Category: Restitution

UCD refuses to refund €1.6m paid ‘unlawfully’ to staff – The Irish Times – Thu, Jan 20, 2011

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| General, Restitution, Universities

UCD IS refusing to refund €1.6 million paid in “unlawful” allowances to senior academic staff despite pressure from the Department of Education, the Department of Finance and the Higher Education Authority (HEA).

It is understood UCD president Dr Hugh Brady has warned the HEA that any attempt to impose a financial sanction on the university may be “illegal, inappropriate and discriminatory”.

A major standoff has now developed between the two sides, despite months of negotiations between the HEA and UCD vice-president Dr Philip Nolan on the issue.

via irishtimes.com

The issue is not straightforward. For example, Prof Steve Hedley (UCC) has argued:

The issue of overpayments to university staff has yet to be resolved. The truth is that neither side is on very firm ground, and if ever the matter were to be litigated, it would almost certainly be necessary to look at each alleged over-payment separately. … The key provision is the Universities Act, 1997, s 25(4), which reads in part:

… there shall be paid by a university to the employees of that university, such remuneration, fees, allowances and expenses as may be approved from time to time by the Minister [for Education and Skills] with the consent of the Minister for Finance.

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Airlines make €285m on ‘no shows’ | Irish Examiner

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| General, Restitution

IRELAND’S two leading airlines are making over €285 million clear profit per annum by holding on to taxes and charges paid by passengers who fail to show up for flights. The operators of a new service to assist Irish air travellers to reclaim refunds of taxes, fees and charges (TFCs), claim Ryanair and Aer Lingus are engaging in “unfair practice” over their handling of the issue. The company, Airtaxrefund.com, said it had dealt with passengers of over 500 flights since its service was launched last October. A survey of such claims indicated Aer Lingus owes an average refund of taxes, fees and charges of €40 per passenger and Ryanair an average refund of €35 per passenger. … The National Consumer Agency has also warned airlines that it is considering a High Court challenge to compel them to refund TFCs to passengers who cancel flights. …

via examiner.ie

If the NCA does take the claim, it has a very good chance of success. See my posts Can you recover taxes and charges from airlines when you don’t travel? (16 Nov 2010); What are websites for? (9 March 2008); Airlines are facing legal challenge over refunds (30 October 2007); Refunding unincurred airport taxes and charges (26 March 2007).

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Santa, Scrooge, and overactive ATMs

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| Irish Society, Mistaken payments, Restitution

Scrooge and Santa graphic novel coverYesterday, as Scrooge announced a take-away budget, Santa produced give-away bank machines. Bank of Ireland experienced “an unforeseen technical issue” with its computers. This meant that some of its customers were able to make ATM withdrawals of amounts greater than their available funds or credit. However, the bank said that all money withdrawn by customers in excess of their balances yesterday will have to be repaid, and that ATMs are working normally now.

The bank’s first port of call to enforce their repayments will be the terms and conditions of the contracts they have with their customers. For example, clause 3.2 and clause 10 of the Terms & Conditions relating to Personal Current Accounts in the Standard Current Account Terms & Conditions (PDF) allow the bank to recover unauthorised overdrafts incurred “without the bank’s prior written agreement”; and clause 2.9 of the Terms and Conditions of Use relating to ATM Cards and Laser Cards in the same Standard Terms and Conditions permits the bank to restore an account to the state it would have been in had “an incorrectly executed transation not taken place”. However, reliance on these terms and conditions may be displaced if the term is unfair having regard to the European Communities (Unfair Terms in Consumer Contracts) Regulations, 1995 (SI No 27 of 1995), or if a strict interpretation of the relevant terms excluded their applicability (for example, the argument might run that the terms and conditions apply to the ordinary running of the account and not to these kinds of extraordinary circumstances where the bank simply allowed the transactions to go ahead with the risk that some customers at least would not have the relevant available funds).…

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Can you recover taxes and charges from airlines when you don’t travel?

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| Airline charges, Consumer, Contract, Restitution

Small palm tree, via Steve Hedley's restitution siteYes, you can. If you book to travel with an airline, and pay their fee plus government taxes and airport charges, but if you then don’t travel, so that the taxes are not due and the charges are not incurred, you are entitled to recover those taxes and charges from the airline. If the contract between you and the airline contains a clause either making them irrecoverable or imposing disproportionately high administration fees to recover them, that clause is unenforceable (on foot of the European Communities (Unfair Terms in Consumer Contracts) Regulations, 1995 (SI No 27 of 1995). I have already discussed this matter here, here, and here. Those posts discuss the ongoing campaign by the National Consumer Agency against airlines which refuse to refund such taxes and charges, or which impose disproportionately high administration fees when non-travelling passengers seek to recover them. In the Irish Times recently, Ciarán Hancock reported on the next stage of that campaign:

Airlines retain €28m in taxes and charges on unfilled flight seats

The National Consumer Agency (NCA) is seeking to clip the wings of Irish airlines who pocket taxes and airport charges paid by passengers who do not travel on flights they have booked.

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Have older people in private nursing homes received a fair deal from the State?

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| Restitution

Ombudsman logoThe Ombudsman yesterday published Who Cares? An Investigation into the Right to Nursing Home Care in Ireland. The gist of the Report is that the State is failing in its legal obligations to older people in need of nursing home care. Moreover, the Ombudsman was sharply critical of the refusal of the Government and State agencies to co-operate with her inquiry. However, in today’s Irish Times, the Minister for Health Mary Harney strongly rejected that criticism, saying the Attorney General had advised the that the Ombudsman was overstepping her mandate. On the other hand, an opposition spokesperson said the Report showed that the Government had failed older people, and Report has been very warmly welcomed by Age Action (a charity which promotes positive ageing and better policies and services for older people in Ireland):

Age Action is anxious that there is clarity about the eligibility and entitlements of older people, and that the rights of older people are protected … It is therefore timely that the Ombudsman’s investigation is published.

“It’s déjà vu all over again“. We have been here before. From 1976 to 2004, the State had invalidly charged many older people for care in public nursing homes.…

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Littlewoods questions

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| Restitution

LittlewoodsThe Littlewoods Ireland website proudly proclaims that it is Ireland’s leading online store. Since 1923, Littlewoods ran a mail- and phone-order catalogue sales business; and it is now the brand name of a successful internet retail sales company. Littlewoods are also the plaintiffs in an interesting case involving restitution of overpaid taxes. In Littlewoods Retail Ltd v HM Revenue and Customs [2010] EWHC 1071 (Ch) (19 May 2010), 15 claimants within the Littlewoods group of companies claimed compound interest amounting more than £1 billion on overpayments of VAT between 1973 and 2004. Subject to the outcome of a reference to the Court of Justice of the European Union (CJEU), their claim failed. In [2010] EWHC 2771 (Ch) (04 November 2010) Vos J has now decided on the questions to be referred to the CJEU. …

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Grading and marking, updates

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| Andrew Croskery, Grading and Marking, Litigation, Restitution, Universities

Graded Paper, viaFirst, to my posts on grading and marking, I must add a wonderful post by not that kind of doctor applying the Elisabeth Kübler-Ross model of five stages of grief – denial, anger, bargaining, depression, acceptance – to the process of grading papers! Wonderful (h/t efdel).

Second, in another grading and marking story, this time by way of comparison with my posts on Andrew Croskery‘s case against QUB, consider the case of a student who sued the University of Pennsylvania for awarding him a degree from their engineering college rather than Wharton School of Business: his misrepresentation and unjust enrichment claims failed.

Third, in one of my posts on the Croskery litigation, I analysed a similar recent case in the Ontario Court of Appeal: Jaffer v York University 2010 ONCA 654 (7 October 2010). There’s an interesting post on the case on the Canadian blog, The Court, This Student Isn’t Just a Number:

(1) Universities: Now, Not-So-Independent Centres of Learning
Perhaps the most interesting and relevant aspect of this case concerns the Court’s finding that academic disputes grounded in contract or tort can be heard by the Superior Court of Justice in Ontario.

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Subrogation, shipping, and unjust enrichment

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| Restitution, Subrogation

Cheltenham & Gloucester storefront 2007In an earlier post, I discussed the subrogation claim in Bell Lines v Waterford Multiport Ltd [2006] IEHC 188 (28 April 2006) (Dunne J) rvsd [2010] IESC 15 (18 March 2010). My basic point was that subrogation arises for all sorts of reasons. As Lord Diplock put it in Orakpo v Manson Investments [1978] AC 95, followed in this respect by Neuberger LJ in Cheltenham & Gloucester Plc v Appleyard [2004] EWCA Civ 291 (15 March 2004) [32], it “embraces more than a single concept”. Apart from the insurance context where it is largely a matter of contract, several reasons have been proferred to explain when subrogation arises by operation of law.

For example, (i) it can reverse unjust enrichment; (ii) it arises on “well settled established principles and in defined circumstances”; (iii) it will be applied when “reason and justice” demand that it should be; (iv) it reflects the presumed or actual intention of the parties; and (v) it is all simply a matter of discretion. It is unlikely that a single over over-arching theory will explain the whole field. Instead, subrogation is a rather protean doctrine, founded upon many different principles. As a consequence, it is likely that unjust enrichment is simply the theoretical foundation of one facet of the doctrine of subrogation rather than for the whole ambit of the doctrine.…

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