Category: Restitution

The liability of rescuers

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| Irish Law, Irish Society, Restitution

Courtoons cartoon.The Law Reform Commission last night (pdf) launched its new Report on The Civil Liability of Good Samaritans and Volunteers (pdf), following up on its November 2007 Consultation Paper (pdf) on the issue.

The Common Law does not recognise a duty to attempt a rescue, even where the rescue would be relatively easy, and the Commission recommended against imposing one by statute. However, where a rescuer feels compelled to attempt a rescue, the Commission’s recommendations cover the duty of care owed by rescuers to those being rescued. …

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It’s not Smart, it’s unjust enrichment

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| Restitution

Smart Telecom logo, via their site.From today’s Irish Times comes news of a pending claim for restitution of unjust enrichment:

Former Smart Telecom CEO sued for sum of €1.16m

SMART YUROE Broadband (SYB) and related companies have sued former Smart Telecom chief executive Oisin Fanning for more than €1.1 million over alleged unjust enrichment during his time as chief executive.

SYB, Switchcom Ltd and Smart Telecom Holdings Ltd claim Mr Fanning received some €1.16 million in sums allegedly due to the companies for their use while he was chief executive of Smart from September 2004 to September 2006. …

The action against Mr Fanning is the latest of several sets of proceedings involving the company, Mr Fanning and others to come before the Commercial Court following the October 2006 buyout of Smart by SYB, a company controlled by businessman Brendan Murtagh.Mr Justice Peter Kelly yesterday made orders consolidating all the actions and fixed a hearing date for November 3rd next. The proceedings are expected to run for more than four weeks. …

Read more here…

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Tory Island and Unjust Enrichment

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| Restitution, Tory Island

PreshoTory Island is a small island of striking natural beauty off the northwest coast of Co Donegal. So, film-maker Neville Presho must have thought himself a lucky man to have a holiday home there. Until, one day, he returned to the island, and found that the house was gone, replaced by car park for an adjacent hotel (Irish Emigrant | Irish Independent | Irish Times | Kerryman | RTE | Soft Irish Rain). In an ongoing High Court action [an important preliminary stage is here], Mr Presho’s claim against the hotel in respect of the demolition of the house failed, but Mr Justice Murphy suggested that there may be a restitution claim for the hotel’s use of the site as a car park. Tim Healy’s story in yesterday’s Irish Independent explains the restitution claim:

Hotelier in car park row faces order over damages

Holiday home ‘vanished’ while owner was absent

A Tory Island hotelier who built a car park on the remains of a 150-year-old holiday home which burnt down may have to pay damages to its former owner. A High Court judge who is presiding over a legal row over a holiday home which allegedly “disappeared” and became a car park for an adjoining hotel yesterday said the case may be dealt with on the basis of unjust enrichment by the hotel.

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Rescue from the runaway truck

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| Restitution

Postman Pat's truck, via the Postman Pat websiteSuppose you see a runaway truck, and seek to stop its progress before it does real damage – what legal claims arise? In an earlier post, I referred to two of the possible claims: first, if you stop it from injuring others, but are yourself injured in the process, you can sue the tortfeasor who released the truck in the first place. Second, if you are negligent in the process, you might yourself be liable in negligence to anyone you injure. But there is a third; if your rescue confers a benefit upon someone, such as the owner of the truck, then you might have an action in restitution for unjust enrichment against the owner of the truck.

This all sounds like a classic exam question, but it has recently happened. Yesterday’s Times has an interesting story raising all of these issues:

Robert Moore snubbed by Royal Mail after he stopped runaway post van

The Royal Mail is being accused of ingratitude after criticising a man who stopped a 2-tonne runaway post van from careering over a busy main road. Robert Moore, 63, an artist, cracked a rib and injured a knee as he tried to stop the Transit van rolling down a hill when the driver forgot to apply the handbrake.

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Services and overpayments

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| Contract, Restitution

Elecref logo, via their siteThe English Court of Appeal recently considered two interesting issues in Furmans Electrical Contractors v Elecref Ltd [2009] EWCA Civ 170 (10 March 2009). Furmans were subcontractors installing electrical cabling on jobs on which Elecref were electrical contractors. In early September 2007, a dispute arose as to the basis on which Furmans were remunerated; in particular, Elecref claimed that they had been overcharged. In early October, Elecref made one further payment on foot of an invoice from Furmans, but thereafter declined to make any further payments on foot of invoices covering various periods from August to October. Furmans sued to recover those amounts, and Elecref counterclaimed for the overpayments.

Waller LJ (Arden and Moore-Bick LJJ concurring) effectively allowed Furmans’ claim but dismissed Elecref’s counterclaim, and in doing so made two interesting comments. …

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Football and fiduciaries

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| Fiduciaries, Restitution

Football, via WikipediaWhat if a footballer’s agent, in negotiating for his client, makes a secret deal with the club for himself on the side?

This is how Jacob LJ opened Imageview Management Ltd v Jack [2009] EWCA Civ 63 (18 December 2008). It concerns the bung, which is almost as endemic in football as referees, the offside trap, and angry managers. Bungs are secret payments that are sometimes part of football transfers; taking one is against the rules of football; the question in Imageview Management Ltd v Jack is whether the agent breached his duties to his client as well. The duties in question are fiduciary duties, weighty duties of loyalty owed by trustees, directors, agents, and so on.

In Boston Deep Sea Fishing v Ansell (1888) 39 Ch. D. 339, a company director secretly received commission from shipbuilders with whom an order had been placed on the company’s behalf. The Court of Appeal found him in breach of fiduciary duty. More recently, in Imageview Management Ltd v Jack [2009] EWCA Civ 63, the Court of Appeal reiterated the strictness of the fiduciary duties to which agents are subject in a case concerning a football agent. The agent was liable for a payment he received from a football club.…

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Proprietary Restitution

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| Restitution

Legal Studies cover, via Wiley website.The question of when unjust enrichment can give rise to proprietary rather than personal remedies is a fraught one. Like Fermat’s Last Theorem, there may be a truly marvellous solution, but it is still elusive. Nevertheless, we are several steps closer to the proof, thanks to William Swadling‘s very important article on (the weaknesses of) Policy arguments for proprietary restitution (2008) 28 (4) Legal Studies 506-530. Here’s the abstract:

Arguments are sometimes made attempting to justify proprietary awards to unjust enrichment claimants by reference to the ‘priority’ such awards supposedly give in the defendant’s insolvency. Those justifications are variously that unjust enrichment claimants do not take insolvency risks, that the defendant’s creditors would otherwise receive an underserved windfall, and that unjust enrichment claimants occupy a position analogous to secured creditors. This paper shows that such arguments are flawed. To award unjust enrichment claimants’ proprietary rights is not to give them priority in their defendant’s insolvency but to withdraw the right from the estate available for distribution to all the unsecured creditors, whatever their order of priority. Moreover, insolvency ‘priority’ is not the only consequence of such an award. Finally, when seen for what they are, viz arguments for the award of property rights, the justifications do not, for a number of reasons, stand up.

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This is not just a VAT case

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| Restitution

Teacake via BBC.It’s an unjust enrichment case from your M&S. For those who have a taste for this kind of thing, this morning brings momentous news. The teacakes litigation is over! Eventually! After more than 13 years! See Marks and Spencer plc (Appellants) v Her Majesty’s Commissioners of Customs and Excise (Respondents) [2009] UKHL 8 (4 February 2009) (also here). The matter had been referred to the ECJ twice, and had returned to the House of Lords after the second reference (earlier stages are: CA, ECJ, CA, HL here and here, ECJ). Lord Walker of Gestingthorpe concluded his speech as follows:

The Court of Justice’s answers to the third and fifth questions did therefore raise the possibility of further issues having to be decided by the national court. But the Commissioners have, after thirteen years of litigation, decided that they do not wish to pursue these matters. The House can therefore dispose of the matter by allowing the appeal from the order dated 21 October 2003 of the Court of Appeal, and inviting submissions as to costs (if necessary) within fourteen days.

Now, the only question is, what kind of teacake do I want with my morning coffee?!…

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