Comments on: Subrogation and unjust enrichment – hunting the snark http://www.cearta.ie/2009/10/subrogation-and-unjust-enrichment-hunting-the-snark/ the Irish for rights Sun, 05 Feb 2012 01:43:36 +0000 http://wordpress.org/?v=2.8.4 hourly 1 By: cearta.ie » The Hunting of the Snark http://www.cearta.ie/2009/10/subrogation-and-unjust-enrichment-hunting-the-snark/comment-page-1/#comment-16352 cearta.ie » The Hunting of the Snark Thu, 06 Jan 2011 19:06:14 +0000 http://www.cearta.ie/?p=4244#comment-16352 [...] I have observed on this blog in the past, The Hunting of the Snark is a nonsense poem written by Lewis Carroll, which describes “with [...] [...] I have observed on this blog in the past, The Hunting of the Snark is a nonsense poem written by Lewis Carroll, which describes “with [...]

]]> By: cearta.ie » Shipping and subrogation http://www.cearta.ie/2009/10/subrogation-and-unjust-enrichment-hunting-the-snark/comment-page-1/#comment-13833 cearta.ie » Shipping and subrogation Wed, 13 Oct 2010 06:15:48 +0000 http://www.cearta.ie/?p=4244#comment-13833 [...] took different approaches to the relationship of unjust enrichment and subrogation (see my previous posts). These cases demonstrate that there are several possible approaches to the doctrine of [...] [...] took different approaches to the relationship of unjust enrichment and subrogation (see my previous posts). These cases demonstrate that there are several possible approaches to the doctrine of [...]

]]> By: Legal Eagle http://www.cearta.ie/2009/10/subrogation-and-unjust-enrichment-hunting-the-snark/comment-page-1/#comment-10957 Legal Eagle Tue, 20 Oct 2009 22:13:43 +0000 http://www.cearta.ie/?p=4244#comment-10957 I'm not a restitution zealot - I do think that it has been held up as the solution to some private law problems when it isn't. Thus I take the High Court's point that it doesn't actually solve anything in a subrogation context. Why bother if it doesn't make the solution easier? On the other hand, the constructive trust analysis is deeply unsatisfactory. I'm surprised that they didn't use that passage by Millett LJ which you excerpt above - that would be the <i>perfect</i> explanation. What annoys me about the Australian High Court is that according to them, there is no action in unjust enrichment - you have to institute an action for money had and received or a quantum meruit or whatever. I fail to see why we should be bound by these ancient, idiosyncratic forms of action. I think much of the Australian judicial negativity about unjust enrichment comes from badly pleaded cases. There was a time when litigants would just stick, "The defendant's conduct was unconscionable" at the end of a pleading without particulars as a kind of sloppy "catch-all". Now "the defendant has been unjustly enriched" has replaced this as a catch-all. But this does not mean we should throw out unjust enrichment altogether. It means we should educate lawyers on how to plead it. And yes, I did snark back at the High Court - their tone got my goat! :-P I’m not a restitution zealot – I do think that it has been held up as the solution to some private law problems when it isn’t. Thus I take the High Court’s point that it doesn’t actually solve anything in a subrogation context. Why bother if it doesn’t make the solution easier?

On the other hand, the constructive trust analysis is deeply unsatisfactory. I’m surprised that they didn’t use that passage by Millett LJ which you excerpt above – that would be the perfect explanation.

What annoys me about the Australian High Court is that according to them, there is no action in unjust enrichment – you have to institute an action for money had and received or a quantum meruit or whatever. I fail to see why we should be bound by these ancient, idiosyncratic forms of action.

I think much of the Australian judicial negativity about unjust enrichment comes from badly pleaded cases. There was a time when litigants would just stick, “The defendant’s conduct was unconscionable” at the end of a pleading without particulars as a kind of sloppy “catch-all”. Now “the defendant has been unjustly enriched” has replaced this as a catch-all. But this does not mean we should throw out unjust enrichment altogether. It means we should educate lawyers on how to plead it.

And yes, I did snark back at the High Court – their tone got my goat! :-P

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