cearta.ie – the Irish for rights

Introduction
The recent decision of the Court of Appeal for England and Wales in Gray v Global Energy Horizons Corporation [2020] EWCA Civ 1668 (09 December 2020) has prompted me to reflect, briefly, on the role of policy in the law of restitution for unjust enrichment. In this post, I will consider that role in the context of the structure such claims restitution for unjust enrichment that the Irish and UK courts broadly apply.

In the case concerning The Bricklayers’ Hall, Keane J predicated the obligation to make restitution for unjust enrichment upon four “essential preconditions”: whether there was (i) an enrichment to the defendant (ii) at the expense of the plaintiff, (iii) in circumstances in which the law will require restitution, (iv) where there is no reason why restitution will be withheld (see Dublin Corporation v Building and Allied Trade Union [1996] 2 IR 468, 483; [1996] 2 ILRM 547, 558 (html) (Keane J; Hamilton CJ, O’Flaherty, Blayney and Barrington JJ concurring); see footnote).

Questions of policy overtly arise on the second and fourth of these four essential preconditions, and they will be discussed in the next two sections of this post.

Reflection 1
The second essential precondition of a claim to restitution for unjust enrichment – whether there are circumstances in which the law will require restitution – essentially focuses upon the question of whether a cause of action has been made out.…

The Zong, In Our Time

29 November, 202030 November, 2020

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| The Zong

Beginning on 29 November 1781, at least 132 slaves were thrown overboard from the slave-ship The Zong (replica, pictured left) into the seas off Jamaica. In Gregson v Gilbert (1783) 3 Doug 232, 99 ER 629, [1783] EngR 85 (22 May 1783) (pdf)) the owners argued that this had been done to preserve drinking water for the crew, and they sought to recover the value of the slaves from their insurers. It is voyage 84106 on the Trans-Atlantic Slave Trade Database. An excellent account of the circumstances is provided by Trevor Burnard “A New Look at the Zong Case of 1783” (2019) 76 XVII-XVIII [En ligne].

This infamous massacre featured on last Thursday’s episode of In Our Time on BBC Radio 4 (podcast via BBC Sounds | Apple | Spotify). Vincent Brown (Harvard University), Bronwen Everill (University of Cambridge), and Jake Subryan Richards (London School of Economics), joined long-time host Melvyn Bragg in a powerful hour or so of difficult but necessary listening.

In previous posts on this blog, I have looked at the case through the lens of Simon Schama’s history Rough Crossings, William Turner’s painting The Slave Ship, and M.…

The truth, pure and simple, as a defence to defamation claims after Depp v NGN

3 November, 20208 November, 2020

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| Defamation, Defamation, Defamation Act 2009

Johnny Depp, Amber Heard, Sun masthead, all pix via wikipedia The truth, as Oscar Wilde has Algernon Moncrieff remark to Jack Worthing in Act I of The Importance of Being Ernest, is rarely pure and never simple. Nowhere is this more evident than in a defamation courtroom. At common law, the defence of justification to a claim for defamation averred that the words complained of, in their natural and ordinary meaning, were true in substance and in fact. For example, in Irving v Penguin Books Ltd [2000] EWHC QB 115 (11 April 2000), American historian Deborah Lipstadt estabished that holocaust-denier David Irving had deliberately distorted evidence relating to the Holocaust, and thus successfully relied on the defence of justification to defeat Irving’s claim of defamation. In Ireland, the common law has been replaced by section 16(1) of the Defamation Act 2009 (also here), which provides that the defence of truth is made out where the defendant proves “that the statement in respect of which the action was brought is true in all material respects”. In England, the equivalent statutory provision is much more straightforward: section 2(1) of the Defamation Act 2013 provides that it “is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true”.…

Still kicking the can on defamation reform after four years

1 November, 20201 November, 2020

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| 2016-17 Reform, Defamation

Today is the fourth anniversary of the commencement of the Department of Justice’s current review of Ireland’s defamation laws. Earlier this week, a newspaper leader and a blogpost provided updates on where we are on our slow boat to defamation reform. The Defamation Act, 2009 (also here) passed all stages in the Oireachtas on 9 July 2009; it was signed into law by the President on 23 July 2009; and it – eventually – entered into force on 1 January 2010. Section 5 of the Act provides that the Minister for Justice had to commence a review of its application within 5 years after the passing of the Act, and had to complete that review within a year. 2014 and 2015 came and went, and no review had commended by 9 July 2014, 23 July 2014, or 1 January 2015. Eventually, four years ago today, on 1 November 2016, the Department of Justice commenced a review of the Act, and launched a consultation process to inform the review. The submissions are available here (my thoughts are here). Having started a few years late, it was too much to hope that it would be completed within a year.…

Defamation, the Galapagos Islands Division of the law of torts

9 October, 2020

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| Defamation

Discussing themes in the law of Tort in (2007) 81 Australian Law Journal 609, 615 (via StuDoc), Mr Justice David Ipp (pictured left), then a judge of the Supreme Court of Western Australia and later a judge of the Court of Appeal of New South Wales, described the law of defamation as “the Galapagos Islands Division of the law of torts”:

The tort of defamation has evolved all on its own and has created legal forms and practices unknown anywhere else. It has evolved its own dialect and adopted esoteric customs. It thrives, for example, on distinctions between inferences upon inferences, on the one hand, and inferences upon implications on the other, and between contextual and common or garden imputations. Defamation law is devoted to jury decisions even though this devotion causes delay and additional costs and the role of the jury keeps changing. Pleadings in defamation actions are as complex, as pedantic and as technical as anything known to Dickens. Interlocutory disputes continue to beset plaintiffs and there are often massive delays in getting defamation cases to trial. Damages seem out of proportion to damages awards in other categories of cases.

The words are certainly true of Ireland now, even if they may have been “hyperbole” which gave “insufficient credit to the landmark uniform defamation laws” then recently enacted in Australia (Hemming (2009) 11 University of Notre Dame Australia Law Review 84 (pdf).…

Ar dheis Dé go raibh a h-anam dilís

19 September, 2020

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| judges, US Supreme Court

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Striking the balance of the constitutional protections of free speech and good name in Irish defamation cases

14 September, 20207 November, 2020

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| Defamation, Freedom of Expression, Freedom of Expression

1. Balancing competing rights
Irish defamation cases are increasingly replete with comments stating the need to balance the constitutional right to freedom of expression with the constitutional right to a good name. Article 40.6.1(i) of the Constitution protects “right of the citizens to express freely their convictions and opinions”; whilst Article 40.3.2 provides that the “State shall … by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the … good name … of every citizen”. Recent cases citing these rights together include Watson v Campos [2016] IEHC 18 (14 January 2016) [28] (Barrett J); Rooney v Shell E&P Ireland [2017] IEHC 63 (20 January 2017) [31]-[32] (Ní Raifeartaigh J); Ryanair v Channel 4 Television [2017] IEHC 651 (05 October 2017) [49]-[52] (Meenan J).

The language of balancing of competing constitutional rights is longstanding and widespread, in Ireland and elsewhere; and it is deployed in these cases to foreclose an a priori outcome where one right is automatically favoured over the other. Irish constitutional law does indeed subscribe to a hierarchy of rights in some cases (see, eg, People (DPP) v Shaw [1982] IR 1, 63 (Kenny J)); but that is usually unprincipled and largely unworkable (see, eg, Attorney General v X [1992] 1 IR 1, [1992] IESC 1 (5 March 1992) [138]-[139] (McCarthy J), [184] (Egan J); Sunday Newspapers Ltd v Gilchrist and Rogers [2017] IESC 18 (23 March 2017) [36] (O’Donnell J) (Denham CJ, Clarke, MacMenamin and Dunne JJ concurring)); [update] it has been rejected where freedom of expression has been balanced against the right to a fair trial (DPP v Independent News and Media plc [2017] IECA 333 (21 December 2017) [13]-[14] (Edwards J) (Finlay-Geoghegan J concurring) (applying Gilchrist)) [/update]; and it has not been deployed at all in defamation cases when freedom of expression competes with the right to a good name.…

Finders are not keepers. If money is just resting in your account, and even if you have no idea how it got there, you can’t keep it – you have to make restitution of the mistaken payment or run the risk of prosecution for theft

12 June, 202016 September, 2020

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| Mistaken payments, Restitution

In the classic comedy television series Father Ted (Channel 4 | IMDB), the title character, Fr Ted Crilly (pictured left, as portrayed by actor Dermot Morgan) often claimed “That money was just resting in my account!”. We learn early in the first series that Ted was exiled to Craggy Island for stealing money intended to send a child to Lourdes and using it for a trip to Las Vegas (S1E3). In various subsequent episodes (S1E6; S2E4; S2E6; S3E8) he claims that the money was just resting in his account. I was reminded of this by an article (sub req’d) by Fiona Ferguson currently on the front page of Courts News Ireland:

Man claimed he ‘found’ €17k of fraud cash in his bank account

A Malawian man charged with money laundering who told gardai that he found €17,000 in his bank account when checking to see if his wages had been paid has avoided a jail term.

John Carlos (32) used some of the money to pay his college fees before transferring €12,000 to a savings account. He then contacted the bank to alert them to the €17,000 and the transfer he had made.

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