Date: Tue, 4 Feb 1997 14:38:18 GMT To: restitution@maillist.ox.ac.uk From: eodell@tcd.ie (Eoin O' Dell) Subject: restitution Some random thoughts on Polly Peck Sender: owner-restitution@maillist.ox.ac.uk Reply-To: restitution@maillist.ox.ac.uk Status: RO The silence post-Polly Peck is almost as intriguing as the case itself. It is probably not so much that the case has not provoked debate as that the debate has proceeded off-list. In an attempt to pull some of it onto the list, can I pose the following issue. It is all off the top of my head, and probably wrong, so I would welcome the inevitable clarifications of the following analysis. In Polly Peck, Rattee J. held that (a) the claim was in respect of a trespass to the applicant's property from which the respondent derived a profit, (b) that it could be brought in London, (c) that there was an arguable case that damages in the restitution measure to strip the respondent of that profit, and, (d) that there was a further arguable case that such profits could be held on a restitutionary remedial constructive trust. Is this characterisation broadly correct ? Assuming it is, and granting (a) and (b), I want to focus on (c) and (d). My understanding of the area entitled restitution for wrongs (in particular, given that the case is about the tort of trespass, restitution for torts) is as follows: where, by the commission of a tort, D has been enriched at P's expense, P has three theoretical claims: (i) in tort, for damages in the compensation measure; (ii) in tort, for damages in the restitution measure; and (iii) in restitution, in autonomous unjust enrichment, (where an appropriate 'unjust' factor is available on the facts). It is clear that the first is a claim in tort, and the third is a claim in restitution. For me, it is equally clear that the second claim is a claim in tort, where the principle against unjust enrichment supplies a policy reason to extend the range of measures of damages available in tort to include restitution among the aims of tort damages, along with compensation, punishment (punitive / exemplary damages), and (occasionally) contempt (eg contemptuous damages of £1 for libel). Now, add the issue of a constructive trust to each of the above three claims. If a trust is imposed upon the defendant in claim (i), it is imposed in the context of a wrong to supply a further remedy for that wrong, it must be justified by the law relating to that wrong, and to that extent, it is a remedial constructive trust. If a trust is imposed upon the defendant in claim (iii), it is imposed to elevate a personal restitutionary claim into a proprietary one, and it must be justified for restitution reasons. If, however, it is imposed upon the defendant in claim (ii), and if I am right in my characterisation above that such a claim is a claim in tort, then a trust in such circumstances is imposed to supply a further remedy for that wrong, and must be justified by the law relating to that wrong: to that extent, it is a remedial constructive trust. Of course, to the extent that the principle against unjust enrichment supplies a policy reason to extend the range of measures of damages available in tort to include restitution among the aims of tort damages, it likewise provides here a policy reason to extend the range of reasons why a constructive trust can be imposed. The conclusion is that claim (ii) is a tort claim, and claim (iii) is a restitution claim; so that in in a claim (ii) situation, the claim is in tort, and the principle against unjust enrichment is only ever one policy among many which must be taken into account in tailoring the remedy (whether personal (damages) or proprietary (constructive trust)); whereas in a claim (iii) situation, the claim is in restitution, and the remedy (again whether personal (damages) or proprietary (constructive trust)) is imposed directly as a consquence of the principle against unjust enrichment. If that is correct, then, in proposition (c) above, when Rattee J accepted that there was a good arguable case for damages in the restitution measure for the tort of trespass, he accepted that this was a claim was in tort and not in restitution, that it is, in other words, a claim (ii) case and not a claim (iii) case. It follows then that the justificiation for the constructive trust (for which he accepted in proposition (d) that there was a good arguable case) must be justified by the law relating to that wrong. In other words, the aim of the trust is primarily remedial. Of course, on its pattern (stripping profits) the trust is also restitutionary, and to the extent that the principle against unjust enrichment supplies a policy reason to justify the imposition of a constructive trust as a remedy in such circumstances, it supports this remedial constructive trust. But it is nonetheless and for all that primarily remedial. All of this is by way of stating that when I first read the text of the judgment from the listserv (as supplied by Lionel Smith by way of Peter Birks, to both of whom much thanks) I was a little uneasy about Rattee J's language in the final third of his judgment when he spoke of why he thought there was a good arguable case in favour of a constructive trust. I thought then: hang on a minute, this is a restitution case, all the 'remedial' guff is muddying the analysis. Now, however, on the basis of the above reasoning, I think that Polly Peck is really a tort case, and the discussion of the constructive trust in terms of a remedial constructive trust is absolutely right. Running through the case is a recognition that restitution reasoning is somehow appropriate, and, on my view above, it is appropriate to the extent that it provides a policy justification for either a further measure of damages for the personal claim or the imposition of a remedial constructive trust, provided that sight is not lost of the fact that it is still a claim in tort and not in restitution. Any unease I now feel about the case is because Rattee J does not seem to keep sufficiently clear the distinction between a claim in tort with a remedy justified by restitution policy (claim (ii) above) which is what Polly Peck is, and a claim in restitution simpliciter (claim (iii) above) which is what Polly Peck is not. To the extent that, in his failure to keep these claims distinct, Rattee J sometimes speaks lanaguage more appropriate to claim (iii), I am now uneasy. But I generally welcome the thrust of his reasoning. What do others think of this ? Finally, (I can't resist this, sorry); for those of you in jurisdictions in which damages in the restitution measure for tort are a contested notion (the personal remedy for claim (ii) above), consider the decision of the Irish Supreme Court in Maher v.Collins [1975] I.R. 232, where the Court affirmed that the primary measure of damages in tort is the compensation measure, but continued that this "is not to say that there may not be exceptional and particular cases where the defendant's conduct has been calculated by him to make a profit for himself which may well exceed any compensation likely to be payable to the plaintiff. In such rare and exceptional circumstances other considerations may apply". ([1975] I.R. 232, 238 per O'Higgins C.J.). This, to my mind, is a dictum in favour of profit stripping in tort, and it is restitutionary just as much as it is in the contract area (cp Hickey v. Roches Stores [1993] R.L.R. 196). Best regards, Eoin. EOIN O'DELL Barrister, Lecturer in Law Email: EODELL@mail.tcd.ie Trinity College ph (+ 353 - 1) 608 1178 Dublin 2 fax (+ 353 - 1) 677 0449 Ireland Live Long and Prosper !! (All opinions are personal; no legal responsibility whatsoever is accepted.) Eunice and I were married on 27 December 1996 in the University Church, St. Stephen's Green, Dublin reception in the Liffey Valley House Hotel, Lexlip honeymoon in Istanbul, Turkey Date: Fri, 14 Feb 1997 19:27:30 +0000 (GMT) From: Nicola Shaw To: "rest.list" Subject: restitution Restitution for Wrongs Sender: owner-restitution@maillist.ox.ac.uk Reply-To: restitution@maillist.ox.ac.uk Status: RO The successful civil proceedings against OJ Simpson raise an interesting issue with regard to restitution for wrongdoing.Following his acquittal in the criminal trial, OJ has made significant profits from the sale of his book and from interviews on (primarily) the murder trial.If we accept a wider basis for giving restitution for torts and prima facie allow recovery for such a wrong, could the estates of the victims claim restitution for these profits? The unusual feature is that the profits are derived from his acquittal for a wrong which on a reduced standard of proof he was found liable for.Is there any theory of remoteness in restitution for wrongdoing which might exclude such recovery-ie.does the fact that the profits stem from a previous trial and acquittal on those facts sever the connection between them and the wrongdoing as established by the subsequent civil suit? Nicky Shaw, Pembroke College. X-Sender: lawf0014@sable.ox.ac.uk Date: Mon, 17 Feb 1997 15:37:26 +0000 To: restitution@maillist.ox.ac.uk From: lionel.smith@Law.oxford.ac.uk (Lionel Smith) Subject: restitution New judgment service Sender: owner-restitution@maillist.ox.ac.uk Reply-To: restitution@maillist.ox.ac.uk Greetings all, and welcome to new members. There is a new service called SCIB for Supreme Court International Bulletin. Subscribers get (by email) a weekly digest of that week's decisions of the US Supreme Court, the Supreme Court of Canada, the House of Lords, the High Court of Australia, the South African Constitutional Court and the Court of Justice of the European Communities. You can look at a sample issue on the Web at . You can subscribe via the Web at or by emailing with the word "subscribe" in the body of the email (nb you must send this email from the address you want to subscribe). This service is provided my the Australian criminal lawyer, Peter Faris QC. Lionel Smith St. Hugh's College Oxford, U.K. OX2 6LE Tel (0)1865 274 966; Fax (0)1865 274 912 lionel.smith@law.ox.ac.uk http://users.ox.ac.uk/~lawf0014/lionel.html (automatic archiving starts here) -- Received: (qmail 23244 invoked from network); 20 Feb 1997 11:25:00 -0000 Received: from oxmail4.ox.ac.uk (163.1.2.33) by jess.oucs.ox.ac.uk with SMTP; 20 Feb 1997 11:25:00 -0000 Received: from sable.ox.ac.uk by oxmail4 with SMTP (PP) with ESMTP; Thu, 20 Feb 1997 11:23:27 +0000 Received: from [192.76.27.40] (max40.public.ox.ac.uk [192.76.27.40]) by sable.ox.ac.uk (1.2/8.8.3) with SMTP id LAA30674 for ; Thu, 20 Feb 1997 11:24:48 GMT X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Thu, 20 Feb 1997 11:25:47 +0000 To: restitution@jess.oucs.ox.ac.uk From: lionel.smith@Law.oxford.ac.uk (Lionel Smith) Subject: Re: restitution Restitution for Wrongs Nicola Shaw wrote: >The successful civil proceedings against OJ Simpson raise an interesting >issue with regard to restitution for wrongdoing. Following his acquittal >in the criminal trial, OJ has made significant profits from the sale of >his book and from interviews on (primarily) the murder trial. If we accept a >wider basis for giving restitution for torts and prima facie allow >recovery for such a wrong, could the estates of the victims claim >restitution for these profits? > The unusual feature is that the profits are derived >from his acquittal for a wrong which on a reduced standard of proof he >was found liable for. Is there any theory of remoteness in restitution >for wrongdoing which might exclude such recovery-ie.does the fact that >the profits stem from a previous trial and acquittal on those facts sever >the connection between them and the wrongdoing as established by the >subsequent civil suit? I am sure there are remoteness limitations in restitution for wrongdoing, but I am not sure that they are of this sort. The tort having been proved, it seems to me that there could be a claim to the profits even if there had been a failed criminal prosecution. Remoteness and causation issues would be more along the lines of: causation: how much of the profit from the book derived from the writer's skill as opposed to the wrong? remoteness: what about the gains from a profitable investment made with the profits from the book? It is also interesting to speculate what would have happened if he *had* been convicted. In this particular case there would be statutory provisions covering the profits of crime which might or might not make provision for victims, as opposed to state confiscation. In the absence of such, are there two wrongs and hence two claimants for disgorgement of profits? How would we divide or apportion the gains? Lionel Smith St. Hugh's College Oxford, U.K. OX2 6LE Tel (0)1865 274 966; Fax (0)1865 274 912 lionel.smith@law.ox.ac.uk http://users.ox.ac.uk/~lawf0014/lionel.html Received: (qmail 26416 invoked from network); 20 Feb 1997 13:47:19 -0000 Received: from oxmail4.ox.ac.uk (163.1.2.33) by jess.oucs.ox.ac.uk with SMTP; 20 Feb 1997 13:47:19 -0000 Received: from sable.ox.ac.uk by oxmail4 with SMTP (PP) with ESMTP; Thu, 20 Feb 1997 13:45:43 +0000 Received: from [192.76.27.40] (max48.public.ox.ac.uk [192.76.27.48]) by sable.ox.ac.uk (1.2/8.8.3) with SMTP id NAA13655 for ; Thu, 20 Feb 1997 13:47:01 GMT X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Thu, 20 Feb 1997 13:47:59 +0000 To: restitution@maillist.ox.ac.uk From: lionel.smith@Law.oxford.ac.uk (Lionel Smith) Subject: Re: restitution Restitution for Wrongs Nicola Shaw wrote: >The successful civil proceedings against OJ Simpson raise an interesting >issue with regard to restitution for wrongdoing. Following his acquittal >in the criminal trial, OJ has made significant profits from the sale of >his book and from interviews on (primarily) the murder trial. If we accept a >wider basis for giving restitution for torts and prima facie allow >recovery for such a wrong, could the estates of the victims claim >restitution for these profits? > The unusual feature is that the profits are derived >from his acquittal for a wrong which on a reduced standard of proof he >was found liable for. Is there any theory of remoteness in restitution >for wrongdoing which might exclude such recovery-ie.does the fact that >the profits stem from a previous trial and acquittal on those facts sever >the connection between them and the wrongdoing as established by the >subsequent civil suit? I am sure there are remoteness limitations in restitution for wrongdoing, but I am not sure that they are of this sort. The tort having been proved, it seems to me that there could be a claim to the profits even if there had been a failed criminal prosecution. Remoteness and causation issues would be more along the lines of: causation: how much of the profit from the book derived from the writer's skill as opposed to the wrong? remoteness: what about the gains from a profitable investment made with the profits from the book? It is also interesting to speculate what would have happened if he *had* been convicted. In this particular case there would be statutory provisions covering the profits of crime which might or might not make provision for victims, as opposed to state confiscation. In the absence of such, are there two wrongs and hence two claimants for disgorgement of profits? How would we divide or apportion the gains? Lionel Smith St. Hugh's College Oxford, U.K. OX2 6LE Tel (0)1865 274 966; Fax (0)1865 274 912 lionel.smith@law.ox.ac.uk http://users.ox.ac.uk/~lawf0014/lionel.html Received: (qmail 28721 invoked from network); 20 Feb 1997 16:26:18 -0000 Received: from oxmail4.ox.ac.uk (163.1.2.33) by jess.oucs.ox.ac.uk with SMTP; 20 Feb 1997 16:26:18 -0000 Received: from sable.ox.ac.uk by oxmail4 with SMTP (PP) with ESMTP; Thu, 20 Feb 1997 16:24:40 +0000 Received: from [192.76.27.40] (max6.public.ox.ac.uk [192.76.27.6]) by sable.ox.ac.uk (1.2/8.8.3) with SMTP id QAA19215 for ; Thu, 20 Feb 1997 16:26:00 GMT X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Thu, 20 Feb 1997 16:26:58 +0000 To: restitution@maillist.ox.ac.uk From: lionel.smith@Law.oxford.ac.uk (Lionel Smith) Subject: Restitution for Wrongs Nicola Shaw wrote: >The successful civil proceedings against OJ Simpson raise an interesting >issue with regard to restitution for wrongdoing. Following his acquittal >in the criminal trial, OJ has made significant profits from the sale of >his book and from interviews on (primarily) the murder trial. If we accept a >wider basis for giving restitution for torts and prima facie allow >recovery for such a wrong, could the estates of the victims claim >restitution for these profits? > The unusual feature is that the profits are derived >from his acquittal for a wrong which on a reduced standard of proof he >was found liable for. Is there any theory of remoteness in restitution >for wrongdoing which might exclude such recovery-ie.does the fact that >the profits stem from a previous trial and acquittal on those facts sever >the connection between them and the wrongdoing as established by the >subsequent civil suit? I am sure there are remoteness limitations in restitution for wrongdoing, but I am not sure that they are of this sort. The tort having been proved, it seems to me that there could be a claim to the profits even if there had been a failed criminal prosecution. Remoteness and causation issues would be more along the lines of: causation: how much of the profit from the book derived from the writer's skill as opposed to the wrong? remoteness: what about the gains from a profitable investment made with the profits from the book? It is also interesting to speculate what would have happened if he *had* been convicted. In this particular case there would be statutory provisions covering the profits of crime which might or might not make provision for victims, as opposed to state confiscation. In the absence of such, are there two wrongs and hence two claimants for disgorgement of profits? How would we divide or apportion the gains? Lionel Smith St. Hugh's College Oxford, U.K. OX2 6LE Tel (0)1865 274 966; Fax (0)1865 274 912 lionel.smith@law.ox.ac.uk http://users.ox.ac.uk/~lawf0014/lionel.html Received: (qmail 28766 invoked from network); 20 Feb 1997 16:32:06 -0000 Received: from oxmail4.ox.ac.uk (163.1.2.33) by jess.oucs.ox.ac.uk with SMTP; 20 Feb 1997 16:32:06 -0000 Received: from sable.ox.ac.uk by oxmail4 with SMTP (PP) with ESMTP; Thu, 20 Feb 1997 16:30:38 +0000 Received: from [192.76.27.40] (max6.public.ox.ac.uk [192.76.27.6]) by sable.ox.ac.uk (1.2/8.8.3) with SMTP id QAA14416 for ; Thu, 20 Feb 1997 16:31:59 GMT X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Thu, 20 Feb 1997 16:32:56 +0000 To: restitution@maillist.ox.ac.uk From: lionel.smith@Law.oxford.ac.uk (Lionel Smith) Subject: Restitution for Wrongs Nicola Shaw wrote: >The successful civil proceedings against OJ Simpson raise an interesting >issue with regard to restitution for wrongdoing. Following his acquittal >in the criminal trial, OJ has made significant profits from the sale of >his book and from interviews on (primarily) the murder trial. If we accept a >wider basis for giving restitution for torts and prima facie allow >recovery for such a wrong, could the estates of the victims claim >restitution for these profits? > The unusual feature is that the profits are derived >from his acquittal for a wrong which on a reduced standard of proof he >was found liable for. Is there any theory of remoteness in restitution >for wrongdoing which might exclude such recovery-ie.does the fact that >the profits stem from a previous trial and acquittal on those facts sever >the connection between them and the wrongdoing as established by the >subsequent civil suit? I am sure there are remoteness limitations in restitution for wrongdoing, but I am not sure that they are of this sort. The tort having been proved, it seems to me that there could be a claim to the profits even if there had been a failed criminal prosecution. Remoteness and causation issues would be more along the lines of: causation: how much of the profit from the book derived from the writer's skill as opposed to the wrong? remoteness: what about the gains from a profitable investment made with the profits from the book? It is also interesting to speculate what would have happened if he *had* been convicted. In this particular case there would be statutory provisions covering the profits of crime which might or might not make provision for victims, as opposed to state confiscation. In the absence of such, are there two wrongs and hence two claimants for disgorgement of profits? How would we divide or apportion the gains? Lionel Smith St. Hugh's College Oxford, U.K. OX2 6LE Tel (0)1865 274 966; Fax (0)1865 274 912 lionel.smith@law.ox.ac.uk http://users.ox.ac.uk/~lawf0014/lionel.html Received: (qmail 28927 invoked from network); 20 Feb 1997 16:37:14 -0000 Received: from oxmail4.ox.ac.uk (163.1.2.33) by jess.oucs.ox.ac.uk with SMTP; 20 Feb 1997 16:37:14 -0000 Received: from sable.ox.ac.uk by oxmail4 with SMTP (PP) with ESMTP; Thu, 20 Feb 1997 16:35:38 +0000 Received: from [192.76.27.40] (max6.public.ox.ac.uk [192.76.27.6]) by sable.ox.ac.uk (1.2/8.8.3) with SMTP id QAA21690 for ; Thu, 20 Feb 1997 16:36:53 GMT X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Thu, 20 Feb 1997 16:37:52 +0000 To: restitution@maillist.ox.ac.uk From: lionel.smith@Law.oxford.ac.uk (Lionel Smith) Subject: Restitution for Wrongs Nicola Shaw wrote: >The successful civil proceedings against OJ Simpson raise an interesting >issue with regard to restitution for wrongdoing. Following his acquittal >in the criminal trial, OJ has made significant profits from the sale of >his book and from interviews on (primarily) the murder trial. If we accept a >wider basis for giving restitution for torts and prima facie allow >recovery for such a wrong, could the estates of the victims claim >restitution for these profits? > The unusual feature is that the profits are derived >from his acquittal for a wrong which on a reduced standard of proof he >was found liable for. Is there any theory of remoteness in restitution >for wrongdoing which might exclude such recovery-ie.does the fact that >the profits stem from a previous trial and acquittal on those facts sever >the connection between them and the wrongdoing as established by the >subsequent civil suit? I am sure there are remoteness limitations in restitution for wrongdoing, but I am not sure that they are of this sort. The tort having been proved, it seems to me that there could be a claim to the profits even if there had been a failed criminal prosecution. Remoteness and causation issues would be more along the lines of: causation: how much of the profit from the book derived from the writer's skill as opposed to the wrong? remoteness: what about the gains from a profitable investment made with the profits from the book? It is also interesting to speculate what would have happened if he *had* been convicted. In this particular case there would be statutory provisions covering the profits of crime which might or might not make provision for victims, as opposed to state confiscation. In the absence of such, are there two wrongs and hence two claimants for disgorgement of profits? How would we divide or apportion the gains? Lionel Smith St. Hugh's College Oxford, U.K. OX2 6LE Tel (0)1865 274 966; Fax (0)1865 274 912 lionel.smith@law.ox.ac.uk http://users.ox.ac.uk/~lawf0014/lionel.html Received: (qmail 30404 invoked from network); 20 Feb 1997 17:50:20 -0000 Received: from serv4.law.emory.edu (root@170.140.50.201) by jess.oucs.ox.ac.uk with SMTP; 20 Feb 1997 17:50:20 -0000 Received: from test1.law.emory.edu (law125.law.emory.edu [170.140.24.86]) by serv4.law.emory.edu with SMTP (8.7.1/8.7.1) id MAA20789 for ; Thu, 20 Feb 1997 12:48:52 -0500 (EST) Date: Thu, 20 Feb 1997 12:50:07 -0500 () From: Andrew Kull To: restitution@jess.oucs.ox.ac.uk Subject: Re: Restitution for Wrongs (OJ's Case) In-Reply-To: Message-ID: X-X-Sender: akull@law.emory.edu MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII As a note to anyone interested in pursuing this topic--that is, potential liability in restitution for business profits (such as book or film royalties) traceable to a crime such as murder--it may be worth mentioning the recent and significant (but abortive) statutory initiative in this direction in the US. New York, followed by perhaps 30 other states, enacted a statute designed to capture royalties that would otherwise be payable to authors of works based on or describing the authors' crimes: the funds would be held in trust by the state for the victims of the crimes in question, with a board of trustees authorized to pass on claims and make allocations ex aequo et bono. The statute was called the "Son of Sam Law," after a serial killer of that name who--as the legislature feared--was likely to sell a first-person account of his career to the tabloids for large sums. Readers of this list will see the obvious restitutionary implications of such a statute, more clearly even (I imagine) than did the NY legislature. All was cut short by the US Supreme Court, which threw out the entire scheme as an unconstitutional restraint on the freedom of the press. The Sup Ct opinion is very disappointing from a restitutionary point of view, since it is essentially oblivious to the private-law justifications of such a statute; but it is the most easily accessible source of information on the New York statute and the circumstances that gave rise to it. Simon & Schuster, Inc. v. New York State Crime Victims Board, 502 US 105 (1991). Andrew Kull akull@law.emory.edu Received: (qmail 8900 invoked from network); 21 Feb 1997 10:49:26 -0000 Received: from oxmail2.ox.ac.uk (163.1.2.1) by jess.oucs.ox.ac.uk with SMTP; 21 Feb 1997 10:49:26 -0000 Received: from sable.ox.ac.uk by oxmail2 with SMTP (PP) with ESMTP; Fri, 21 Feb 1997 10:49:17 +0000 Received: from [192.76.27.5] (max6.public.ox.ac.uk [192.76.27.6]) by sable.ox.ac.uk (1.2/8.8.3) with SMTP id KAA11540 for ; Fri, 21 Feb 1997 10:47:53 GMT X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Fri, 21 Feb 1997 10:48:52 +0000 To: restitution@maillist.ox.ac.uk From: lionel.smith@Law.oxford.ac.uk (Lionel Smith) Subject: Re: restitution Re: Restitution for Wrongs (OJ's Case) Further to Andrew Kull's comments, the Son of Sam statutes are discussed in D. Dobbs, Law of Remedies, 2 ed (West: St. Paul, 1993), at 690-1. Dobbs suggests that the USSC left open the possibility of the validity of a statute drafted more narrowly than the NY one under consideration. Apparently the Uniform Law Conference in Canada is considering proposing a statute along these lines for consideration by provincial legislatures. We too have a constitutional guarantee of freedom of expression, but in Canada our constitutional rights are somewhat more qualified than those of our neighbours to the south. In any event, I wonder whether OJ's biggest profit will not be made when he sells the house; that is a profit which might well be outside such a statute. Lionel Smith Received: (qmail 14457 invoked from network); 24 Feb 1997 09:32:13 -0000 Received: from oxmail4.ox.ac.uk (163.1.2.33) by jess.oucs.ox.ac.uk with SMTP; 24 Feb 1997 09:32:13 -0000 Received: from ermine.ox.ac.uk by oxmail4 with SMTP (PP) with ESMTP; Mon, 24 Feb 1997 09:30:37 +0000 Received: from pbirks.asc.ox.ac.uk (mayor.asc.ox.ac.uk [163.1.128.118]) by ermine.ox.ac.uk (1.1/8.8.3) with SMTP id JAA23975 for ; Mon, 24 Feb 1997 09:32:07 GMT Message-Id: <199702240932.JAA23975@ermine.ox.ac.uk> X-Sender: birks@ERMINE.OX.AC.UK Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Mon, 24 Feb 1997 10:34:08 +0000 To: restitution@maillist.ox.ac.uk From: birks@ermine.ox.ac.uk (Peter B.H. Birks) Subject: Re: restitution Re: Restitution for Wrongs (OJ's Case) X-Mailer: >As a note to anyone interested in pursuing this topic--that is, potential >liability in restitution for business profits (such as book or film >royalties) traceable to a crime such as murder--it may be worth mentioning >the recent and significant (but abortive) statutory initiative in >this direction in the US. New York, followed by perhaps 30 other states, >enacted a statute designed to capture royalties that would otherwise be >payable to authors of works based on or describing the authors' crimes: >the funds would be held in trust by the state for the victims of the >crimes in question, with a board of trustees authorized to pass on claims >and make allocations ex aequo et bono. The statute was called the "Son of >Sam Law," after a serial killer of that name who--as the legislature >feared--was likely to sell a first-person account of his career to the >tabloids for large sums. > >Readers of this list will see the obvious restitutionary implications of >such a statute, more clearly even (I imagine) than did the NY legislature. >All was cut short by the US Supreme Court, which threw out the entire >scheme as an unconstitutional restraint on the freedom of the press. The >Sup Ct opinion is very disappointing from a restitutionary point of view, >since it is essentially oblivious to the private-law justifications of >such a statute; but it is the most easily accessible source of information >on the New York statute and the circumstances that gave rise to it. Simon >& Schuster, Inc. v. New York State Crime Victims Board, 502 US 105 (1991). > >Andrew Kull >akull@law.emory.edu > > > > ********************************************************** Peter B.H.Birks Q.C., D.C.L., F.B.A., Regius Professor of Civil Law, University of Oxford Postal Address (College) All Souls Oxford OX1 4AL Telephone 44-(0)1865-279338 Fax 44-(0)1865-279299 Postal Address (Home) Oak Trees, Sandy Lane, Oxford OX1 5HN Telephone 44-(0)1865-735625 ************************************************************ Received: (qmail 15057 invoked from network); 25 Feb 1997 11:32:02 -0000 Received: from dira.bris.ac.uk (137.222.10.41) by jess.oucs.ox.ac.uk with SMTP; 25 Feb 1997 11:32:02 -0000 Received: from mail.bris.ac.uk by dira.bris.ac.uk with SMTP (PP); Tue, 25 Feb 1997 11:31:07 +0000 Received: from Vaduz.law.bris.ac.uk (vaduz.law.bris.ac.uk [137.222.84.87]) by mail.bris.ac.uk (8.8.5/8.7.3) with SMTP id LAA02464; Tue, 25 Feb 1997 11:23:15 GMT From: Laura Hoyano To: restitution@maillist.ox.ac.uk cc: restitution@maillist.ox.ac.uk Subject: Restitution for Wrongs (OJ's Case) Message-ID: Date: Tue, 25 Feb 1997 11:21:57 +0000 () Priority: NORMAL X-Mailer: Simeon for Win32 Version 4.0.7 X-Authentication: none MIME-Version: 1.0 Content-Type: TEXT/PLAIN; CHARSET=US-ASCII The query posed by Nicky Shaw reminded me of a Canadian action for unjust enrichment arising out of alleged financial benefits obtained by Clifford Olson, who was convicted of the murder of 11 children in British Colombia in 1982. Olson had struck a deal with the Royal Canadian Mounted Police that he would provide information about the location of the 11 bodies if the RCMP would pay Olson $100,000. The Attorney General authorised the payment on condition that it be paid into a trust fund for the benefit of Olson's wife and child, and that Olson himself would not benefit under any circumstances from the fund. The fund created enormous public controversy. In a transparent attempt to strip the Olson family of the trust fund, the parents of 7 of the victims obtained default judgment against Olson for damages under the Family Compensation Act, and then sought to execute on those judgments against the trust fund, arguing that it was impressed with a constructive trust for the benefit of the plaintiffs. Their argument ran that Olson's family was unjustly enriched when the fund was created. Clifford Olson benefited as a result of the unjust enrichment of his family, and as it was contrary to public policy to commit a criminal to benefit from his crime, the enrichment was unjust. This enrichment resulted in a corresponding deprivation of the plaintiffs, because their damages awards were a quantification of the losses inflicted by the criminal acts which led to the fund. The case was thus clearly predicated on unjust enrichment by subtraction. The plaintiffs succeeded at trial, but the British Columbia Court of Appeal reversed the order, in a judgment reported at [1986)3 Western Weekly Reports 403 sub nom. Rosenfeldt et al. v. Olson. The Court of Appeal relied on the absence of a corresponding deprivation. The evidence of the Attorney General was that the payment was not in respect of the children's deaths, but for information which would provide evidence to support convictions for their murders, and to resolve the parents' uncertainty as to whether or not their children were still alive. Accordingly, the payment to the trustee did not deprive the plaintiffs of money which otherwise would have been properly payable to the plaintiffs. It would seem that the divergence of opinion between the trial judge and the Court of Appeal turned on the event which triggered the plaintiffs' alleged deprivation--the death, or the creation of the trust fund. The whole argument was distorted by the implicit classification of the claim as being unjust enrichment by subtraction. Returning to the Simpson case, from a practical perspective, given that the receipt of the profits has served to swell the assets of the judgment debtor, there seems to be little point in following the restitutionary route unless and until the perpetrator continues to receive profits from his wrong in excess of his liability to the plaintiffs, and their judgments have been fully satisfied. Only then would the question whether the claim is more properly framed in unjust enrichment by wrongdoing or unjust enrichment by subtraction become a real issue. -- Laura C.H.Hoyano l.c.h.hoyano@bris.ac.uk Department of Law University of Bristol Wills Memorial Building Queens Road, Bristol BS8 1RJ tel. 0117-928-8979 fax 0117-925-1870 Received: (qmail 22526 invoked from network); 27 Feb 1997 09:51:33 -0000 Received: from oxmail4.ox.ac.uk (163.1.2.33) by jess.oucs.ox.ac.uk with SMTP; 27 Feb 1997 09:51:33 -0000 Received: from sable.ox.ac.uk by oxmail4 with SMTP (PP) with ESMTP; Thu, 27 Feb 1997 09:51:24 +0000 Received: from [192.76.27.31] (max20.public.ox.ac.uk [192.76.27.20]) by sable.ox.ac.uk (1.2/8.8.3) with SMTP id JAA29851 for ; Thu, 27 Feb 1997 09:51:04 GMT X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Thu, 27 Feb 1997 09:52:01 +0000 To: restitution@maillist.ox.ac.uk From: lionel.smith@Law.oxford.ac.uk (Lionel Smith) Subject: Knowing Assistance Greetings to all, and welcome to new members. There is a case note at [1996] Conv. 447 by John Stevens on Brinks Ltd. v. Abu-Saleh (No. 3), an unreported ChD case on knowing assistance. Issue: where a woman accompanies her husband (along with the kids) on trips from England to Switzerland, where he is involved in laundering the proceeds of an armed robbery, is she "assisting" for the purposes of knowing assistance? Answer: no. Obiter issue: does she have the requisite dishonesty where she thought the trips were some kind of tax scam and did not know anything about the robbery or the laundering? Answer: semble, no. Lionel Smith Received: (qmail 22610 invoked from network); 27 Feb 1997 09:55:12 -0000 Received: from oxmail4.ox.ac.uk (163.1.2.33) by jess.oucs.ox.ac.uk with SMTP; 27 Feb 1997 09:55:12 -0000 Received: from sable.ox.ac.uk by oxmail4 with SMTP (PP) with ESMTP; Thu, 27 Feb 1997 09:54:56 +0000 Received: from [192.76.27.31] (max20.public.ox.ac.uk [192.76.27.20]) by sable.ox.ac.uk (1.2/8.8.3) with SMTP id JAA17352 for ; Thu, 27 Feb 1997 09:54:50 GMT X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Thu, 27 Feb 1997 09:55:49 +0000 To: restitution@maillist.ox.ac.uk From: lionel.smith@Law.oxford.ac.uk (Lionel Smith) Subject: Knowing Assistance Greetings to all, and welcome to new members. There is a case note at [1996] Conv. 447 by John Stevens on Brinks Ltd. v. Abu-Saleh (No. 3), an unreported ChD case on knowing assistance. Issue: where a woman accompanies her husband (along with the kids) on trips from England to Switzerland, where he is involved in laundering the proceeds of an armed robbery, is she "assisting" for the purposes of knowing assistance? Answer: no. Obiter issue: does she have the requisite dishonesty where she thought the trips were some kind of tax scam and did not know anything about the robbery or the laundering? Answer: semble, no. Lionel Smith Received: (qmail 32106 invoked from network); 27 Feb 1997 15:09:22 -0000 Received: from taurus.cus.cam.ac.uk (cusexim@131.111.8.48) by jess.oucs.ox.ac.uk with SMTP; 27 Feb 1997 15:09:22 -0000 Received: from ghj1000 by taurus.cus.cam.ac.uk with smtp (Exim 1.60 #2) id 0w07SR-0001Ty-00; Thu, 27 Feb 1997 15:09:19 +0000 Date: Thu, 27 Feb 1997 15:09:18 +0000 (GMT) From: "Prof. G.H. Jones" To: restitution@maillist.ox.ac.uk Subject: Re: restitution Knowing Assistance In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Lionel, I have the transcript. Would you like it? Gareth On Thu, 27 Feb 1997, Lionel Smith wrote: > Greetings to all, and welcome to new members. > > There is a case note at [1996] Conv. 447 by John Stevens on Brinks Ltd. v. > Abu-Saleh (No. 3), an unreported ChD case on knowing assistance. > > Issue: where a woman accompanies her husband (along with the kids) on trips > from England to Switzerland, where he is involved in laundering the > proceeds of an armed robbery, is she "assisting" for the purposes of > knowing assistance? Answer: no. > > Obiter issue: does she have the requisite dishonesty where she thought the > trips were some kind of tax scam and did not know anything about the > robbery or the laundering? Answer: semble, no. > > Lionel Smith > > > Received: (qmail 17236 invoked from network); 28 Feb 1997 09:32:33 -0000 Received: from oxmail4.ox.ac.uk (163.1.2.33) by jess.oucs.ox.ac.uk with SMTP; 28 Feb 1997 09:32:33 -0000 Received: from sable.ox.ac.uk by oxmail4 with SMTP (PP) with ESMTP; Fri, 28 Feb 1997 09:32:29 +0000 Received: from [192.76.27.31] (max31.public.ox.ac.uk [192.76.27.31]) by sable.ox.ac.uk (1.2/8.8.3) with SMTP id JAA07379 for ; Fri, 28 Feb 1997 09:32:24 GMT X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Fri, 28 Feb 1997 09:33:21 +0000 To: restitution@maillist.ox.ac.uk From: lionel.smith@Law.oxford.ac.uk (Lionel Smith) Subject: RRR(2d) Greetings, The new Restitution Research Resource (2d) has just appeared, a supplement to [1996] Restitution Law Review. Subscribers get a copy automatically. The RLR web site is at . Lionel