's personalised number plate? How about 'TAC 1'? These and other=20 fascinating issues are discussed in the language of subjective devaluation,= =20 incontrovertible and readily realised benefits by Mance LJ at [26]- [40]: http://www.bailii.org/ew/cases/EWCA/Civ/2004/47.html At [44] it also seems that defence counsel failed to spot until too late=20 that the contribution claim against his client should have been a=20 non-starter following the decision by Lord Steyn in Royal Brompton NHS=20 Trust v Hammond that a claim will not lie under the 1978 Act between two=20 parties, one of whom is liable in tort or breach of contract and the other= =20 in UE - a last ditch effort to amend was turned down - counsel for the=20 other side said that if the amendment had been allowed then he 'would have= =20 argued for contribution in accordance with the doctrine of equitable=20 subrogation pursuant to Banque Financi=E8re de la Cit=E9 v. Parc (Battersea)= =20 Ltd. [1999] 1 AC 221'. Presumably this means that he has read Niru and=20 like Moore-Bick J is untroubled by the fact that it is incoherent to allow= =20 a claim for contrib 'via subrog' where a direct claim for contrib is not=20 available, given the statements in Parc and Dubai that contrib and subrog=20 are both remedies for UE. CH4RLE2 --=====================_5162453==_.ALT Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Have you ever yearned for a personalised number plate?  Or do you think they're tacky?  Would you think yourself enriched if you came by someone else's personalised number plate?  How about 'TAC 1'?  These and other fascinating issues are discussed in the language of subjective devaluation, incontrovertible and readily realised benefits by Mance LJ at [26]-[40]:

http://www.bailii.org/ew/cases/EWCA/Civ/2004/47.html =

At [44] it also seems that defence counsel failed to spot until too late that the contribution claim against his client should have been a non-starter following the decision by Lord Steyn in Royal Brompton NHS Trust v Hammond that a claim will not lie under the 1978 Act between two parties, one of whom is liable in tort or breach of contract and the other in UE - a last ditch effort to amend was turned down - counsel for the other side said that if the amendment had been allowed then he 'would have argued for contribution in accordance with the doctrine of equitable subrogation pursuant to Banque Financi=E8re de la Cit=E9 v. Parc (Battersea) Ltd. [1999] 1 AC 221'.  Presumably this means that he has read Niru and like Moore-Bick J is untroubled by the fact that it is incoherent to allow a claim for contrib 'via subrog' where a direct claim for contrib is not available, given the statements in Parc and Dubai that contrib and subrog are both remedies for UE.

CH4RLE2
--=====================_5162453==_.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, 6 Feb 2004 10:42:47 +0000 Reply-To: Andrew Tettenborn Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Andrew Tettenborn Subject: Mistake and number plates Mime-Version: 1.0 Content-Type: multipart/alternative; boundary="=====================_6275734==.ALT" --=====================_6275734==.ALT Content-Type: text/plain; charset="iso-8859-1"; format=flowed Content-Transfer-Encoding: quoted-printable An original subject for a restitution problem yesterday in the English CA:= =20 McDonald v Coys of Kensington [2004] EWCA Civ. 47 . I sell by auction a Mercedes worth =A317,000 with a super plate (TAC 1)= worth=20 =A315,000. I tell the auctioneers to retain the registration and just sell= =20 the car, leaving it up to the buyer to get a bog-standard plate. The=20 auctioneers make it clear on my behalf (i.e. making it part of the contract= =20 of sale) that the buyer doesn't get the plate: the car is knocked down to=20 the buyer for =A317,000. Unfortunately there's been a cock-up by the=20 auctioneers in their dealings with DVLA Swansea, and in the event the buyer= =20 is entitled under road traffic law to both car and registration. I ask the= =20 buyer to transfer the registration back to me: he tells me to get stuffed.= =20 Buyer liable in unjust enrichment for the value of the plate. One might=20 have thought this was a simple case of mistake (I transfer more than the=20 contract provided). But the judgment also gives us an interesting tour of=20 reprehensible seeking-out (broadly pro) and incontrovertible benefit. Andrew 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 --=====================_6275734==.ALT Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable An original subject for a restitution problem yesterday in the English CA: McDonald v Coys of Kensington [2004] EWCA Civ. 47 .

I sell by auction a Mercedes worth =A317,000 with a super plate (TAC 1) worth =A315,000. I tell the auctioneers to retain the registration and just sell the car, leaving it up to the buyer to get a bog-standard plate. The auctioneers make it clear on my behalf (i.e. making it part of the contract of sale) that the buyer doesn't get the plate: the car is knocked down to the buyer for =A317,000. Unfortunately there's been a cock-up by the auctioneers in their dealings with DVLA Swansea, and in the event the buyer is entitled under road traffic law to both car and registration. I ask the buyer to transfer the registration back to me: he tells me to get stuffed. Buyer liable in unjust enrichment for the value of the plate. One might have thought this was a simple case of mistake (I transfer more than the contract provided). But the judgment also gives us an interesting tour of reprehensible seeking-out (broadly pro) and incontrovertible benefit.

Andrew



Andrew Tettenborn MA LLB
Bracton Professor of Law


Tel:           & nbsp;=      01392-263189   /   +44-392-263189 (international)
Cellphone:        &nb= sp;    07729-266200   /   +44-7729-266200 (international)
Fax:           & nbsp;=     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< /a>]= . --=====================_6275734==.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, 6 Feb 2004 09:02:35 -0500 Reply-To: David Cheifetz Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: David Cheifetz Subject: Re: McDonald v Coys of Kensington MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_0045_01C3EC8F.F6692430" This is a multi-part message in MIME format. ------=_NextPart_000_0045_01C3EC8F.F6692430 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Colleagues: The twists & turns, the past few years, in England's contribution = jurisprudence as judges struggle with the scope of the 1978 Civil = Liability (Contribution) Act have made for interesting reading. And = probably larger fees for solicitors and barristers.=20 Charles Mitchell, in his last message, mentions the seeming incongruity = of allowing what amounts to a common law claim for contribution where = the statutory claim must fail because the statute does not apply. I = agree with the view that the ultimate rationale for contribution is in = UE; however, I don't see the incongruity where the significant reason = why the contribution claim failed is merely that the categorisation of = the concurrent wrongdoers' liability to the injured person puts the = situation outside of the limited ambit of the contribution legislation. = Any other approach, I feel, is another reminder of Maitland's now almost = 1 century old reminder that while the forms of action have been = abolished they still rule from their graves. The logical and better solution, I feel - Occam's Razor - is to create = an analogous common law contribution right among concurrent wrongdoers = applicable to cases where the legislation does not apply, but generally = tracking the sensible portions of the jurisprudence on the statutory = right. =20 I recommend Weinrib, Contribution in a Contractual Setting (1976) 54 Can = Bar Rev 338 for an excellent and succinct explanation of why this is the = better approach. That is what is occurring in Ontario. Although the jurisprudence is = still in its infancy, Ontario judges have been able to avoid dodges like = equitable subrogation to allow contribution between multiple concurrent = wrongdoers whose wrongs have caused the same DAMAGES to the injured = person, in cases where the Ontario contribution statute - which is = limited to claims for contribution between concurrent tortfeasors - does = not apply, by creating an analogous common law contribution right. And = then importing the principles from the statutory contribution right into = the common law right. The rationale is, of course, that the common law = is creation of the judges, there is no statutory impediment, and that = the legislation may be looked at as indication of how the common law = should develop. =20 As to the statutory right, while the Ontario legislation is limited to = claims for contribution between tortfeasors, Ontario judges, = fortunately, been able to duck - actually, I think it's generally = overlooked - the distinction between DAMAGE and DAMAGES, which seems to = bedevil the English jurisprudence, because the Ontario statute, unlike = England's form (current and past), provides that contribution applies = where the DAMAGES have been caused by the fault or negligence of two or = more tortfeasors. David Cheifetz Toronto, Canada ----- Original Message -----=20 From: Charles Mitchell=20 To: ENRICHMENT@LISTS.MCGILL.CA=20 Sent: Friday, February 06, 2004 5:35 AM Subject: [RDG:] McDonald v Coys of Kensington Have you ever yearned for a personalised number plate? Or do you = think they're tacky? Would you think yourself enriched if you came by = someone else's personalised number plate? How about 'TAC 1'? These and = other fascinating issues are discussed in the language of subjective = devaluation, incontrovertible and readily realised benefits by Mance LJ = at [26]-[40]: http://www.bailii.org/ew/cases/EWCA/Civ/2004/47.html At [44] it also seems that defence counsel failed to spot until too = late that the contribution claim against his client should have been a = non-starter following the decision by Lord Steyn in Royal Brompton NHS = Trust v Hammond that a claim will not lie under the 1978 Act between two = parties, one of whom is liable in tort or breach of contract and the = other in UE - a last ditch effort to amend was turned down - counsel for = the other side said that if the amendment had been allowed then he = 'would have argued for contribution in accordance with the doctrine of = equitable subrogation pursuant to Banque Financi=E8re de la Cit=E9 v. = Parc (Battersea) Ltd. [1999] 1 AC 221'. Presumably this means that he = has read Niru and like Moore-Bick J is untroubled by the fact that it is = incoherent to allow a claim for contrib 'via subrog' where a direct = claim for contrib is not available, given the statements in Parc and = Dubai that contrib and subrog are both remedies for UE. CH4RLE2 ------=_NextPart_000_0045_01C3EC8F.F6692430 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable

 
The twists & turns, the past few = years, in=20 England's contribution jurisprudence as judges struggle with the scope = of the=20 1978 Civil Liability (Contribution) Act have made for interesting = reading.=20 And probably larger fees for solicitors and barristers.
 
Charles Mitchell, in his last=20 message, mentions the seeming incongruity of allowing what amounts = to a=20 common law claim for contribution where the statutory claim must = fail=20 because the statute does not apply. I agree with the view that the = ultimate=20 rationale for contribution is in UE; however, I don't see the = incongruity where=20 the significant reason why the contribution claim failed is merely that=20 the categorisation of the concurrent wrongdoers' liability to the = injured=20 person puts the situation outside of the limited ambit of the = contribution=20 legislation. Any other approach, I feel, is another reminder = of Maitland's=20 now almost 1 century old reminder that while the forms of = action have=20 been abolished they still rule from their graves.
 
The logical and = better solution, I feel -=20 Occam's Razor - is to create an analogous common law contribution = right=20 among concurrent wrongdoers applicable to cases where the legislation = does not=20 apply, but generally tracking the sensible portions of = the jurisprudence on=20 the statutory right.  
 
I recommend Weinrib, Contribution in a = Contractual=20 Setting (1976) 54 Can Bar Rev 338 for an excellent and succinct = explanation of=20 why this is the better approach.
 
That is what is occurring in Ontario. = Although the=20 jurisprudence is still in its infancy, Ontario judges have been able to = avoid=20 dodges like equitable subrogation to allow contribution between multiple = concurrent wrongdoers whose wrongs have caused the same DAMAGES to the = injured=20 person, in cases where the Ontario contribution statute - which is = limited to=20 claims for contribution between concurrent tortfeasors - does not apply, = by=20 creating an analogous common law  contribution right. And then = importing=20 the principles from the statutory contribution right into the common law = right.=20 The rationale is, of course, that the common law is creation of the = judges,=20 there is no statutory impediment, and that the legislation may be looked = at=20 as indication of how the common law should=20 develop.  
 
As to the statutory right, while the=20 Ontario legislation is limited to claims for contribution between=20 tortfeasors, Ontario judges, fortunately, been able to duck - = actually, I=20 think it's generally overlooked - the distinction between DAMAGE = and=20 DAMAGES, which seems to bedevil the English jurisprudence, because = the=20 Ontario statute, unlike England's form (current and past), provides = that=20 contribution applies where the DAMAGES have been caused by the fault or=20 negligence of two or more tortfeasors.
David Cheifetz
Toronto, Canada
 
 
----- Original Message -----
From:=20 Charles Mitchell
Sent: Friday, February 06, 2004 = 5:35=20 AM
Subject: [RDG:] McDonald v Coys = of=20 Kensington

Have you ever yearned for a personalised number = plate?  Or=20 do you think they're tacky?  Would you think yourself enriched if = you=20 came by someone else's personalised number plate?  How about 'TAC = 1'?  These and other fascinating issues are discussed in the = language of=20 subjective devaluation, incontrovertible and readily realised benefits = by=20 Mance LJ at [26]-[40]:

http://www.bailii.org/ew/cases/EWCA/Civ/2004/47.html

At=20 [44] it also seems that defence counsel failed to spot until too late = that the=20 contribution claim against his client should have been a non-starter = following=20 the decision by Lord Steyn in Royal Brompton NHS Trust v = Hammond that a=20 claim will not lie under the 1978 Act between two parties, one of whom = is=20 liable in tort or breach of contract and the other in UE - a last = ditch effort=20 to amend was turned down - counsel for the other side said that if the = amendment had been allowed then he 'would have argued for contribution = in=20 accordance with the doctrine of equitable subrogation pursuant to = Banque=20 Financi=E8re de la Cit=E9 v. Parc (Battersea) Ltd. [1999] 1 AC = 221'. =20 Presumably this means that he has read Niru and like Moore- Bick = J is=20 untroubled by the fact that it is incoherent to allow a claim for = contrib 'via=20 subrog' where a direct claim for contrib is not available, given the=20 statements in Parc and Dubai that contrib and subrog are = both=20 remedies for UE.

CH4RLE2
------=_NextPart_000_0045_01C3EC8F.F6692430-- ____________________________________________________________________ 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, 6 Feb 2004 15:42:49 +0000 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Subject: Contribution by another name Mime-Version: 1.0 Content-Type: multipart/alternative; boundary="=====================_23611265==_.ALT" --=====================_23611265==_.ALT Content-Type: text/plain; charset="us-ascii"; format=flowed In answer to David Cheifetz's suggestion, that the courts should recognize a common law contribution right for the benefit of meritorious claimants who fall through gaps in the statutory scheme: I agree! However this would still leave us with a mish-mash of overlapping common law and statutory recovery regimes and for this reason I think that a still better idea would be statutory reform, as I argue in Chap 4 of my book, esp at 4.64-4.69. My objection to Moore-Bick J's analysis in Niru is not that I oppose the courts working to fill in the gaps of the statutory scheme by recognizing a direct common law contribution right, but that in one breath M-B refuses to do this, and then in the next he recognizes a common law subrogation right which amounts to exactly the same thing, except in a more complicated way. Subrogation entails fictionally reviving someone else's rights and giving them to the claimant instead of just giving the claimant a right of his own. Why should C be entitled to this complicated subrogation remedy? Because D has been unjustly enriched at his expense. Why not give him a direct right then? A job for Occam's razor, indeed. Charles >Colleagues: > >The twists & turns, the past few years, in England's contribution >jurisprudence as judges struggle with the scope of the 1978 Civil >Liability (Contribution) Act have made for interesting reading. And >probably larger fees for solicitors and barristers. > >Charles Mitchell, in his last message, mentions the seeming incongruity of >allowing what amounts to a common law claim for contribution where the >statutory claim must fail because the statute does not apply. I agree with >the view that the ultimate rationale for contribution is in UE; however, I >don't see the incongruity where the significant reason why the >contribution claim failed is merely that the categorisation of the >concurrent wrongdoers' liability to the injured person puts the situation >outside of the limited ambit of the contribution legislation. Any other >approach, I feel, is another reminder of Maitland's now almost 1 century >old reminder that while the forms of action have been abolished they still >rule from their graves. > >The logical and better solution, I feel - Occam's Razor - is to create an >analogous common law contribution right among concurrent wrongdoers >applicable to cases where the legislation does not apply, but generally >tracking the sensible portions of the jurisprudence on the statutory right. > >I recommend Weinrib, Contribution in a Contractual Setting (1976) 54 Can >Bar Rev 338 for an excellent and succinct explanation of why this is the >better approach. > >That is what is occurring in Ontario. Although the jurisprudence is still >in its infancy, Ontario judges have been able to avoid dodges like >equitable subrogation to allow contribution between multiple concurrent >wrongdoers whose wrongs have caused the same DAMAGES to the injured >person, in cases where the Ontario contribution statute - which is limited >to claims for contribution between concurrent tortfeasors - does not >apply, by creating an analogous common law contribution right. And then >importing the principles from the statutory contribution right into the >common law right. The rationale is, of course, that the common law is >creation of the judges, there is no statutory impediment, and that the >legislation may be looked at as indication of how the common law should >develop. > >As to the statutory right, while the Ontario legislation is limited to >claims for contribution between tortfeasors, Ontario judges, fortunately, >been able to duck - actually, I think it's generally overlooked - the >distinction between DAMAGE and DAMAGES, which seems to bedevil the English >jurisprudence, because the Ontario statute, unlike England's form (current >and past), provides that contribution applies where the DAMAGES have been >caused by the fault or negligence of two or more tortfeasors. >David Cheifetz >Toronto, Canada --=====================_23611265==_.ALT Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable In answer to David Cheifetz's suggestion, that the courts should recognize a common law contribution right for the benefit of meritorious claimants who fall through gaps in the statutory scheme: I agree!  However this would still leave us with a mish-mash of overlapping common law and statutory recovery regimes and for this reason I think that a still better idea would be statutory reform, as I argue in Chap 4 of my book, esp at 4.64-4.69.  My objection to Moore-Bick J's analysis in Niru is not that I oppose the courts working to fill in the gaps of the statutory scheme by recognizing a direct common law contribution right, but that in one breath M-B refuses to do this, and then in the next he recognizes a common law subrogation right which amounts to exactly the same thing, except in a more complicated way.  Subrogation entails fictionally reviving someone else's rights and giving them to the claimant instead of just giving the claimant a right of his own.  Why should C be entitled to this complicated subrogation remedy?  Because D has been unjustly enriched at his expense.  Why not give him a direct right then?  A job for Occam's razor, indeed.

Charles


Colleagues:
 
The twists & turns, the past few years, in England's contribution jurisprudence as judges struggle with the scope of the 1978 Civil Liability (Contribution) Act have made for interesting reading. And probably larger fees for solicitors and barristers.
 
Charles Mitchell, in his last message, mention= s the seeming incongruity of allowing what amounts to a common law claim for contribution where the statutory claim must fail because the statute does not apply. I agree with the view that the ultimate rationale for contribution is in UE; however, I don't see the incongruity where the significant reason why the contribution claim failed is merely that the categorisation of the concurrent wrongdoers' liability to the injured person puts the situation outside of the limited ambit of the contribution legislation. Any other approach, I feel, is another reminder of Maitland's now almost 1 century old reminder that while the forms of action have been abolished they still rule from their=20 graves.
 
The logical and better solution, I feel - Occam's Razor - is to create an analogous common law contribution right among concurrent wrongdoers applicable to cases where the legislation does not apply, but generally tracking the sensible portions of the jurisprudence on the statutory right. 
 
I recommend Weinrib, Contribution in a Contractual Setting (1976) 54 Can Bar Rev 338 for an excellent and succinct explanation of why this is the better approach.
 
That is what is occurring in Ontario. Although the jurisprudence is still in its infancy, Ontario judges have been able to avoid dodges like equitable subrogation to allow contribution between multiple concurrent wrongdoers whose wrongs have caused the same DAMAGES to the injured person, in cases where the Ontario contribution statute - which is limited to claims for contribution between concurrent tortfeasors - does not apply, by creating an analogous common law  contribution right. And then importing the principles from the statutory contribution right into the common law right. The rationale is, of course, that the common law is creation of the judges, there is no statutory impediment, and that the legislation may be looked at as indication of how the common law should develop. 
 
As to the statutory right, while the Ontario legislation is limited to claims for contribution between tortfeasors, Ontario judges, fortunately, been able to duck - actually, I think it's generally overlooked - the distinction between DAMAGE and DAMAGES, which seems to bedevil the English jurisprudence, because the Ontario statute, unlike England's form (current and past), provides that contribution applies where the DAMAGES have been caused by the fault or negligence of two or more tortfeasors.
David Cheifetz
Toronto, Canada
--=====================_23611265==_.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: Tue, 10 Feb 2004 13:38:07 -0500 Reply-To: Dennis Klimchuk Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Dennis Klimchuk Subject: Slave labour &c. Mime-version: 1.0 Content-type: text/plain; charset="US-ASCII" Content-transfer-encoding: 7bit I have a couple linked questions that I hope are not too rudimentary, on which I'd appreciate the thoughts of list members. First: Would a claim for the value of forced labour be a claim in unjust enrichment narrowly construed--i.e., as an autonomous cause of action--or enrichment by wrong? Is P's claim, in other words, that she deserves the value of her labour because she did not intend to confer it as a gift, or that D ought to be stripped of the gains she realized through the commission of wrongs to P (e.g., the torts of assault and false imprisonment)? The former, I'd think, though it seems odd to say so. If so, is it possible that P has a second claim against D, one better reckoned as a claim in enrichment by wrong, to disgorge profits D realized through selling goods P was compelled to make? What about a claim against a third party, say a gov't for some amount of sales tax on goods made by slave labour? Second: Setting aside cases in which P retains legal title to an asset now in D's possession--and so setting aside too the question whether such cases belong in the law of unjust enrichment--are there examples of cases of subtractive enrichment by wrong, so to speak, i.e., cases in which (a) P's claim rests upon proof that D committed a civil wrong against her (P), and (b) P asks that D give something, or its value, back to her (P)? Thanks, Dennis Dennis Klimchuk Dept of Philosophy and Faculty of Law University of Western Ontario ____________________________________________________________________ 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, 10 Feb 2004 20:04:37 +0000 Reply-To: Andrew Tettenborn Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Andrew Tettenborn Subject: FWD: [RDG:] Slave labour &c. Mime-Version: 1.0 Content-Type: text/plain; charset="ISO-8859-1" Content-Transfer-Encoding: 7bit Two thoughts Andrew >===== Original Message From Dennis Klimchuk ===== I have a couple linked questions that I hope are not too rudimentary, on which I'd appreciate the thoughts of list members. First: Would a claim for the value of forced labour be a claim in unjust enrichment narrowly construed--i.e., as an autonomous cause of action--or enrichment by wrong? Is P's claim, in other words, that she deserves the value of her labour because she did not intend to confer it as a gift, or that D ought to be stripped of the gains she realized through the commission of wrongs to P (e.g., the torts of assault and false imprisonment)? The former, I'd think, though it seems odd to say so. If so, is it possible that P has a second claim against D, one better reckoned as a claim in enrichment by wrong, to disgorge profits D realized through selling goods P was compelled to make? What about a claim against a third party, say a gov't for some amount of sales tax on goods made by slave labour? ***** It could arguably be both: an enrichment may be both autonomous UE and arise from a wrong (e.g. you defraud me of $1,000). Isn't this the case with forced labour? The third party case is instructive, and you don't need to go to anything as esoteric as sales tax. Suppose X forces P to work in D's factory for free, thus relieving D of the necessity of paying proper labour. One would have thought P shd recover from D as a matter of course. ****** Second: Setting aside cases in which P retains legal title to an asset now in D's possession--and so setting aside too the question whether such cases belong in the law of unjust enrichment--are there examples of cases of subtractive enrichment by wrong, so to speak, i.e., cases in which (a) P's claim rests upon proof that D committed a civil wrong against her (P), and (b) P asks that D give something, or its value, back to her (P)? **** Arguably McDonald v Coys, recently discussed on the group, could be such a case (car registration number obtained through a breach of contract: held returnable: in fact it seems a plain mistake case, but there's no reason the pltf shouldn't alternatively focus on the wrong). Another possibility: cybersquatting, where the deft is held guilty of passing-off & has to surender the domain name. ********* Thanks, Dennis Dennis Klimchuk Dept of Philosophy and Faculty of Law University of Western Ontario ____________________________________________________________________ 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 Bracton Professor of Law, University of Exeter, England Tel: 01392-263189 (int +44-1392-263189) Fax: 01392-263196 (int +44-1392-263196) Cellphone: 07729-266200 (int +44-7729-266200) Snailmail: School of Law University of Exeter Amory Building Rennes Drive Exeter EX4 4RJ England ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, email . =============================================================== ========== Date: Mon, 16 Feb 2004 11:01:58 +1300 Reply-To: Kalev Crossland Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Kalev Crossland Subject: Account for profits by media in publishing defamatory material MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----_=_NextPart_001_01C3F40F.5538A6EE" This is a multi-part message in MIME format. ------_=_NextPart_001_01C3F40F.5538A6EE Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: quoted-printable Dear Restitution Group Members Is any of the group aware of any case in the Commonwealth (British) where a Court has awarded restitutionary relief (viz account for profits) against media in defamation claims (rather than compensatory based awards). This is on the basis that new stories generate advertising revenue which may exceed the amount awarded under a compensation basis. Many thanks =09 =09______________________________________ =09KJ Crossland=20 =09BA, LLB Cant. LLM (First Hons), MComLaw (First Hons) Auck. =09Partner =09STACE HAMMOND=20 =09BARRISTERS AND SOLICITORS =09PO BOX 19-101 =09DX GP20026 =09HAMILTON =09NEW ZEALAND =09Telephone: +64-7- 838 0299 Facsimile: +64-7- 838 2052 =09________________________________________________ =09CAUTION The information contained in this email message is legally privileged and confidential. If the reader of this message is not the intended recipient you are hereby notified that use, dissemination, distribution or reproduction of this message is prohibited. If you have received this message in error, please notify us immediately and delete the original message. Thank you. ######################################################################## #= ############ This e-mail message has been scanned for Viruses and Content and cleared = by MailMarshal For more information please visit www.marshalsoftware.com ######################################################################## #= ############ ------_=_NextPart_001_01C3F40F.5538A6EE Content-Type: text/html; charset="us-ascii" Content-Transfer-Encoding: quoted-printable Dear Restitution Group Members

Is any of the group aware of any = case in the Commonwealth (British) where a Court has awarded restitutiona= ry relief (viz account for profits) against media in defamation claims (r= ather than compensatory based awards).  This is on the basis that ne= w stories generate advertising revenue which may exceed the amount awarde= d under a compensation basis.

Many thanks


    ______________________________________<= /P>

    KJ Crossland

    B= A, LLB Cant= .  LLM = (First Hons), MComLaw (First Hons)<= /I> Auck= .

    Partner

    STACE HAMMOND

    B= ARRISTERS AND SOLICITORS

    P= O BOX 19-101

    D= X GP20026

    H= AMILTON

    N= EW ZEALAND

    T= elephone:= =   +64-7- 838 0= 299    &nb= sp;  Facsimile: <= B>  +64-7- 838 2052

    ________________________________________________

    CAUTION

= The information contained in this email message is legally privileged and= =20confidential.  If the reader of this message is not the intended = recipient you are hereby notified that use, dissemination, distribution o= r reproduction of this message is prohibited.  If you have received = this message in error, please notify us immediately and delete the origin= al message.  Thank you.

This e-mail message has been scanned for Viruses and Content and cleared = by=20 MailMarshal -=20 For more information please visit =20 =20 www.marshalsoftware.com=20
= ------_=_NextPart_001_01C3F40F.5538A6EE-- ____________________________________________________________________ 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, 18 Feb 2004 13:05:16 +0000 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Subject: Chater v Mortgage Agency Services Number Two Ltd [2004] 1 P & CR 4 Mime-Version: 1.0 Content-Type: multipart/alternative; boundary="=====================_14939125==_.ALT" --=====================_14939125==_.ALT Content-Type: text/plain; charset="us-ascii"; format=flowed Chater is an undue influence case that Steve Hedley posted on his website some time ago; I was prompted to take a closer look at it by its recent appearance in the [2004] P & CR. Of particular interest are Scott-Baker LJ's assumption at [20] and [22] that UI is an 'equitable wrong', and his analysis of the manifest disadvantage requirement at [25]-[30] which culminates in the observation at [30] that there is 'a possible distinction between a transaction explicable only on the basis that undue influence had been exercised to procure it (Lord Scarman [in Natwest v Morgan]) and one which called for an explanation, which if not given would enable the court to infer that it could only have been procured by undue influence (Lord Nicholls [in Etridge])' - he concludes that to the extent that the two approaches differ, Lord Nicholls' approach is to be preferred. I think that must be right, but it seems odd to me that he made no reference to Lindley LJ's forumlation in Allcard v Skinner, to which Lord Nicholls also referred in Etridge. Elsewhere in the forest: a big new contribution judgment in the HCA - http://www.austlii.edu.au/au/cases/cth/HCA/2004/7.html - including references to 'restitution for breach of trust' that are going to give Steven Elliott and Jamie Edelman an upset stomach. 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 --=====================_14939125==_.ALT Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Chater is an undue influence case that Steve Hedley posted on his website some time ago; I was prompted to take a closer look at it by its recent appearance in the [2004] P & CR.  Of particular interest are Scott-Baker LJ's assumption at [20] and [22] that UI is an 'equitable wrong', and his analysis of the manifest disadvantage requirement at [25]-[30] which culminates in the observation at [30] that there is 'a possible distinction between a transaction explicable only on the basis that undue influence had been exercised to procure it (Lord Scarman [in Natwest v Morgan]) and one which called for an explanation, which if not given would enable the court to infer that it could only have been procured by undue influence (Lord Nicholls [in Etridge])' - he concludes that to the extent that the two approaches differ, Lord Nicholls' approach is to be preferred. I think that must be right, but it seems odd to me that he made no reference to Lindley LJ's forumlation in Allcard v Skinner, to which Lord Nicholls also referred in Etridge.

Elsewhere in the forest: a big new contribution judgment in the HCA - http://www.austlii.edu.au/au/cases/cth/HCA/2004/7.html - including references to 'restitution for breach of trust' that are going= to give Steven Elliott and Jamie Edelman an upset stomach.


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 --=====================_14939125==_.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: Mon, 23 Feb 2004 11:04:05 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: New book Mime-Version: 1.0 (Apple Message framework v612) Content-Transfer-Encoding: 7bit Content-Type: text/plain; charset=US-ASCII; format=flowed Many RDG members were present at an excellent symposium in Jan 03 on unjust enrichment, held at the University of Western Ontario. The papers are now published by Hart under the title Understanding Unjust Enrichment, edited by Jason Neyers, Mitchell McInnes and Stephen Pitel, ISBN 1-84113-423-6. See http://www.hart.oxi.net/bookdetails.asp?id=581&bnd=0 Richard Hart has once again agreed to offer members of the RDG a 20% discount if they contact him directly to purchase the book at richard@hartpub.co.uk. Many thanks to Richard, and congratulations to the editors! 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: Mon, 23 Feb 2004 15:24:16 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: new case on illegality Mime-Version: 1.0 (Apple Message framework v612) Content-Transfer-Encoding: 7bit Content-Type: text/plain; charset=US-ASCII; format=flowed Last Thursday the SCC released Transport North American Express Inc. v. New Solutions Financial Corp., available for the cost of hiring the electrons at http://www.canlii.org/ca/cas/scc/2004/2004scc7.html in which the parties entered into a loan agreement which provided for a criminal rate of interest. By a 4-3 majority they restored the trial judge's holding that at least in a case involving sophisticated parties, it was possible to perform what they call "notional severance" so that the lender gets the maximum amount of interest allowed by the criminal law, that is 60% pa in Canada, rather than what they call "blue pencil severance" which requires that you strike out actual terms of the contract until you get down to a legal rate. Lionel PS please don't write to say it is not a restitution case, I know ... the same provision of the Criminal Code has generated many restitution cases. ____________________________________________________________________ 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, 24 Feb 2004 09:55:59 +0000 Reply-To: =?iso-8859-1?q?Christopher=20Kirkbride?= Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: =?iso-8859-1?q?Christopher=20Kirkbride?= Subject: Re: New book Comments: To: Lionel Smith In-Reply-To: MIME-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit They've also just published a collection of essays on the Quistclose loan: http://www.hart.oxi.net/bookdetails.asp?id=548&bnd=0 KR, CK. --- Lionel Smith wrote: > Many RDG members were present at an excellent > symposium in Jan 03 on > unjust enrichment, held at the University of Western > Ontario. > > The papers are now published by Hart under the title > Understanding > Unjust Enrichment, edited by Jason Neyers, Mitchell > McInnes and Stephen > Pitel, ISBN 1-84113-423-6. See > > http://www.hart.oxi.net/bookdetails.asp?id=581&bnd=0 > > Richard Hart has once again agreed to offer members > of the RDG a 20% > discount if they contact him directly to purchase > the book at > richard@hartpub.co.uk. > > Many thanks to Richard, and congratulations to the > editors! > > 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 > . ___________________________________________________________ Yahoo! Messenger - Communicate instantly..."Ping" your friends today! Download Messenger Now http://uk.messenger.yahoo.com/download/index.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: Tue, 24 Feb 2004 12:16:48 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Re: New book In-Reply-To: <20040224095559.49232.qmail@web25110.mail.ukl.yahoo.com> Mime-Version: 1.0 (Apple Message framework v612) Content-Type: text/plain; charset=US-ASCII; format=flowed Content-Transfer-Encoding: 7bit And I would also add that Richard Hart advises me that he will also give a 20% discount on that book to RDG members. Again he is at richard@hartpub.co.uk Lionel On 24 Feb 2004, at 04:55, Christopher Kirkbride wrote: > They've also just published a collection of essays on > the Quistclose loan: > > http://www.hart.oxi.net/bookdetails.asp?id=548&bnd=0 > > KR, > > CK. ____________________________________________________________________ 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, 26 Feb 2004 10:27:15 +0000 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Subject: Latimer v IRC [2004] UKPC 14 Mime-Version: 1.0 Content-Type: multipart/alternative; boundary="=====================_4165718==_.ALT" --=====================_4165718==_.ALT Content-Type: text/plain; charset="us-ascii"; format=flowed In Twinsectra Ltd v Yardley the HL all agreed that the money paid by Twinsectra to Sims was held on trust for T, subject to a power to apply it by way of loan to Yardley in accordance with the terms of the undertaking given by S to T. This trust was clearly resulting in pattern, since it carried the beneficial interest back to T, but there is some ambiguity in their Lordships' treatment of the question whether this was an express trust that came into existence because T had declared that it should, or a trust imposed by law, responding to T's absence of intention to benefit S (or Y) absolutely. At [14]-[17] Lord Hoffmann reviewed the two reasons given by Carnwath J first instance decision that there was no trust: (1) that the terms of the undertaking were vague, and (2) that Twinsectra's 'moving spirit', Ackermann, did not intend there to be a trust. Lord H rejected these reasons on the grounds that (1) the power, to the exercise of which T's equitable interest was subject, was sufficiently certain under the Re Baden in-or-out test, and (2) Ackermann's understanding was irrelevant because 'Whether a trust was created and what were its terms must depend upon the construction of the undertaking.' Neither of these findings takes us much further in our search for an answer to the question was the trust an express trust or a trust imposed by law? At [71], Lord Millett touched on the second of these points in terms which are at least consistent with the view that the trust was an express trust: >A settlor must, of course, possess the necessary intention to create a >trust, but his subjective intentions are irrelevant. If he enters into >arrangements which have the effect of creating a trust, it is not >necessary that he should appreciate that they do so; it is sufficient that >he intends to enter into them. Whether paragraphs 1 and 2 of the >undertaking created a Quistclose trust turns on the true construction of >those paragraphs However, at [91]-[92], Lord Millett then notes the fact that in Westdeutsche Lord B-W identified Quistclose trusts as a type of resulting trust (i.e. resulting in pattern AND imposed by law) and he also discusses Robert Chambers' book, and concludes that 'An analysis of the Quistclose trust as a resulting trust for the transferor with a mandate to the transferee to apply the money for the stated purpose sits comfortably with Dr Chambers' thesis, and it might be thought surprising that he does not adopt it.' Then at [100] he holds that 'the Quistclose trust to be an entirely orthodox example of the kind of default trust known as a resulting trust. The lender pays the money to the borrower by way of loan, but he does not part with the entire beneficial interest in the money, and insofar as he does not it is held on a resulting trust for the lender from the outset.' On balance then, it seems that Lord Millett thought of the trust for Twinsectra as a resulting trust imposed by law, and that although Lord Hoffmann was a little hazy on the point, he says nothing that contradicts this view, which is also consistent with Lord B-W in Westdeutsche. Further confirmation that this is the correct view now comes from Lord Millett's decision in the Privy Council in Latimer v IRC [2004] UKPC 14, available on-line at: http://www.privy-council.org.uk/output/Page472.asp This was a New Zealand case in which a trust was held not to be a charitable trust because the trust deed specified that money paid by the NZ government to the trustees for expenditure on the trust's primary (and clearly charitable) purpose would result to the NZ government in the event that the money was not spent. At [41] Lord Millett says: The trust deed is an elaborate mechanism which serves much the same purpose as a Quistclose trust: see Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567 and Twinsectra Ltd v Yardley [2002] 2 AC 164 at paras. 13, 81 and 99-100. It allows the Crown to make its funds available for a specified purpose and, insofar as not required for that purpose, to remain throughout its own property: see General Communications Ltd v Development Finance Corporation of New Zealand Ltd [1990] 3 NZLR 406. The only difference is that in the present case a resulting trust in favour of the settlor is express; whereas it is more usually implied. The word 'implied' is itself unhelpful when applied to trusts, since it can be used to mean implied-in-fact express trusts or implied-in-law imposed trusts - but here I take Lord Millett to use it in the latter sense! Charles --=====================_4165718==_.ALT Content-Type: text/html; charset="us-ascii" In Twinsectra Ltd v Yardley the HL all agreed that the money paid by Twinsectra to Sims was held on trust for T, subject to a power to apply it by way of loan to Yardley in accordance with the terms of the undertaking given by S to T.  This trust was clearly resulting in pattern, since it carried the beneficial interest back to T, but there is some ambiguity in their Lordships' treatment of the question whether this was an express trust that came into existence because T had declared that it should, or a trust imposed by law, responding to T's absence of intention to benefit S (or Y) absolutely.

At [14]-[17] Lord Hoffmann reviewed the two reasons given by Carnwath J first instance decision that there was no trust: (1) that the terms of the undertaking were vague, and (2) that Twinsectra's 'moving spirit', Ackermann, did not intend there to be a trust.  Lord H rejected these reasons on the grounds that (1) the power, to the exercise of which T's equitable interest was subject, was sufficiently certain under the Re Baden in-or-out test, and (2) Ackermann's understanding was irrelevant because 'Whether a trust was created and what were its terms must depend upon the construction of the undertaking.'  Neither of these findings takes us much further in our search for an answer to the question was the trust an express trust or a trust imposed by law?

At [71], Lord Millett touched on the second of these points in terms which are at least consistent with the view that the trust was an express trust:

A settlor must, of course, possess the necessary intention to create a trust, but his subjective intentions are irrelevant. If he enters into arrangements which have the effect of creating a trust, it is not necessary that he should appreciate that they do so; it is sufficient that he intends to enter into them. Whether paragraphs 1 and 2 of the undertaking created a Quistclose trust turns on the true construction of those paragraphs

However, at [91]-[92], Lord Millett then notes the fact that in Westdeutsche Lord B-W identified Quistclose trusts as a type of resulting trust (i.e. resulting in pattern AND imposed by law) and he also discusses Robert Chambers' book, and concludes that 'An analysis of the Quistclose trust as a resulting trust for the transferor with a mandate to the transferee to apply the money for the stated purpose sits comfortably with Dr Chambers' thesis, and it might be thought surprising that he does not adopt it.'  Then at [100] he holds that 'the Quistclose trust to be an entirely orthodox example of the kind of default trust known as a resulting trust. The lender pays the money to the borrower by way of loan, but he does not part with the entire beneficial interest in the money, and insofar as he does not it is held on a resulting trust for the lender from the outset.'

On balance then, it seems that Lord Millett thought of the trust for Twinsectra as a resulting trust imposed by law, and that although Lord Hoffmann was a little hazy on the point, he says nothing that contradicts this view, which is also consistent with Lord B-W in Westdeutsche.

Further confirmation that this is the correct view now comes from Lord Millett's decision in the Privy Council in Latimer v IRC [2004] UKPC 14, available on-line at:

http://www.privy- council.org.uk/output/Page472.asp

This was a New Zealand case in which a trust was held not to be a charitable trust because the trust deed specified that money paid by the NZ government to the trustees for expenditure on the trust's primary (and clearly charitable) purpose would result to the NZ government in the event that the money was not spent.  At [41] Lord Millett says:

The trust deed is an elaborate mechanism which serves much the same purpose as a Quistclose trust: see Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567 and Twinsectra Ltd v Yardley [2002] 2 AC 164 at paras. 13, 81 and 99-100.  It allows the Crown to make its funds available for a specified purpose and, insofar as not required for that purpose, to remain throughout its own property: see General Communications Ltd v Development Finance Corporation of New Zealand Ltd [1990] 3 NZLR 406.  The only difference is that in the present case a resulting trust in favour of the settlor is express; whereas it is more usually implied.

The word 'implied' is itself unhelpful when applied to trusts, since it can be used to mean implied-in-fact express trusts or implied-in-law imposed trusts - but here I take Lord Millett to use it in the latter sense!

Charles

--=====================_4165718==_.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, 26 Feb 2004 11:54:18 +0000 Reply-To: Oliver Radley-gardner Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Oliver Radley-gardner Content-Type: text/plain Content-Transfer-Encoding: binary MIME-Version: 1.0 This might be of interest to Quistclose fans: Patel and others are trustees of a Hindu Charity, who had acquired a plot of land ("the new site") for the construction of a temple. They eventually built on their old site. They intended to sell the new site with planning permission. Such planning permission was granted by Brent, conditional upon entering into a section 106 agreement. This involved money (550 K) being paid into a fund which was to be used for road improvements ("the road works"). The money was conceded by Brent to be held on trust, and found by the Vice Chancellor to be a Quistclose Trust (paras 25 - 28). Amongst other terms, the agreement required (1) That the money paid by the Charity be kept in a segregated, interest-bearing bank account; (2) That the money was to be spent on road works, with any excess to be returned to the Charity In fact, no account (as required by (1)) was ever set up. Instead, the Council speculated with the money on overnight money markets, along with its other accounts, and the Council turned a 300K profit. Only later, and without the knowledge of the Charity, did they restore the 550K, and the interest which would have been earned on that amount, being roughly 160K. The Council said they therefore only owed the "net" profit, being 140K. The Charity argued that this did not sufficiently observe the principle that a trustee must not profit from his own wrong, and that the full 300K had to be disgorged. The Charity argued that the 160K should not be viewed as being disgorged by being paid into the section 106 account. That money was still available to the Council under the terms of the agreement to defray the costs of the traffic works, and accordingly they were still "profiting" in this sense - particularly because there was an incentiv to spend the whole fund rather than return t! he surplus, so that there was a risk of unnecessary road works being carried out. The Vice-Chancellor found that the correct approach was to apportion the secret profit between the "purpose" under the Quistclose trust on the one hand and the Charity as the residual beneficiary on the other. This meant that the 160K went into the section 106 account, and the balance of the profits, 140 K, passing to the Charity. The V-C found that this did not involve the Council profiting from their wrong, as the 160K was available to them not due to a wrong, but under an agreement. I think this is one of the first cases where a Quistclose trustee has turned a secret profit. I can see the practical logic of what the V-C says, but the outcome still rankles a bit, in particular there seems to be something to be said for the Charity's argument that, on the facts, there is still a chance of a profit on the part of Brent. Is that too puritanical? ____________________________________________________________________ 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, 26 Feb 2004 12:41:39 +0000 Reply-To: Oliver Radley-gardner Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Oliver Radley-gardner Content-Type: text/plain Content-Transfer-Encoding: binary MIME-Version: 1.0 Sorry, case name slipped off the subject line: the case was Patel v Brent LBC [2003] EWHC 3081 (Ch)! ____________________________________________________________________ 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, 27 Feb 2004 13:19:06 +0000 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Subject: Patel v London Borough of Brent Mime-Version: 1.0 Content-Type: multipart/alternative; boundary="=====================_15999906==_.ALT" --=====================_15999906==_.ALT Content-Type: text/plain; charset="iso-8859-1"; format=flowed Content-Transfer-Encoding: quoted-printable Doesn't the question whether the charity unfairly 'profited' from the V-C's= =20 order turn on whether the council had the right to draw on the interest as= =20 well as the capital sum which should have been placed in the account under= =20 the terms of the agreement? If it did, then the council got nothing more=20 than it was entitled to, and as I understand the relevant terms, the=20 council was entitled in fact to do this: >Clause 5.1, entitled "Highway Improvements Payment": >The Owner shall on the date hereof deposit with the council the sum of=20 >five hundred and fifty thousand pounds (=A3550,000) which the council=20 >covenants with the Owner shall be solely attributable to paying for=20 >highway improvements and/or traffic management measures necessary to=20 >improve access arrangements to/from the Site compromising alterations to=20 >the junction of Neasden Lane North and Quainton Street which the council=20 >shall use its reasonable endeavours to complete prior to the issue of the= =20 >Certificate of Substantial Completion of the Highway Works and which in=20 >the opinion of the Engineer are necessary in the interests of highway=20 >safety and the free flow of traffic for improving the vehicular and=20 >pedestrian user for persons using the Site and for the general public as a= =20 >result of the increased highway use caused by the Development. >5.2: The Council shall place the said sum in a designated interest bearing= =20 >account with interest accruing to the fund and following satisfaction of=20 >the condition precedent contained in Clause 4.1 may draw down from the=20 >account in respect of expenses properly incurred pursuant to the Council's= =20 >covenant of this sub-clause and any amount of the said sum and accrued=20 >interest remaining in the account upon completion of the Council's highway= =20 >improvements and traffic management measures shall forthwith be released=20 >and repaid to the Mission (whether or not it shall then be the owner). The risk that the Engineer might opine that road works were necessary as=20 required under 5.1 when in fact this was not the case also seems to me to=20 be inherent in the terms of the agreement, and not to be a problem created= =20 by the V-C's order. On a (vaguely) connected point, the Charity Commission has just issued a=20 report on the misappropriation of charity funds, available on-line at: http://www.charity- commission.gov.uk/investigations/inquiryreports/misap.asp Various points of interest emerge: where a charity officer nicks charity=20 money the Commissioners expect the charity trustees to inform the police,=20 and also to recover the money by whatever means possible (e.g. action=20 against thief, claim under fidelity policy, claim against bank to recredit= =20 account if it has paid out on forged cheques, etc). If the trustees fail=20 to do the necessary, then the Commissioners will use their powers under s=20 18 of the Charity Act 1993 to make them do so or to replace them. Where=20 restitution is possible from a solvent thief, compound interest should be=20 recovered on top of the capital sum taken. Charles >X-Mailer: MIME-tools 5.411 (Entity 5.404) >Date: Thu, 26 Feb 2004 11:54:18 +0000 >Reply-To: Oliver=20 >Radley-gardner >Sender: Enrichment - Restitution & Unjust Enrichment Legal=20 >Issues >From: Oliver=20 >Radley-gardner >Subject: [RDG:] >To: ENRICHMENT@lists.mcgill.ca >X-KCLRealSpamScore: 0.0 >X-KCLSpamReport: >X-KCL-MailScanner: Found to be clean > >This might be of interest to Quistclose fans: > >Patel and others are trustees of a Hindu Charity, who had acquired a plot= =20 >of land ("the new site") for the construction of a temple. They eventually= =20 >built on their old site. They intended to sell the new site with planning= =20 >permission. Such planning permission was granted by Brent, conditional=20 >upon entering into a section 106 agreement. This involved money (550 K)=20 >being paid into a fund which was to be used for road improvements ("the=20 >road works"). The money was conceded by Brent to be held on trust, and=20 >found by the Vice Chancellor to be a Quistclose Trust (paras 25 - 28).=20 >Amongst other terms, the agreement required > >(1) That the money paid by the Charity be kept in a segregated,=20 >interest-bearing bank account; >(2) That the money was to be spent on road works, with any excess to be=20 >returned to the Charity > >In fact, no account (as required by (1)) was ever set up. Instead, the=20 >Council speculated with the money on overnight money markets, along with=20 >its other accounts, and the Council turned a 300K profit. Only later, and= =20 >without the knowledge of the Charity, did they restore the 550K, and the=20 >interest which would have been earned on that amount, being roughly 160K.= =20 >The Council said they therefore only owed the "net" profit, being 140K.=20 >The Charity argued that this did not sufficiently observe the principle=20 >that a trustee must not profit from his own wrong, and that the full 300K= =20 >had to be disgorged. The Charity argued that the 160K should not be viewed= =20 >as being disgorged by being paid into the section 106 account. That money= =20 >was still available to the Council under the terms of the agreement to=20 >defray the costs of the traffic works, and accordingly they were still=20 >"profiting" in this sense - particularly because there was an incentiv to= =20 >spend the whole fund rather than return t! > he surplus, so that there was a risk of unnecessary road works being=20 > carried out. > > >The Vice-Chancellor found that the correct approach was to apportion the=20 >secret profit between the "purpose" under the Quistclose trust on the one= =20 >hand and the Charity as the residual beneficiary on the other. This meant= =20 >that the 160K went into the section 106 account, and the balance of the=20 >profits, 140 K, passing to the Charity. The V-C found that this did not=20 >involve the Council profiting from their wrong, as the 160K was available= =20 >to them not due to a wrong, but under an agreement. > >I think this is one of the first cases where a Quistclose trustee has=20 >turned a secret profit. I can see the practical logic of what the V- C=20 >says, but the outcome still rankles a bit, in particular there seems to be= =20 >something to be said for the Charity's argument that, on the facts, there= =20 >is still a chance of a profit on the part of Brent. Is that too= puritanical? > >____________________________________________________________________ > 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 > . --=====================_15999906==_.ALT Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Doesn't the question whether the charity unfairly 'profited' from the V-C's order turn on whether the council had the right to draw on the interest as well as the capital sum which should have been placed in the account under the terms of the agreement?  If it did, then the council got nothing more than it was entitled to, and as I understand the relevant terms, the council was entitled in fact to do this:

Clause 5.1, entitled "Highway Improvements Payment":
The Owner shall on the date hereof deposit with the council the sum of five hundred and fifty thousand pounds (=A3550,000) which the council covenants with the Owner shall be solely attributable to paying for highway improvements and/or traffic management measures necessary to improve access arrangements to/from the Site compromising alterations to the junction of Neasden Lane North and Quainton Street which the council shall use its reasonable endeavours to complete prior to the issue of the Certificate of Substantial Completion of the Highway Works and which in the opinion of the Engineer are necessary in the interests of highway safety and the free flow of traffic for improving the vehicular and pedestrian user for persons using the Site and for the general public as a result of the increased highway use caused by the Development.
5.2: The Council shall place the said sum in a designated interest bearing account with interest accruing to the fund and following satisfaction of the condition precedent contained in Clause 4.1 may draw down from the account in respect of expenses properly incurred pursuant to the Council's covenant of this sub-clause and any amount of the said sum and accrued interest remaining in the account upon completion of the Council's highway improvements and traffic management measures shall forthwith be released and repaid to the Mission (whether or not it shall then be the owner).

The risk that the Engineer might opine that road works were necessary as required under 5.1 when in fact this was not the case also seems to me to be inherent in the terms of the agreement, and not to be a problem created by the V-C's order.

On a (vaguely) connected point, the Charity Commission has just issued a report on the misappropriation of charity funds, available on-line at:

http://www.charity- commission.gov.uk/investigations/inqu= iryreports/misap.asp

Various points of interest emerge: where a charity officer nicks charity money the Commissioners expect the charity trustees to inform the police, and also to recover the money by whatever means possible (e.g. action against thief, claim under fidelity policy, claim against bank to recredit account if it has paid out on forged cheques, etc).  If the trustees fail to do the necessary, then the Commissioners will use their powers under s 18 of the Charity Act 1993 to make them do so or to replace them.  Where restitution is possible from a solvent thief, compound interest should be recovered on top of the capital sum taken.

Charles


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This might be of interest to Quistclose fans:

Patel and others are trustees of a Hindu Charity, who had acquired a plot of land ("the new site") for the construction of a temple. They eventually built on their old site. They intended to sell the  new site with planning permission. Such planning permission was granted by Brent, conditional upon entering into a section 106 agreement. This involved money (550 K) being paid into a fund which was to be used for road improvements ("the road works"). The money was conceded by Brent to be held on trust, and found by the Vice Chancellor to be a Quistclose Trust (paras 25 - 28). Amongst other terms, the agreement required

(1) That the money paid by the Charity be kept in a segregated, interest-bearing bank account;
(2) That the money was to be spent on road works, with any excess to be returned to the Charity

In fact, no account (as required by (1)) was ever set up. Instead, the Council speculated with the money on overnight money markets, along with its other accounts, and the Council turned a 300K profit. Only later, and without the knowledge of the Charity, did they restore the 550K, and the interest which would have been earned on that amount, being roughly 160K. The Council said they therefore only owed the "net" profit, being 140K. The Charity argued that this did not sufficiently observe the principle that a trustee must not profit from his own wrong, and that the full 300K had to be disgorged. The Charity argued that the 160K should not be viewed as being disgorged by being paid into the section 106 account. That money was still available to the Council under the terms of the agreement to defray the costs of the traffic works, and accordingly they were still "profiting" in this sense - particularly because there was an incentiv to spend the whole fund rather than return t!
 he surplus, so that there was a risk of unnecessary road works being carried out.


The Vice-Chancellor found that the correct approach was to apportion the secret profit between the "purpose" under the Quistclose trust on the one hand and the Charity as the residual beneficiary on the other. This meant that the 160K went into the section 106 account, and the balance of the profits, 140 K, passing to the Charity. The V-C found that this did not involve the Council profiting from their wrong, as the 160K was available to them not due to a wrong, but under an agreement.

I think this is one of the first cases where a Quistclose trustee has turned a secret profit. I can see the practical logic of what the V-C says, but the outcome still rankles a bit, in particular there seems to be something to be said for the Charity's argument that, on the facts, there is still a chance of a profit on the part of Brent. Is that too puritanical?

____________________________________________________________________
 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 <listserv@lists.mcgill.ca>. To unsubscribe,
 send "signoff enrichment" to the same address. To make a posting to
 all group members, send to <enrichment@lists.mcgill.ca>. The list is
 run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, email
 <lionel.smith@mcgill.ca>.
--=====================_15999906==_.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 .