========================================================================= Date: Mon, 28 Jan 2008 12:35:05 +0000 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Subject: Conference on 'Philosophical Foundations of the Law of Unjust Enrichment' Comments: cc: obligations@uwo.ca Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed On 11 and 12 April 2008, we will be holding a conference on 'Philosophical Foundations of the Law of Unjust Enrichment' at King's College London. All are welcome, including students (for whom there is a special rate). Conference details and a booking form are available at this link: http://www.kcl.ac.uk/schools/law/events/pfue. Please come and please pass this message on to anyone else who you think might be interested. Regards, Charles Professor Charles Mitchell School of Law King's College London Strand London WC2R 2LS tel: 020 7848 2290 fax: 020 7848 2465 ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . ========================================================================= Date: Wed, 30 Jan 2008 17:11:18 -0000 Reply-To: James Lee Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: James Lee Subject: Mistake and Voluntary Transfers MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: quoted-printable Dear All, Members may be interested to note the following recent (and short) case, decided by Lewison J on mistake and voluntary transfers. The transferor under a supposedly tax efficient scheme "mistakenly believed, at the times of the transfers, that there was a real chance that he would survive for seven years whereas in fact at that time his state of health was such that he had no real chance of surviving for that long". The transfer was set aside. Ogden & Anor v Trustees of the RHS Griffiths 2003 Settlement & Ors [2008] EWHC 118 (Ch) (25 January 2008)=20 URL: http://www.bailii.org/ew/cases/EWHC/Ch/2008/118.html Best wishes, James Lee -- James Lee Teaching Fellow School of Law University of Reading Foxhill House, rm. 2.09 Whiteknights Road, Earley Reading RG6 7BA United Kingdom Phone: +44 (0) 118 378 5643 Fax: +44 (0) 118 378 4543 Email: j.s.lee@reading.ac.uk Web: www.reading.ac.uk/law ____________________________________________________________________ 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, . ========================================================================= Date: Wed, 30 Jan 2008 22:03:34 +0000 Reply-To: Eoin O'Dell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Eoin O'Dell Subject: Re: Mistake and Voluntary Transfers Comments: To: James Lee In-Reply-To: <333D98CA3BE3B94099A2BD85114276F801824AFE@vime1.rdg- home.ad.rdg.ac.uk> MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1 Content-Transfer-Encoding: quoted-printable Hi all, Thanks James for bringing this interesting case to my attention. But isn'= t it a misprediction as to a future event (the time of his death)? If so, should= n't it be outside the definition of mistake? Is that one of the points of Dextra= Bank & Trust Co Ltd v Bank of Jamaica [2001] UKPC 50 (26 November 2001) (which doesn't seem to= have been discussed by Lewison J). What am I missing here? Any guidance gratef= ully appreciated. Eoin. Quoting James Lee : > Dear All, > > Members may be interested to note the following recent (and short) case= , > decided by Lewison J on mistake and voluntary transfers. The transferor > under a supposedly tax efficient scheme "mistakenly believed, at the > times of the transfers, that there was a real chance that he would > survive for seven years whereas in fact at that time his state of healt= h > was such that he had no real chance of surviving for that long". The > transfer was set aside. > > Ogden & Anor v Trustees of the RHS Griffiths 2003 Settlement & Ors > [2008] EWHC 118 (Ch) (25 January 2008) > URL: http://www.bailii.org/ew/cases/EWHC/Ch/2008/118.html > > Best wishes, > > James Lee > > -- > James Lee > Teaching Fellow > School of Law > University of Reading > Foxhill House, rm. 2.09 > Whiteknights Road, Earley > Reading RG6 7BA > United Kingdom > > Phone: +44 (0) 118 378 5643 > Fax: +44 (0) 118 378 4543 > Email: j.s.lee@reading.ac.uk > Web: www.reading.ac.uk/law > > ____________________________________________________________________ > 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, . > > =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D = =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D = =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D Dr Eoin O'Dell main: +353-1-896 1125 Fellow & Senior Lecturer direct: +353-1-896 1178 Director of Research mobile: +353-87-2021120 School of Law main fax: +353-1-677 0449 Trinity College blog: http://www.cearta.ie Dublin 2 web: http://www.eoinodell.com Ireland odelle@tcd.ie \ eoin.odell@tcd.ie ------------------------------------------------------------------------ All opinions are personal: no legal responsibility is accepted for this email or attachments, which may be confidential or privileged or subject to a Freedom of Information request: if you have received this in error, let me know and delete it. Please think 'green' before printing. Thanks. =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D = =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D = =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D ____________________________________________________________________ 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, . ========================================================================= Date: Wed, 30 Jan 2008 23:01:23 -0000 Reply-To: David Lascelles Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: David Lascelles Subject: Re: Mistake and Voluntary Transfers Comments: To: Eoin O'Dell In-Reply-To: <1201730614.47a0f436abe95@mymail.tcd.ie> MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 7bit Dear All, From reading James' email I had also wondered why this was not categorised as a misprediction as opposed to a mistake. Although there is no mention of Dextra in Ogden nor any discussion (in terms) of mistakes and mispredictions, Lewison J does find that the transferor was suffering from cancer at the time of the transaction, was unaware of that and that "[t]he relevant mistake was a mistake about [his own] state of health." (para 24). As Lewison J holds, that can be characterised as a mistake about existing fact. Liability was established upon this (alternative) basis rather than in relation to the claimant's primary contention that the transferor had "mistakenly believed, at the times of the transfers, that there was a real chance that he would survive for seven years whereas in fact at that time his state of health was such that he had no real chance of surviving for that long" In line with the mistake/misprediction divide, Lewison J agreed with counsel that had the transferor "been a hale and hearty young man and had entered into all the relevant transactions but fallen under a bus the following week, his executors would not have been able to ask the court to set aside the transactions on the ground of a mistake. I think that is right. The operative mistake must... be a mistake which existed at the time when the transaction was entered into. The mere falsification of expectations entertained at the date of the transaction is not, in my judgment, enough." As far as I am aware the mistake/misprediction distinction to which reference was made in Dextra has not been expressly discussed by reference to Dextra in any English decision. I don't know whether any list members are aware of any such decision? Best, David David Lascelles Barrister Littleton Chambers, Temple -----Original Message----- From: Enrichment - Restitution & Unjust Enrichment Legal Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of Eoin O'Dell Sent: 30 January 2008 22:04 To: ENRICHMENT@LISTS.MCGILL.CA Subject: [Bulk] Re: [RDG] Mistake and Voluntary Transfers Hi all, Thanks James for bringing this interesting case to my attention. But isn't it a misprediction as to a future event (the time of his death)? If so, shouldn't it be outside the definition of mistake? Is that one of the points of Dextra Bank & Trust Co Ltd v Bank of Jamaica [2001] UKPC 50 (26 November 2001) (which doesn't seem to have been discussed by Lewison J). What am I missing here? Any guidance gratefully appreciated. Eoin. Quoting James Lee : > Dear All, > > Members may be interested to note the following recent (and short) case, > decided by Lewison J on mistake and voluntary transfers. The transferor > under a supposedly tax efficient scheme "mistakenly believed, at the > times of the transfers, that there was a real chance that he would > survive for seven years whereas in fact at that time his state of health > was such that he had no real chance of surviving for that long". The > transfer was set aside. > > Ogden & Anor v Trustees of the RHS Griffiths 2003 Settlement & Ors > [2008] EWHC 118 (Ch) (25 January 2008) > URL: http://www.bailii.org/ew/cases/EWHC/Ch/2008/118.html > > Best wishes, > > James Lee > > -- > James Lee > Teaching Fellow > School of Law > University of Reading > Foxhill House, rm. 2.09 > Whiteknights Road, Earley > Reading RG6 7BA > United Kingdom > > Phone: +44 (0) 118 378 5643 > Fax: +44 (0) 118 378 4543 > Email: j.s.lee@reading.ac.uk > Web: www.reading.ac.uk/law > > ____________________________________________________________________ > 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, . > > ======================================================================= Dr Eoin O'Dell main: +353-1-896 1125 Fellow & Senior Lecturer direct: +353-1-896 1178 Director of Research mobile: +353-87-2021120 School of Law main fax: +353-1-677 0449 Trinity College blog: http://www.cearta.ie Dublin 2 web: http://www.eoinodell.com Ireland odelle@tcd.ie \ eoin.odell@tcd.ie ------------------------------------------------------------------------ All opinions are personal: no legal responsibility is accepted for this email or attachments, which may be confidential or privileged or subject to a Freedom of Information request: if you have received this in error, let me know and delete it. Please think 'green' before printing. Thanks. ======================================================================= ____________________________________________________________________ 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, . ____________________________________________________________________ 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, . ========================================================================= Date: Thu, 31 Jan 2008 09:51:46 -0000 Reply-To: Duncan.Sheehan@UEA.AC.UK Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Duncan Sheehan Subject: Re: Mistake and Voluntary Transfers Comments: To: Eoin O'Dell In-Reply-To: <1201730614.47a0f436abe95@mymail.tcd.ie> MIME-Version: 1.0 Content-Type: text/plain;charset=iso-8859-1 Content-Transfer-Encoding: 8bit Lewison J does say later on "It is plain in my judgment that a mistake of fact is capable of bringing the equitable jurisdiction into play. All that is required is a mistake of a sufficiently serious nature. In my judgment a mistake about an existing or pre-existing fact if sufficiently serious is enough to bring the jurisdiction into play." at para 25 He clearly knows what a mistake is, I think. It seems to me that there are two possibilities 1. Eoin's misprediction about the time of his death 2. A mistake as to the current state of his health - from which he deduces time of death Number 2 counts - number 1 doesn't (or shouldn't). It's not easy to tell the difference though Duncan > Hi all,> > Thanks James for bringing this interesting case to my attention. But isn't > it a > misprediction as to a future event (the time of his death)? If so, > shouldn't it > be outside the definition of mistake? Is that one of the points of Dextra > Bank & > Trust Co Ltd v Bank of Jamaica [2001] UKPC 50 (26 November 2001) > (which doesn't seem to > have > been discussed by Lewison J). What am I missing here? Any guidance > gratefully > appreciated. > > Eoin. > > > Quoting James Lee : > >> Dear All, >> >> Members may be interested to note the following recent (and short) case, >> decided by Lewison J on mistake and voluntary transfers. The transferor >> under a supposedly tax efficient scheme "mistakenly believed, at the >> times of the transfers, that there was a real chance that he would >> survive for seven years whereas in fact at that time his state of health >> was such that he had no real chance of surviving for that long". The >> transfer was set aside. >> >> Ogden & Anor v Trustees of the RHS Griffiths 2003 Settlement & Ors >> [2008] EWHC 118 (Ch) (25 January 2008) >> URL: http://www.bailii.org/ew/cases/EWHC/Ch/2008/118.html >> >> Best wishes, >> >> James Lee >> >> -- >> James Lee >> Teaching Fellow >> School of Law >> University of Reading >> Foxhill House, rm. 2.09 >> Whiteknights Road, Earley >> Reading RG6 7BA >> United Kingdom >> >> Phone: +44 (0) 118 378 5643 >> Fax: +44 (0) 118 378 4543 >> Email: j.s.lee@reading.ac.uk >> Web: www.reading.ac.uk/law >> >> ____________________________________________________________________ >> 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, . >> >> > > > ======================================================================== > Dr Eoin O'Dell main: +353-1-896 1125 > Fellow & Senior Lecturer direct: +353-1-896 1178 > Director of Research mobile: +353-87-2021120 > School of Law main fax: +353-1-677 0449 > Trinity College blog: http://www.cearta.ie > Dublin 2 web: http://www.eoinodell.com > Ireland odelle@tcd.ie \ eoin.odell@tcd.ie > ------------------------------------------------------------------------ > All opinions are personal: no legal responsibility is accepted for this > email or attachments, which may be confidential or privileged or subject > to a Freedom of Information request: if you have received this in error, > let me know and delete it. Please think 'green' before printing. Thanks. > ======================================================================== > > ____________________________________________________________________ > 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, . > ____________________________________________________________________ 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, . ========================================================================= Date: Thu, 31 Jan 2008 09:54:15 -0000 Reply-To: James Lee Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: James Lee Subject: Re: Mistake and Voluntary Transfers In-Reply-To: A MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: quoted-printable Dear All, David raises a good point about the adoption of the mistake/misprediction distinction by the courts. As far as I am aware, English judicial consideration of Dextra has been limited to the change of position point. In Fashion Gossip Ltd v Esprit Telecoms UK Ltd & Ors [2000] EWCA Civ 233, 2000 WL 1480012, an appeal on summary judgment, Judge LJ cast some doubt on Birks' distinction: "Finally I should say that even if this can properly be described as a misprediction, the legal principles in Kleinwort Benson, as they are likely to develop, may one day result in the conclusion that Mr Randall's submissions should be regarded, in the words of Lord Hoffmann, as too "abstract" an approach to practical realities. That was certainly Goldring J's view and during my prereading for the hearing, I found myself in considerable sympathy with it." Of course, Judge LJ was offering his thoughts before Dextra (albeit after Kleinwort Benson). The Dextra distinction was also considered, not entirely favourably, by the Victorian case of Hookway v Racing Victoria Ltd and Victorian Amateur Turf Club [2005] VSCA 310. Best wishes, James -----Original Message----- From: Enrichment - Restitution & Unjust Enrichment Legal Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of David Lascelles Sent: 30 January 2008 23:01 To: ENRICHMENT@LISTS.MCGILL.CA Subject: Re: [RDG] Mistake and Voluntary Transfers Dear All, From reading James' email I had also wondered why this was not categorised as a misprediction as opposed to a mistake. =20 Although there is no mention of Dextra in Ogden nor any discussion (in terms) of mistakes and mispredictions, Lewison J does find that the transferor was suffering from cancer at the time of the transaction, was unaware of that and that "[t]he relevant mistake was a mistake about [his own] state of health." (para 24). As Lewison J holds, that can be characterised as a mistake about existing fact. Liability was established upon this (alternative) basis rather than in relation to the claimant's primary contention that the transferor had "mistakenly believed, at the times of the transfers, that there was a real chance that he would survive for seven years whereas in fact at that time his state of health was such that he had no real chance of surviving for that long" In line with the mistake/misprediction divide, Lewison J agreed with counsel that had the transferor "been a hale and hearty young man and had entered into all the relevant transactions but fallen under a bus the following week, his executors would not have been able to ask the court to set aside the transactions on the ground of a mistake. I think that is right. The operative mistake must... be a mistake which existed at the time when the transaction was entered into. The mere falsification of expectations entertained at the date of the transaction is not, in my judgment, enough." As far as I am aware the mistake/misprediction distinction to which reference was made in Dextra has not been expressly discussed by reference to Dextra in any English decision. I don't know whether any list members are aware of any such decision? Best, David David Lascelles Barrister Littleton Chambers, Temple -----Original Message----- From: Enrichment - Restitution & Unjust Enrichment Legal Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of Eoin O'Dell Sent: 30 January 2008 22:04 To: ENRICHMENT@LISTS.MCGILL.CA Subject: [Bulk] Re: [RDG] Mistake and Voluntary Transfers Hi all, Thanks James for bringing this interesting case to my attention. But isn't it a misprediction as to a future event (the time of his death)? If so, shouldn't it be outside the definition of mistake? Is that one of the points of Dextra Bank & Trust Co Ltd v Bank of Jamaica [2001] UKPC 50 (26 November 2001) (which doesn't seem to have been discussed by Lewison J). What am I missing here? Any guidance gratefully appreciated. Eoin. Quoting James Lee : > Dear All, > > Members may be interested to note the following recent (and short) case, > decided by Lewison J on mistake and voluntary transfers. The transferor > under a supposedly tax efficient scheme "mistakenly believed, at the > times of the transfers, that there was a real chance that he would > survive for seven years whereas in fact at that time his state of health > was such that he had no real chance of surviving for that long". The > transfer was set aside. > > Ogden & Anor v Trustees of the RHS Griffiths 2003 Settlement & Ors > [2008] EWHC 118 (Ch) (25 January 2008) > URL: http://www.bailii.org/ew/cases/EWHC/Ch/2008/118.html > > Best wishes, > > James Lee > > -- > James Lee > Teaching Fellow > School of Law > University of Reading > Foxhill House, rm. 2.09 > Whiteknights Road, Earley > Reading RG6 7BA > United Kingdom > > Phone: +44 (0) 118 378 5643 > Fax: +44 (0) 118 378 4543 > Email: j.s.lee@reading.ac.uk > Web: www.reading.ac.uk/law > > ____________________________________________________________________ > 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, . > > =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D = =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D = =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D Dr Eoin O'Dell main: +353-1-896 1125 Fellow & Senior Lecturer direct: +353-1-896 1178 Director of Research mobile: +353-87-2021120 School of Law main fax: +353-1-677 0449 Trinity College blog: http://www.cearta.ie Dublin 2 web: http://www.eoinodell.com Ireland odelle@tcd.ie \ eoin.odell@tcd.ie ------------------------------------------------------------------------ All opinions are personal: no legal responsibility is accepted for this email or attachments, which may be confidential or privileged or subject to a Freedom of Information request: if you have received this in error, let me know and delete it. Please think 'green' before printing. Thanks. =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D = =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D = =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D ____________________________________________________________________ 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, . ____________________________________________________________________ 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, . ____________________________________________________________________ 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, . ========================================================================= Date: Thu, 31 Jan 2008 10:10:21 +0000 Reply-To: Robert Stevens Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Robert Stevens Subject: Re: Mistake and Voluntary Transfers In-Reply-To: <1136.139.222.250.203.1201773106.squirrel@webmail.uea.ac.uk> MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1; format="flowed" Content-Disposition: inline Content-Transfer-Encoding: 7bit I don't find it difficult to find a mistake here. What I find difficult to do is to find an example of a 'pure' misprediction. Our predictions as to the future are based upon current facts. If my prediction is wrong, it will either always, or almost always, be the case that this is because one of the pieces of information I used to make that predicition is wrong (ie I am mistaken). So in Dextra Bank (http://www.worldlii.org/uk/cases/UKPC/2001/50.html) why could we not say that there was a mistake as to the intermediary's honesty, or a mistake as to BOJ's current intentions, or a mistake as to what BOJ was promising to do if the payment was made (and so on)? The mistake/misprediction line is elusive. The reason for drawing it given by Birks and accepted by Goff in Dextra (at [29]), that to "act on the basis of a prediction is to accept the risk of disappointment" has always struck me as unpersuasive. I predict that the sun will rise tomorrow morning. If I act on that basis today am I a risk-runner? I suppose Kleinwort Benson v Lincoln CC can be seen as a misprediction case, but that is because the law can change with retrospective effect. There, of course, recovery was allowed. R : > Lewison J does say later on > > "It is plain in my judgment that a mistake of fact is capable of bringing > the equitable jurisdiction into play. All that is required is a mistake of > a sufficiently serious nature. In my judgment a mistake about an existing > or pre-existing fact if sufficiently serious is enough to bring the > jurisdiction into play." at para 25 > > He clearly knows what a mistake is, I think. It seems to me that there are > two possibilities > 1. Eoin's misprediction about the time of his death > 2. A mistake as to the current state of his health - from which he deduces > time of death > > Number 2 counts - number 1 doesn't (or shouldn't). It's not easy to tell > the difference though > > Duncan > > >> Hi all,> >> Thanks James for bringing this interesting case to my attention. But isn't >> it a >> misprediction as to a future event (the time of his death)? If so, >> shouldn't it >> be outside the definition of mistake? Is that one of the points of Dextra >> Bank & >> Trust Co Ltd v Bank of Jamaica [2001] UKPC 50 (26 November 2001) >> (which doesn't seem to >> have >> been discussed by Lewison J). What am I missing here? Any guidance >> gratefully >> appreciated. >> >> Eoin. >> >> >> Quoting James Lee : >> >>> Dear All, >>> >>> Members may be interested to note the following recent (and short) case, >>> decided by Lewison J on mistake and voluntary transfers. The transferor >>> under a supposedly tax efficient scheme "mistakenly believed, at the >>> times of the transfers, that there was a real chance that he would >>> survive for seven years whereas in fact at that time his state of health >>> was such that he had no real chance of surviving for that long". The >>> transfer was set aside. >>> >>> Ogden & Anor v Trustees of the RHS Griffiths 2003 Settlement & Ors >>> [2008] EWHC 118 (Ch) (25 January 2008) >>> URL: http://www.bailii.org/ew/cases/EWHC/Ch/2008/118.html >>> >>> Best wishes, >>> >>> James Lee >>> >>> -- >>> James Lee >>> Teaching Fellow >>> School of Law >>> University of Reading >>> Foxhill House, rm. 2.09 >>> Whiteknights Road, Earley >>> Reading RG6 7BA >>> United Kingdom >>> >>> Phone: +44 (0) 118 378 5643 >>> Fax: +44 (0) 118 378 4543 >>> Email: j.s.lee@reading.ac.uk >>> Web: www.reading.ac.uk/law >>> >>> ____________________________________________________________________ >>> 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, . >>> >>> >> >> >> ======================================================================== >> Dr Eoin O'Dell main: +353-1-896 1125 >> Fellow & Senior Lecturer direct: +353-1-896 1178 >> Director of Research mobile: +353-87-2021120 >> School of Law main fax: +353-1-677 0449 >> Trinity College blog: http://www.cearta.ie >> Dublin 2 web: http://www.eoinodell.com >> Ireland odelle@tcd.ie \ eoin.odell@tcd.ie >> ------------------------------------------------------------------------ >> All opinions are personal: no legal responsibility is accepted for this >> email or attachments, which may be confidential or privileged or subject >> to a Freedom of Information request: if you have received this in error, >> let me know and delete it. Please think 'green' before printing. Thanks. >> ======================================================================== >> >> ____________________________________________________________________ >> 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, . >> > > ____________________________________________________________________ > 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, . > Robert Stevens Professor of Commercial Law University College London ____________________________________________________________________ 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, . ========================================================================= Date: Thu, 31 Jan 2008 10:11:23 -0600 Reply-To: Mark Gergen Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Mark Gergen Subject: Re: Mistake and Voluntary Transfers Comments: To: Robert Stevens In-Reply-To: A<20080131101021.t3hoyk0n40k8kg0c@www.webmail.ucl.ac.uk> MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----_=_NextPart_001_01C86423.EC4E22F6" This is a multi-part message in MIME format. ------_=_NextPart_001_01C86423.EC4E22F6 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable It is an interesting case. I agree with Robert Stevens that mistake and = misprediction are fuzzy categories. Most mispredictions can be = characterized as a mistake of some fact bearing on the misprediction. I = believe the essence of a mistake is that an actor could have determined = the falsity (or at least the potential inaccuracy) of her assumption = with little effort at the time of her action but failed to do so. An = error about one's health and life expectancy rarely will be a mistake by = this criterion. =20 But this may be beside the point. I am told by a colleague, Mark Ascher = (of Ascher & Scott on Trusts), that a US court might reform a trust or = bequest on these facts. Restatement Third, Property: Wills and Other = Donative Transfers =A7 12.2 gives courts a fair bit of discretion to = modify donative documents to achieve a donor's tax objectives. The = standard is preponderance of the evidence rather than the usual clear = and convincing evidence. Modification is not limited to mistake a fact, = as it nominally is when reformation is sought for non-tax reasons. For = example, a change in tax law may warrant modification. =20 One final point, under US tax law a reformation or modification for = mistake by a state court will not bind a federal court for purposes of = determining the federal tax consequences of the events. This is a check = against collusive revisions. I gather from Ogden that no party opposed = the motion before the court. ____________________________________________________________________ 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, . ------_=_NextPart_001_01C86423.EC4E22F6 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable

It is an interesting case.=A0 I agree with Robert Stevens that = mistake and misprediction are fuzzy categories.=A0 Most mispredictions can be characterized as a mistake of some fact bearing on the misprediction.=A0 = I believe the essence of a mistake is that an actor could have determined = the falsity (or at least the potential inaccuracy) of her assumption with little = effort at the time of her action but failed to do so.=A0 An error about one's = health and life expectancy rarely will be a mistake by this = criterion.

 

But this may be beside the point.=A0 I am told by a colleague, = Mark Ascher (of Ascher & Scott on = Trusts), that a US court might reform a trust or bequest on these facts. Restatement = Third, Property: Wills and Other Donative Transfers =A7 12.2 gives courts a = fair bit of discretion to modify donative documents to achieve a donor's tax = objectives.=A0 The standard is preponderance of the evidence rather than the usual = clear and convincing evidence.=A0 Modification is not limited to mistake a fact, = as it nominally is when reformation is sought for non-tax reasons.=A0 For = example, a change in tax law may warrant modification.

 

One final point, under US tax law a reformation or modification for mistake by a state court will = not bind a federal court for purposes of determining the federal tax = consequences of the events.=A0 This is a = check against collusive revisions.=A0 I gather from Ogden = that no party opposed the motion before the court.

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