======================================================================= == Date: Tue, 11 May 2004 11:28:34 +0100 Reply-To: Andrew Tettenborn Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Andrew Tettenborn Subject: "at the expense of" - again Mime-Version: 1.0 Content-Type: multipart/alternative; boundary="=====================_9308453==.ALT" --=====================_9308453==.ALT Content-Type: text/plain; charset="us-ascii"; format=flowed Hi all: A slightly rum decision on "at the expense of" in the ChD: Re BHT (UK) Ltd [2004] EWHC 201. Natwest took a charge over the book-debts of BHT, which duly went belly-up in 1992. The liquidator made distributions ahead of the pref creds to Natwest on the assumption that the charge was fixed. As a result of Brumark [2001] 2 AC 710, it then appeared that the charge was probably a floater, not a fixed charge. Could the liquidator recover the payments from Natwest on the basis of mistake or some other form of UE? No, says the Dep Judge. The defunct company, if it recovered, would have to hand over the sums to the pref creds: it had therefore suffered no loss, and the enrichment wasn't at its expense. Can this be right? On the logic of this decision, it seems to follow that if the only effective creditor of a company is a pref cred, no liquidator could ever recover in UE in respect of the company's funds wrongfully paid away. Or am I missing something? Best 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]. --=====================_9308453==.ALT Content-Type: text/html; charset="us-ascii" Hi all:

A slightly rum decision on "at the expense of" in the ChD: Re BHT (UK) Ltd [2004] EWHC 201.

Natwest took a charge over the book-debts of BHT, which duly went belly-up in 1992. The liquidator made distributions ahead of the pref creds to Natwest on the assumption that the charge was fixed. As a result of Brumark [2001] 2 AC 710, it then appeared that the charge was probably a floater, not a fixed charge. Could the liquidator recover the payments from Natwest on the basis of mistake or some other form of UE? No, says the Dep Judge. The defunct company, if it recovered, would have to hand over the sums to the pref creds: it had therefore suffered no loss, and the enrichment wasn't at its expense.

Can this be right? On the logic of this decision, it seems to follow that if the only effective creditor of a company is a pref cred, no liquidator could ever recover in UE in respect of the company's funds wrongfully paid away. Or am I missing something?

Best

Andrew

Andrew Tettenborn MA LLB
Bracton Professor of Law

Tel:           & nbsp;           01392-263189   /   +44-392-263189 (international)
Cellphone:             07729-266200   /   +44-7729-266200 (international)
Fax:           & nbsp;           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]. --=====================_9308453==.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, 11 May 2004 11:44:01 +0100 Reply-To: Benedict White Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Benedict White Subject: Re: "at the expense of" - again In-Reply-To: <6.0.0.22.0.20040511111414.01cb4940@cyrus1.ex.ac.uk> MIME-Version: 1.0 Content-type: text/plain; charset=US-ASCII Content-transfer-encoding: 7BIT On 11 May 2004 at 11:28, Andrew Tettenborn wrote: > > Hi all: > > A slightly rum decision on "at the expense of" in the ChD: Re BHT (UK) Ltd [2004] EWHC 201. > > Natwest took a charge over the book-debts of BHT, which duly went belly-up in 1992. The > liquidator made distributions ahead of the pref creds to Natwest on the assumption that the > charge was fixed. As a result of Brumark [2001] 2 AC 710, it then appeared that the charge was > probably a floater, not a fixed charge. Could the liquidator recover the payments from Natwest > on the basis of mistake or some other form of UE? No, says the Dep Judge. The defunct > company, if it recovered, would have to hand over the sums to the pref creds: it had therefore > suffered no loss, and the enrichment wasn't at its expense. > > Can this be right? On the logic of this decision, it seems to follow that if the only effective > creditor of a company is a pref cred, no liquidator could ever recover in UE in respect of the > company's funds wrongfully paid away. Or am I missing something? > > It seems more than slightly rum to me, it seems to do grave damage to the principle of preferential creditors. The interesting question will be what can the preferential creditors do about it. Clearly a mistake has been made which cost them money. Kind regards Benedict White ____________________________________________________________________ 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, 11 May 2004 14:56:33 +0100 Reply-To: Michael Rush Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Michael Rush Subject: Re: "at the expense of" - again Comments: To: Benedict White In-Reply-To: <40A0BC81.14341.477711B@localhost> Content-Type: text/plain Content-Transfer-Encoding: binary MIME-Version: 1.0 The result also seems to contradict the decision of Lord Hope in Customs and Excise Comr's v McMaster Stores. That case concerned the ability of a receiver to recover overpaid VAT which had been collected from third parties and paid over to the Revenue. The receiver was successful in his action because (a) it was assumed that the money paid to the Revenue came at the company's expense, and (b) restitution would not result in the company being unjustly enriched because the recovered sum would have to be distributed to its secured and unsecured creditors. Michael In message <40A0BC81.14341.477711B@localhost> Benedict White writes: > On 11 May 2004 at 11:28, Andrew Tettenborn wrote: > > > > > Hi all: > > > > A slightly rum decision on "at the expense of" in the ChD: Re BHT (UK) Ltd [2004] EWHC 201. > > > > Natwest took a charge over the book-debts of BHT, which duly went belly-up in 1992. The > > liquidator made distributions ahead of the pref creds to Natwest on the assumption that the > > charge was fixed. As a result of Brumark [2001] 2 AC 710, it then appeared that the charge was > > probably a floater, not a fixed charge. Could the liquidator recover the payments from Natwest > > on the basis of mistake or some other form of UE? No, says the Dep Judge. The defunct > > company, if it recovered, would have to hand over the sums to the pref creds: it had therefore > > suffered no loss, and the enrichment wasn't at its expense. > > > > Can this be right? On the logic of this decision, it seems to follow that if the only effective > > creditor of a company is a pref cred, no liquidator could ever recover in UE in respect of the > > company's funds wrongfully paid away. Or am I missing something? > > > > > It seems more than slightly rum to me, it seems to do grave > damage to the principle of preferential creditors. > > The interesting question will be what can the preferential creditors > do about it. Clearly a mistake has been made which cost them > money. > > Kind regards > > Benedict White > > ____________________________________________________________________ > This message was delivered through the Restitution Discussion Group, > an international internet LISTSERV devoted to all aspects of the law > of unjust enrichment. To subscribe, send "subscribe enrichment" in > the body of a message to . To unsubscribe, > send "signoff enrichment" to the same address. To make a posting to > all group members, send to . The list is > run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, email > . > ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6635, email . ======================================================================= == Date: Wed, 12 May 2004 12:33:01 +0100 Reply-To: duncan.sheehan@uea.ac.uk Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Duncan Sheehan Subject: Re: "at the expense of" - again Comments: To: Andrew Tettenborn In-Reply-To: <6.0.0.22.0.20040511111414.01cb4940@cyrus1.ex.ac.uk> MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_0001_01C4381D.43C07570" This is a multi-part message in MIME format. ------=_NextPart_000_0001_01C4381D.43C07570 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit Well on a first look it's wrong, for all the reasons Andrew Tettenborn suggests, isn't it? From the point of view of the preferential creditors they should have an action against the liquidator. Kevin Garnett QC giving judgment goes into the question and suggests that preferential creditors have a claim against a receiver for failing to pay them first before the floating chargee [para 20]. By parity the preferentials have a claim against the liquidator. This seems reasonable enough to me. The liquidator has a statutory duty and has failed (on the face of it) to carry it out. Whether the preferentials have a claim against NatWest is the big question. NatWest is clearly enriched. There has clearly been a mistake. Yet the preferential creditors never had the money. Further they were only ever owed the money. They have to say that were it not for the mistake (breach of duty) of the liquidators they would have been paid. Kevin Garnett, I think, hints this might work in para 20. Shades of interceptive subtraction... It seems needlessly complicated to me. Intuitively we want to let the liquidator sue, and then sort it out. Duncan Dr Duncan Sheehan Postgraduate Admissions Officer Norwich Law School University of East Anglia Norwich NR4 7TJ United Kingdom -----Original Message----- From: Enrichment - Restitution & Unjust Enrichment Legal Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA]On Behalf Of Andrew Tettenborn Sent: Tuesday, May 11, 2004 11:29 AM To: ENRICHMENT@LISTS.MCGILL.CA Subject: [RDG:] "at the expense of" - again Hi all: A slightly rum decision on "at the expense of" in the ChD: Re BHT (UK) Ltd [2004] EWHC 201. Natwest took a charge over the book-debts of BHT, which duly went belly-up in 1992. The liquidator made distributions ahead of the pref creds to Natwest on the assumption that the charge was fixed. As a result of Brumark [2001] 2 AC 710, it then appeared that the charge was probably a floater, not a fixed charge. Could the liquidator recover the payments from Natwest on the basis of mistake or some other form of UE? No, says the Dep Judge. The defunct company, if it recovered, would have to hand over the sums to the pref creds: it had therefore suffered no loss, and the enrichment wasn't at its expense. Can this be right? On the logic of this decision, it seems to follow that if the only effective creditor of a company is a pref cred, no liquidator could ever recover in UE in respect of the company's funds wrongfully paid away. Or am I missing something? Best 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]. ------=_NextPart_000_0001_01C4381D.43C07570 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable

Well=20 on a first look it's wrong, for all the reasons Andrew Tettenborn = suggests,=20 isn't it? From the point of view of the preferential creditors = they should=20 have an action against the liquidator. Kevin Garnett QC giving judgment = goes=20 into the question and suggests that preferential creditors have a claim = against=20 a receiver for failing to pay them first before the floating chargee = [para 20].=20 By parity the preferentials have a claim against the liquidator. This = seems=20 reasonable enough to me. The liquidator has a statutory duty and has = failed (on=20 the face of it) to carry it out. Whether the preferentials have a claim = against=20 NatWest is the big question. NatWest is clearly enriched. There has = clearly been=20 a mistake. Yet the preferential creditors never had the money. Further = they were=20 only ever owed the money. They have to say that were it not for the = mistake=20 (breach of duty) of the liquidators they would have been paid. Kevin = Garnett, I=20 think, hints this might work in para 20. Shades of interceptive=20 subtraction...

It=20 seems needlessly complicated to me. Intuitively we want to let the = liquidator=20 sue, and then sort it out.

Duncan=20

Dr Duncan Sheehan
Postgraduate Admissions = Officer
Norwich=20 Law School
University of East Anglia
Norwich NR4 7TJ
United=20 Kingdom

-----Original Message-----
From: Enrichment - = Restitution=20 & Unjust Enrichment Legal Issues = [mailto:ENRICHMENT@LISTS.MCGILL.CA]On=20 Behalf Of Andrew Tettenborn
Sent: Tuesday, May 11, 2004 = 11:29=20 AM
To: ENRICHMENT@LISTS.MCGILL.CA
Subject: [RDG:] = "at the=20 expense of" - again

Hi all:

A slightly rum = decision=20 on "at the expense of" in the ChD: Re BHT (UK) Ltd = [2004] EWHC=20 201.

Natwest took a charge over the book-debts of BHT, which = duly went=20 belly-up in 1992. The liquidator made distributions ahead of the pref = creds to=20 Natwest on the assumption that the charge was fixed. As a result of = Brumark=20 [2001] 2 AC 710, it then appeared that the charge was probably = a=20 floater, not a fixed charge. Could the liquidator = recover the=20 payments from Natwest on the basis of mistake or some other form of = UE? No,=20 says the Dep Judge. The defunct company, if it recovered, would have = to hand=20 over the sums to the pref creds: it had therefore suffered no loss, = and the=20 enrichment wasn't at its expense.

Can this be right? On the = logic of=20 this decision, it seems to follow that if the only effective creditor = of a=20 company is a pref cred, no liquidator could ever recover in UE in = respect of=20 the company's funds wrongfully paid away. Or am I missing=20 something?

Best

Andrew

Andrew Tettenborn MA LLB
Bracton Professor = of=20 = Law

Tel:        &nbs p;=              ;&= nbsp;=20 01392-263189   /   +44-392-263189=20 = (international)
Cellphone:      <= /X-TAB>      =20 07729-266200   /   +44-7729-266200=20 = (international)
Fax:         &n= bsp;           & nb= sp; =20 01392-263196    /   +44-392-263196=20 (international)

Snailmail:    School of=20 = Law,
          &nb sp= ;       =20 University of=20 = Exeter,
           &n= bsp;       =20 Amory=20 = Building,
         &nbs p;=         =20 Rennes=20 = Drive,
          & nb= sp;       =20 Exeter EX4=20 = 4RJ
          &nbs p;=        =20 = England

         &n bs= p;        =20 [School homepage: http://www.ex.ac.uk/law/=20 = ]
            &n= bsp;      =20 [My homepage:=20 =
           & nb= sp;        =20 http://www.ex.ac.uk/law/staff/tettenborn/index.html< /A= >].=20

The below cases may interest some members.

Cheltenham & Gloucester plc v. Appleyard [2004] EWCA Civ 291 contains a helpful and discursive review of equitable subrogation, in particular at paragraphs 32- 44.

Clarke LJ's judgment in Niru Battery Manufacturing Company v. Milestone Trading Limited [2004] EWCA Civ 487 is likewise of interest - not least because of hints at systemic and categorical difficulties discussed at paragraphs 63-64 (and also the relationship with recoupment and statutory contribution briefly mentioned at the end of the judgment).

Regards,

MSN Search, le moteur de recherche qui pense comme vous ! Cliquez-ici ____________________________________________________________________ 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, 26 May 2004 16:49:00 +0100 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Subject: Monsanto Canada Inc v Schmeiser 2004 SCC 34 Mime-Version: 1.0 Content-Type: multipart/alternative; boundary="=====================_10871609==_.ALT" --=====================_10871609==_.ALT Content-Type: text/plain; charset="us-ascii"; format=flowed No account of profits for patent infringement where no causal link between infringing acts and D's profit: Monsanto Canada Inc. v. Schmeiser, 2004 SCC 34 [98]-[105]; on-line at: http://www.canlii.org/ca/cas/scc/2004/2004scc34.html CM 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 --=====================_10871609==_.ALT Content-Type: text/html; charset="us-ascii" No account of profits for patent infringement where no causal link between infringing acts and D's profit: Monsanto Canada Inc. v. Schmeiser, 2004 SCC 34 [98]-[105]; on-line at: http://www.canlii.org/ca/cas/scc/2004/2004scc34.html

CM

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 --=====================_10871609==_.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 .