cearta.ie – the Irish for rights

A short note on the quantification of enrichment in HKR Middle East Architects Engineering LC v English

28 July, 2021

In two previous posts (here and here), I have looked at issues arising out of McDonald J’s judgments in HKR Middle East Architects Engineering LC v English (No 1) [2019] IEHC 306 (10 May 2019); (No 2) [2021] IEHC 142 (3 March 2021); (No 3) [2021] IEHC 376 (31 May 2021). In HKR v English (No 1) McDonald J held that English had been unjustly enriched at the expense of HKRME. However, he valued that enrichment, not as the full US$8,094,873 ultimately paid to English, but as limited to the (probably substantially smaller) amount of HKRME’s unpaid and lawful liabilities. And he directed that an account should be taken of those liabilities. In both HKR v English (No 2) and HKR v English (No 2), McDonald J affirmed this conclusion.

In my first post, I pointed out that a cause of action for restitution of unjust enrichment is complete when the payment is made by the plaintiff and received by the defendant, so that the defendant’s enrichment is the amount paid by the plaintiff. This is because, where the enrichment is the payment of money, complex questions seldom arise (Dublin Corporation v Building and Allied Trade Union (the Bricklayers’ Hall case) [1996] 2 IR 468, 483; [1996] 2 ILRM 547, 558 (Keane J; Hamilton CJ, O’Flaherty, Blayney and Barrington JJ concurring); Test Claimants in the Franked Investment Income Group Litigation v Revenue and Customs (No 3) [2021] UKSC 31 (23 July 2021) [FII (No 3)] [170] (Lords Reed and Hodge (in a joint judgment; Lords Briggs, Sales and Hamblen concurring)).…

Who will come first, Godot, or an Irish Minister for Justice bearing defamation reform?

20 July, 202120 July, 2021

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| 2016-17 Reform, Defamation

Two years ago, the EU established the European Rule of Law Mechanism as a process of dialogue on rule of law issues between the EU institutions, the Member States, and civil society. 2020 saw the first of the annual reports. One of the issues highlighted in the report for Ireland related to the long-stalled process of defamation reform. In the intervening year, nothing has happened on the issue (understandably: there’s been a pandemic). However. it does feature in the Department of Justice Action Plan for this year, so the Commission, regarding the glass as half-full, has chosen to accept that at face value, and to welcome the prospect of reform before the end of the year:

… Amendments to the Defamation Act, foreseen for adoption in the coming months, are expected to have a positive impact on the operation of journalists. … Following the announcement of the plans to revise the 2009 Defamation Act¹¹¹, the Irish Government is finalising a statutory review. A new Scheme of Defamation could be presented by the end of 2021. As highlighted by stakeholders¹¹², the current regime enables to impose a disproportionately high amount of damages for defamation, which can have a negative impact on journalistic freedom.

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Over 100 International IP Academics Sign An Open Academic Letter in Support of the TRIPS Waiver

13 July, 202113 July, 2021

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| Intellectual property

Over 100 international IP academics have supported an open academic statement co-authored by Dr Hyo Yoon Kang (Kent Law School), Dr Siva Thambisetty (London School of Economics), Dr Aisling Macmahon (Maynooth), Dr Luke McDonagh (London School of Economics) and Prof Graham Dutfield (Leeds) which provides academic justification and support for the TRIPS Waiver proposal that is currently being negotiated at the World Trade Organisation.

The Irish signatories include Prof Susi Geiger (University College Dublin), Dr Cliona Kelly (University College Dublin), and myself.

From the page announcing the letter:

The letter calls on the governments of the United Kingdom of Great Britain and Northern Ireland, Australia, Brazil, Japan, Norway, Switzerland and the European Union to drop their opposition to the TRIPS Waiver proposal at the World Trade Organisation and to support the waiver.

The letter states that the TRIPS waiver is a necessary and proportionate legal measure towards the clearing of existing intellectual property barriers in order to scale up of production of COVID-19 vaccines and therapeutics. It provides concise legal, political and moral justifications for the need for the Waiver as an integral part of a multi-pronged approach that must also include: global co-ordination of supply chains; streamlining regulatory approval processes and sharing exclusive data from regulatory dossiers; and investment in the WHO’s C-TAP and the mRNA technology transfer hub in South Africa.

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Was there an automatic resulting trust HKR Middle East Architects Engineering LC v English?

21 June, 202121 June, 2021

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| Restitution, Trusts

In my previous post, I discussed the unjust enrichment claim that was at least partially successful in in HKR Middle East Architects Engineering LC v English (No 1) [2019] IEHC 306 (10 May 2019); (No 2) [2021] IEHC 142 (3 March 2021); (No 3) [2021] IEHC 376 (31 May 2021). In this post, I want briefly to discuss a trust point that was not taken in the case that may have availed HKRME. In HKR v English (No 3) [2}, McDonald J recorded that, in the first stage of the case, HKRME claimed

… that the monies transferred from HKRME to the BVI entity [Sunvit] were held on trust for the children of Mr Ryan under a trust known as the Ryan Children’s Trust (“the RCT”). For reasons which are explained in the principal judgment, I came to the conclusion that, at least insofar as it purported to relate to the monies transferred to the BVI entity, the alleged trust was a sham and that the intended beneficiary of the transfers (subject to the unpaid liabilities of HKRME) was not any such trust but was instead Mr Ryan himself who had put the relevant arrangements in place with a view to concealing assets from his creditors.

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Unjust enrichment by failure of consideration: HKR Middle East Architects Engineering LC v English

17 June, 202127 July, 2021

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| Restitution

The Abu Dhabi Plaza (pictured left), in Nur-Sultan (formerly Astana), the capital city of Kazakhstan, is the highest building in Kazakhstan and Central Asia. It was designed by HKR Middle East (HKRME) Architects in the United Arab Emirates, whose principal was Dublin architect Jeremiah Ryan. To keep his UAE receipts beyond the reach of his Dublin creditors, between April 2012 and March 2013, Ryan directed HKRME to pay US$8,094,873 to Sunvit, an entity in the British Virgin Islands controlled by the defendant, Barry English, a Director of one of Ireland’s leading engineering companies. While the monies were notionally received by Sunvit, McDonald J held that English was in fact the real beneficiary, and that Sunvit was no more than a vehicle to receive funds on his behalf. HKRME sued English for the return of the monies. In a series of judgments, in HKR Middle East Architects Engineering LC v English (No 1) [2019] IEHC 306 (10 May 2019); (No 2) [2021] IEHC 142 (3 March 2021); (No 3) [2021] IEHC 376 (31 May 2021), HKRME’s claims in trust, contract, and breach of UEA law, failed. However, McDonald J held that the consideration for the payments to Sunvit had failed, such that the defendant had been unjustly enriched at the plaintiff’s expense.…

Happy Bloomsday 2021!

16 June, 202116 June, 2021

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| General

0. Prolegomenon, or Why me?
Today is Bloomsday, the centrepiece of a five-day festival in Dublin and online celebrating the day in 1904 on which the events of James Joyce’s novel Ulysses unfold, which is the day Joyce first formally went out with Nora Barnacle. Their story is brilliantly told in the best book I’ve read this year, Nuala O’Connor‘s Nora: A Love Story of Nora Barnacle and James Joyce (New Island Books, 2021).

Several years ago, I wrote a post about Bloomsday for a blawg carnival called Blawg Review; sadly, the review is now defunct; but I thought I might revisit and update the post. Just like Oh Brother, Where art Thou?, the novel loosely parallels Homer’s Odyssey, and the original blogpost very very loosely paralleled Joyce’s Ulysses (or at least his chapter headings), to introduce some interesting contemporary legal stories. I will keep the sub-Joycean introductions, to introduce some current legal stories, and I have fixed broken links in the text that I have retained.…

The non-implementation of the DSM Directive, and the Cathach of St Columba – updated!

9 June, 202111 June, 2021

| 1 Comment

| Columba, Copyright

The EU Directive on Copyright in the Digital Single Market (the DSM Directive) was due to be transposed into national law by the EU’s Member States this week. Article 29(1) of the DSM Directive (Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC) provides:

Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 7 June 2021. …

That was last Monday. Had it been Tuesday, it would have been an appropriate date for a copyright Directive to be brought into force in Ireland, as that was the anniversary of the death of St Columba (also known as St Colmcille) in 597 (I have marked this anniversary on a previous occasion on this blog). As Charleton J commented in EMI Records v Eircom Ltd [2010] 4 IR 349, [2010] IEHC 108 (16 April 2010) [28]:

There is fundamental right to copyright in Irish Law. This has existed as part of Irish legal tradition since the time of Saint Colmcille. He is often quoted in connection with the aphorism: le gach bó a buinín agus le gach leabhar a chóip (to each cow its calf and to every book its copy).

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