Category: Restitution

Tory Island and Unjust Enrichment – a sad story ends not with a bang but a whimper

BaidinWhen I was in school, I learned a song in Irish called Báidin Fheilimí. It’s about Phelim’s boat, sailing to islands off Donegal, in the north-west of Ireland. In the first verse, it sails to Gola Island; in the second, it sails to Tory Island; and, in the third, the lively little boat is wrecked on the rocks off Tory. The song left a romantic image of Tory in my mind. Neville Presho probably had a similar image; but, like Phelim’s boat, it has been wrecked on Tory rocks. He had a holiday home on the island. Until, one day, he returned to the island, and found that the house was gone, replaced by car park for an adjacent hotel. I have, on this blog, been following his action against the hotel (see here, here, here, here). In Presho v Doohan [2009] IEHC 619 (17 July 2009), Murphy J held that the appropriate remedy lay not in reinstatement of the demolished house “but in the provision of a comparable dwelling on Tory Island or the open market value of a comparable dwelling on the island”. He later held that this amounted to €46,000. The story has resulted in a book and tv documentary. Now, from the Irish Independent, I learn both that the matter was appealed by both parties, and that the various appeals have been discontinued:

Filmmaker’s Supreme Court appeal over home that ‘disappeared’ is dismissed

The Supreme Court has struck out an appeal over a €46,000 valuation placed on a man’s Tory Island holiday home that “disappeared” while he was abroad over a number of years. … After he won in the High Court in 2009, both defendants brought appeals against that court’s ruling.

When the matter came before the Supreme Court yesterday, it heard Mr Doohan, who was not in court, had stated he was not proceeding with his appeal. The appeal by Ostán Thoraigh Comhlacht Teoranta had been withdrawn last November. In those circumstances, the court struck out Mr Doohan’s appeal and affirmed the High Court orders. …

The Irish Times has a similar report. An earlier stage of the appeal was dismissed last November (see here, here, and here). And so ends a very sad tale, not with a bang but with hardly a whimper.

Stand and deliver, your money or your wife! Of Georgian highwaymen, modern sham marriages, illegal contracts, and abuse of the legal process

James Freney

James Freney (1719–1788)

an Irish contemporary of Everet and Williams; the so-called
Noblest Highwayman in Ireland

Two sole traders form a partnership, and then fall out, so that one sues the other for outstanding monies. It is a common enough story now, and was even in the early 1700s. There is normally little of general interest in such case; but, in 1725, the additional facts in Everet v Williams earned it a notoriety that persists to this day, because the plaintiff had sued the defendant for the proceeds of highway robbery, and there had been a classic falling out amongst thieves. Unsurprisingly, the Court declined to lend its aid to the claim, and dismissed the case with costs (see Everet v Williams (1725) reported (1787) 2 European Magazine 360 (pdf) and (1893) 9 Law Quarterly Review 197 (pdf); see also William David Evans (ed) Pothier on Obligations (Strahan, London, 1802, vol 2) 3 (pdf); Nathaniel Lindley A Treatise on the Law of Partnership (1st ed, Johnson & Co, London, 1860) 161 (pdf); Robert Megarry Miscellany-at-Law (Sweet & Maxwell, London, 1955) 76 (pdf); mentalfloss).

The Court’s approach in this case was replicated by Twomey J in English v O’Driscoll [2016] IEHC 584 (25 October 2016), whilst the case itself was cited by Humphreys J in the High Court in KP v The Minister for Justice and Equality [2017] IEHC 95 (20 February 2017). In this short post, I want to mention the outcome in Everet v Williams, note its subsequent judicial citation, and refer briefly to the recent judgments of Humphreys and Twomey JJ.

In Everet v Williams, the Court referred the matter to the wonderfully-titled Deputy Remembrancer of the Court of Exchequer in Equity. His report that the case was a matter of “scandal and impertinence” was confirmed by the Court; the parties solicitors were attached for contempt and fined £50 each for reflecting so disreputably “upon the honour and dignity” of the Court; and the lawyer who drafted the plaintiff’s proceedings was ordered to bear the costs of the action for causing such “indignity to the Court”. But the parties did not learn their lesson; and they continued – separately – to ply their trade, until their luck eventually ran out: John Everet, the plaintiff, was executed at Tyburn in 1730; and Joseph Williams, the defendant, was executed at Maidstone in 1727 – by not hanging together, they were hanged separately, proving Benjamin Franklin’s aphorism half a century before he uttered it!

Moreover, in 1735, the almost equally colourful William Wreathock, the plaintiff’s solicitor, was convicted of conspiracy and robbery, and sentenced to be hanged. However, his sentence was commuted to transportation, though he eventually obtained a Royal Pardon, returned to England, and resumed his practice; nevertheless, he was struck off the roll of attorneys in 1758 (see Malcolm McKenzie Park “William Wreathcock – Imperfect Attorney” (1993) 87 Victorian Bar News 73 (SSRN)).

The case has had a strong pull on the legal imagination down the ages. (more…)

The Future of the Law of Restitution for Unjust Enrichment in Ireland

Euro notes = Irish flag (notes via https://en.wikipedia.org/wiki/Euro_banknotes)The Private Law Discussion Group in the School of Law, Trinity College Dublin, is delighted to welcome Dr Niamh Connolly (University College London) next Thursday, 30 March 2017, at 2:00pm, in the Trinity Research in Social Sciences (TRiSS) Seminar Room, 6th floor, Arts Building, TCD (map), to give a paper on


The Future of Restitution in Ireland.

All are welcome, particularly those with a research interest in private law, unjust enrichment and restitution. This event is open to the public and free of charge. If you would like to attend, please register on Eventbrite.

Niamh Connolly (via UCL website)Dr Niamh Connolly (pictured right) is a lecturer at University College London, where she moved from Trinity College Dublin in 2016. Her principal research and teaching interest is in unjust enrichment law. She is interested in how Irish private law compares to that of England and Wales, and in differences in legal culture that affect the substantive law in these jurisdictions. Her paper will seek to interpret the sparse Irish case law on unjust enrichment in light of this wider question about the specificity of Irish law. In particular, Niamh will ask whether Irish legal culture is less formalist than that of England and Wales, and if so, how that affects Irish restitution law. Niamh hopes that the seminar will provide an opportunity to hear the views of other Irish jurists as to the possible distinctiveness of Irish judicial approaches in private law.

The Private Law Discussion Group is a Research Group in the School of Law, Trinity College Dublin, which invites collaboration and engagement nationally and internationally on private law, including property law, tort, contract, restitution, and unjust enrichment.

You can’t keep the proceeds of a bank error in your favour; and, if you do, you probably won’t be able to get out of jail free – updated

Get Out of Jail Free cardIn the board-game Monopoly, one of the cards that you can get by landing on ‘Chance’ is ‘Get out of jail free‘. If you are sent to jail during the game, you can use the card to ‘escape’ immediately, without having to cool your heels for the three turns otherwise mandated by the rules. It is as about a useful guide for life as the its fellow Monopoly ‘Community Chest’ card, which tells you that you can keep the proceeds of a bank error in your favour. Unfortunately, you can’t; and spending it is straightforward theft, as is well illustrated by a story in today’s Irish Independent:

Jail for ‘flabbergasted’ teen who succumbed to temptation after €20k was mistakenly lodged in his account

Karl Smith was due €200

A teenager who had “an incredible temptation presented to him” two days after his 19th birthday when his former employer mistakenly lodged almost €20,000 into account has been jailed for theft. …

Judge Melanie Greally sentenced Smith to four years in prison with the final two years suspended.

There is more on this case here, here, here and here. This is not the only time this kind of thing has happened, though it certainly seems to be the most unlucky defendant. (more…)

The Global Futures of Unjust Enrichment, 21-22 April 2017

Goff&JonesA conference on the theme of the Global Futures of Unjust Enrichment will be held on Friday 21 April 2017 and Saturday 22 April 2017 in the UCL Gustave Tuck Theatre, Wilkins Building, Gower Street, London WC1 (map here).

The Bentham House Conference 2017 celebrates the publication of the 50th anniversary edition of Goff & Jones: The Law of Unjust Enrichment, and honours the memory of the book’s first authors, Lord Goff of Chieveley and Professor Gareth Jones, who both died in 2016. The conference brings together leading scholars from around the world to consider the future of unjust enrichment in overseas jurisdictions, and to discuss current problems and controversies in English law.

The emergence of the law of unjust enrichment as a distinct part of the law of obligations was the most important and radical development in English private law of the last hundred years. Academic writing played a significant role in this development, and most significant of all was Robert Goff and Gareth Jones’s seminal work on the topic in 1966. The speakers paying tribute to Goff and Jones are a veritable who’s-who of contemporary private law. On Friday 21 April 2017, they will discuss the future trajectory of the law of unjust enrichment in overseas jurisdictions; and on Saturday 22 April 2017, they will consider a series of important issues which have been thrown up by the English case law over the past decade, and which will require significant further attention from the courts.

The conference has been convened by Professor Charles Mitchell (UCL), Professor Paul Mitchell (UCL) and Dr Stephen Watterson (Cambridge). More information about the conference, including the draft conference programme, speaker biographies, and booking, is available here.

Overpayments by ATMs and theft from banks

Money from an ATM, via flickrIn June 2012, a massive IT failure affected all of Ulster Bank’s ATMs, and many customers sought to take advantage by making multiple withdrawals of cash which they did not have in their accounts. As I have commented many times on this blog, in the case of overactive ATMs, overpayments, and theft, a bank error in your favour is not a gift from God; an overactive ATM is not santa, and the scrooge bank will have to be repaid; bank errors are not a licence to gamble; and keeping the proceeds of a bank error in your favour can amount to theft.

However, in a recent prosecution of a man who managed to withdraw €13,600 from Ulster Bank ATMs during the IT failure, the judge dismissed the case as the prosecution failed to prove Ulster Bank did not consent to the withdrawals, and the State had failed to prove the bank existed. The defendant was charged with 23 counts of stealing cash, the property of “Ulster Bank Ireland Ltd”, and whilst there was evidence of various entities associated with Ulster Bank, the judge held that there was no documentary proof of a properly incorporated legal entity called “Ulster Bank Ireland Ltd” put before the jury, and he therefore directed the jury to acquit the defendant.

The defendant was not the only person in this boat. The bank investigated 100s of cases around the systems fault, around 30 customers were reported to Gardaí, and there already have been successful prosecutions. This directed acquittal will be an one-off; I expect that the proofs in future prosecutions will be more than sufficient.

Postdoctoral Research Fellowship: Comparative Unjust Enrichment, Paul-André Crépeau Centre for Private and Comparative Law, Faculty of Law, McGill University

Publications of the Crépeau Centre

I am delighted to post this on behalf of Professor Lionel Smith:

McGill University – Faculty of Law
Paul-André Crépeau Centre for Private and Comparative Law
Postdoctoral Research Fellowship: Comparative Unjust Enrichment

The Paul-André Crépeau Centre for Private and Comparative Law intends to appoint a Postdoctoral Research Fellow with effect from August 2016 or other agreed date. The position is funded by an Insight Grant from the Social Sciences and Humanities Research Council of Canada. The principal investigator is Professor Lionel Smith, researcher at the Crépeau Centre, and the team is composed of colleagues from McGill’s Faculty of Law and beyond. The position is for one year, with the possibility of renewal for a second year.

ABOUT THE PAUL-ANDRÉ CRÉPEAU CENTRE FOR PRIVATE AND COMPARATIVE LAW
Based at McGill University in Montreal (Quebec, Canada) the Crépeau Centre is the only research centre in Canada devoted to research in fundamental private law. Quebec’s private law is civilian, but it evolves in a North American environment that is otherwise largely grounded in the common law. Quebec’s private law therefore provides a living model for the fruitful coexistence of two legal traditions, in which the ongoing interaction of the common law and the civil law is combined with the interaction of French and English in Quebec’s bilingual civil law.

ABOUT THE RESEARCH PROJECT
The research agenda to which the position relates has two objectives: (a) to find solutions to identified uncertainties in the Canadian law of unjust enrichment, through an interdisciplinary and comparative methodology; and (b) through this study of the law of unjust enrichment, to articulate an approach to private law that could be fruitfully applied in other fields of private law. This approach will be inspired by the bijural and bilingual approach to teaching law at McGill’s Faculty of Law.

QUALIFICATIONS AND EXPECTATIONS
The applicant must hold a doctoral degree in law at the time of the appointment, or be on the point of completing one. The ideal candidate will have a solid track record of research in private and comparative law, and will propose an interesting research project that interacts with the research agenda summarized above. The candidate must be fluent in either English or French. Facility in more than one language and/or legal system would be an advantage. The position will include a salary of C$40,000 per year, and a work station and computer will be provided.

The successful candidate will pursue his or her own research project on a subject related to the research project outlined above. He or she will also assist in the activities of the Crépeau Centre, principally through involvement in the organization of academic events on comparative unjust enrichment. He or she will also take a leading role in the publication of papers arising from these events, and may also be invited to speak at one or more of them.

APPLICATION PROCEDURE
The review of applications will begin on 17 June 2016. The preferred starting date is August 2016. Applications are to be submitted electronically to , and questions about the position can be sent to the same address. Applicants should submit a covering letter, a curriculum vitae, a research proposal (maximum four pages), a transcript of postgraduate studies, and one or more writing samples (from peer-reviewed publications if possible). Applicants should also name two referees, who may subsequently be invited to send letters of reference.

(more…)

After a challenge to ObamaCare, will there be Restitution to the Executive in the US?

Seal of the US House of Representatives, via WikipediaIn US House of Representatives v Burwell (pdf), US District Judge Rosemary M Collyer has today upheld the challenge of the House of Representatives to a portion of the Patient Protection and Affordable Care Act (ObamaCare), ruling that the government had wrongly spent billions of dollars in the past two years to reimburse insurance companies for providing health coverage at lower costs to low and moderate income consumers. There is no mention in the judgment about the recovery of the unauthorised reimbursements, but the case plainly raises that question, which I have been discussing in a series of posts (I, II, III, IV, V, & V(a)) on this blog. There is another post to come in the series, and an addendum – but the implications on Burwell are too big to postpone.

The judge set up the issue in this way:

This case involves two sections of the Affordable Care Act: 1401 and 1402. Section 1401 provides tax credits to make insurance premiums more affordable, while Section 1402 reduces deductibles, co-pays, and other means of “cost sharing” by insurers. Section 1401 was funded by adding it to a preexisting list of permanently-appropriated tax credits and refunds. Section 1402 was not added to that list. The question is whether Section 1402 can nonetheless be funded through the same, permanent appropriation. It cannot.

She said this about appropriation:

Authorization and appropriation by Congress are nonnegotiable prerequisites to government spending: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law …” … [US Constitution] art. I, § 9, cl. 7; see also United States v MacCollom 426 US 317, 321 (1976) (“The established rule is that the expenditure of public funds is proper only when authorized by Congress, not that public funds may be expended unless prohibited by Congress.”). …

Appropriation legislation “provides legal authority for federal agencies to incur obligations and to make payments out of the Treasury for specified purposes.” … Appropriations legislation has “the limited and specific purpose of providing funds for authorized programs.” … An appropriation must be expressly stated; it cannot be inferred or implied. 31 U.S.C. § 1301(d) (“A law may be construed to make an appropriation out of the Treasury . . . only if the law specifically states that an appropriation is made.”). It is well established that “a direction to pay without a designation of the source of funds is not an appropriation.” … The inverse is also true: the designation of a source, without a specific direction to pay, is not an appropriation. … Both are required. An appropriation act, “like any other statute, [must be] passed by both Houses of Congress and either signed by the President or enacted over apresidential veto.”

Appropriations come in many forms. A “permanent” or “continuing” appropriation, once enacted, makes funds available indefinitely for their specified purpose; no further action by Congress is needed. … A “current appropriation,” by contrast, allows an agency to obligate funds only in the year or years for which they are appropriated. … Current appropriations often give a particular agency, program, or function its spending cap and thus constrain what that agency, program, or function may do in the relevant year(s). Most current appropriations are adopted on an annual basis and must be re-authorized for each fiscal year. Such appropriations are an integral part of our constitutional checks and balances, insofar as they tie the Executive Branch to the Legislative Branch via purse strings.

And she concluded:

Paying out Section 1402 reimbursements without an appropriation thus violates the Constitution. Congress authorized reduced cost sharing but did not appropriate monies for it, in the FY 2014 budget or since. Congress is the only source for such an appropriation, and no public money can be spent without one. See U.S. Constitution, Art. I, § 9, cl. 7 …

The Court will grant summary judgment to the House of Representatives and enter judgment in its favor. The Court will also enjoin any further reimbursements under Section 1402 until a valid appropriation is in place. However, the Court will stay its injunction pending any appeal by the parties. A memorializing Order accompanies this Opinion.

There will undoubtedly be an appeal, so there is a long way to go before we have a clear resolution of the issue. But if the final resolution is similar to the present judgment, the question of the recovery of the unauthorised reimbursements will have to be faced – no doubt, I will have to add to my series of posts on the Restitution to the Executive and the recovery of unauthorised State payments by considering whether US provides for a claim to restitution of unjust enrichment, because the recipients of the unauthorised payment have been unjustly enriched at the expense of the State.