cearta.ie – Page 11 – the Irish for rights

Incomplete copyright exceptions for public lectures in libraries, archives, and museums; but not – yet? – in galleries, educational establishments, or online. It’s all an unnecessary mess.

18 May, 202116 June, 2021

| COIPLPA, Copyright, CRC12 / CRC13, Fair use

In a recent comment to my post from last year, on Coronavirus and copyright – or, the copyright concerns of the widespread move to online instruction, I was asked about copyright when giving online lectures for local historical societies. The answer became too long and convoluted for a comment reply, so I thought I’d sketch it here in a post. It should have been a short reply, to the effect that there would be no copyright issues in the way of giving such lectures, but the more I thought about it, and the more I looked at the relevant legislation, the more complicated the answer became. This is not a good position for the law – unnecessary complexity is to the law’s eternal discredit. Indeed, I’m not even sure I’ve got to the bottom of the issue here. If anyone can advance the analysis, please feel free to let me know, either in the comments below, or via the site’s contact form. Meanwhile, this is my first stab at the issue, concluding quite a circuitous analysis with a recommendation for a rather more straightforward reform.

The first question is always whether copyright attaches to the images – as the cartoon, above left, suggests, it often feels like copyright is perpetual – but it does eventually time out.…

Samsoondar v Capital Insurance and Surrey Co Co v NHS Lincolnshire CCG – Part 7 – Defences: Change of Position, and Enrichment Pursuant to Obligation

26 March, 202120 July, 2023

| 5 Comments

| Restitution, Restitution

Thornton and Burrows This is the seventh and final post (see also parts I, II, III, IV, V and VI) discussing the opinion of Lord Burrows (pictured left, via here) giving the advice of the Privy Council in Samsoondar v Capital Insurance Company Ltd (Trinidad and Tobago) [2020] UKPC 33 (14 December 2020) (Samsoondar) and the decision of Thornton J (pictured far left, via here) in the Queen’s Bench Division in Surrey County Council v NHS Lincolnshire Clinical Commissioning Group [2020] EWHC 3550 (QB) (21 December 2020) (Surrey).

In my first post, I introduced the cases and issues. In my second post, I examined whether the defendants were enriched at the expense of the plaintiffs. In my third post, I considered whether compulsory discharge of the debt of another could have provided a cause of action in Samsoondar and Surrey, and whether Surrey could rely upon a policy-motivated cause of action, consisting in the unlawful obtaining or conferral of a benefit by a public authority. In my fourth post, I considered whether the mistaken discharge of the debt of another might have been available on the facts of both cases.…

Samsoondar v Capital Insurance and Surrey Co Co v NHS Lincolnshire CCG – Part 6 – Defences: Voluntariness, and Assumption of Risk

23 March, 20214 March, 2024

| 8 Comments

| Restitution, Restitution

This is the sixth post (in a series of seven; see also parts I, II, III, IV, V and VII) discussing Samsoondar v Capital Insurance Company Ltd (Trinidad and Tobago) [2020] UKPC 33 (14 December 2020) (Samsoondar) and Surrey County Council v NHS Lincolnshire Clinical Commissioning Group [2020] EWHC 3550 (QB) (21 December 2020) (Surrey). In my first post, I introduced the cases and issues. In my second post, I examined whether the defendants were enriched at the expense of the plaintiffs. In my third post, I considered whether compulsory discharge of the debt of another could have provided a cause of action in Samsoondar and Surrey, and whether Surrey could rely upon a policy-motivated cause of action, consisting in the unlawful obtaining or conferral of a benefit by a public authority. In my fourth post, I considered whether the mistaken discharge of the debt of another might have been available on the facts of both cases. In my previous post, I considered some of the effects of voluntariness in the discharge cases. In this post, I want to put this issue of voluntariness in a larger context.…

Samsoondar v Capital Insurance and Surrey Co Co v NHS Lincolnshire CCG – Part 5 – Causes of Action: Compulsion, Mistake, and Voluntariness

22 March, 20214 March, 2024

| 6 Comments

| Mistake, Restitution, Restitution

Surrey v NHS Lincs CCG This is the fifth post (in a series of seven; see also parts I, II, III, IV, VI and VII) discussing Samsoondar v Capital Insurance Company Ltd (Trinidad and Tobago) [2020] UKPC 33 (14 December 2020) (Samsoondar) and Surrey County Council v NHS Lincolnshire Clinical Commissioning Group [2020] EWHC 3550 (QB) (21 December 2020) (Surrey). In my first post, I introduced the cases and issues. A claim to restitution for unjust enrichment failed in the first but succeeded in the second. In my second post, I examined whether the defendants were enriched at the expense of the plaintiffs. In my third post, I considered whether compulsory discharge of the debt of another could have provided a cause of action in Samsoondar and Surrey, and whether Surrey could rely upon a policy-motivated cause of action, consisting in the unlawful obtaining or conferral of a benefit by a public authority. In my previous post, I considered whether the mistaken discharge of the debt of another might have been available on the facts of both cases. In this post, I want to consider the effect of voluntariness in the discharge cases.…

Samsoondar v Capital Insurance and Surrey Co Co v NHS Lincolnshire CCG – Part 4 – Causes of Action: Mistaken Discharge of the Debt of Another

19 March, 202129 July, 2024

| 8 Comments

| Mistaken payments, Restitution, Restitution

This is the fourth post (in a series of seven; see also parts I, II, III, V, VI and VII) discussing Samsoondar v Capital Insurance Company Ltd (Trinidad and Tobago) [2020] UKPC 33 (14 December 2020) (Samsoondar) and Surrey County Council v NHS Lincolnshire Clinical Commissioning Group [2020] EWHC 3550 (QB) (21 December 2020) (Surrey). In my first post, I introduced the cases and issues. A claim to restitution for unjust enrichment failed in the first but succeeded in the second. In my second post, I examined whether the defendants were enriched at the expense of the plaintiffs.

In my previous post, I considered whether compulsory discharge of the debt of another could have provided a cause of action in Samsoondar and Surrey, concluding that it could not in the former but that it could in the latter; and I considered whether Surrey could rely upon a policy-motivated cause of action, consisting in the unlawful obtaining or conferral of a benefit by a public authority. With some difficulty, Thornton J held that Surrey could indeed rely upon it. In this post, I want to consider another – simpler, more straightforward – cause of action that may have been available on the facts of both cases, and that could, in particular, have alleviated the difficulties encountered by Thornton J in Surrey.…

Samsoondar v Capital Insurance and Surrey Co Co v NHS Lincolnshire CCG – Part 3 – Causes of Action: Compulsory Discharge of the Debt of Another; and Policy

18 March, 202120 July, 2023

| 6 Comments

| Restitution, Restitution

This is the third post (in a series of seven; see also parts I, II, IV, V, VI and VII) discussing Samsoondar v Capital Insurance Company Ltd (Trinidad and Tobago) [2020] UKPC 33 (14 December 2020) (Samsoondar) and Surrey County Council v NHS Lincolnshire Clinical Commissioning Group [2020] EWHC 3550 (QB) (21 December 2020) (Surrey). In my first post, I introduced the cases and issues. A claim to restitution for unjust enrichment failed in the first but succeeded in the second. In my second post, I examined whether the defendants were enriched at the expense of the plaintiffs. In this post, and the next two (see parts IV and V), I want to examine whether any such enrichment was unjust.

On the question of whether the enrichment was unjust – that is to say, on the question of whether there is a cause of action or ground for restitution – the same issue arose in both cases. A plaintiff who has been compelled to discharge the debt of another can have restitution from that other in the amount of that enrichment (Moule v Garrett (1872) LR 7 Exch 101; Brooks Wharf v Goodman [1937] 1 KB 543; East Cork Foods v O’Dwyer Steel [1978] IR 103 (SC); Goodman v Minister for Finance [1999] 3 IR 356, [1999] IEHC 197 (8 October 1999) (Laffoy J); Bell Lines v Waterford Multiport Ltd [2006] IEHC 188 (28 April 2006) (Dunne J), rvsd [2010] IESC 15 (18 March 2010) (noted here and here)).…

Tá stair déanta maidin Lá Fhéile Pádraig i gCúirt Bhreithiúnais an Aontais Eorpaigh

17 March, 2021

| No Comments

| Courts, ECJ, Gaeilge

Rinneadh stair maidin inniú, nuair ar thug Cúirt Bhreithiúnais an Aontais Eorpaigh síos a chéad bhreithiúnas as Gaeilge. I gCás C-64/20 UH v An tAire Talmhaíochta, Bia agus Mara, Éire agus An tArd-Aighne, chinn an chúirt go bhfuil sé de cheangal ar chúirt de chuid Ballstáit leas a bhaint as an gcumhacht arna deonú di faoin dlí náisiúnta chun dearbhú breithiúnach a ghlacadh ina sonrófar nár thrasuigh an Stát sin treoir de chuid an Aontais Eorpaigh i gceart agus go bhfuil sé de cheangal air é sin a leigheas. Tá an breithiúnas iomlán as Gaeilge anseo. Sa físeán sa tvuít thíos, tá an Breitheamh Ríagáin ag fógairt achoimre ar bhreithiúnas na Cúirte:

Dúradh gur comhtharlú sona é gur tugadh an breithiúnas stairiúil seo ar Lá Fhéile Pádraig – beannachtaí na féile daoibh go léir!…

Samsoondar v Capital Insurance and Surrey Co Co v NHS Lincolnshire CCG – Part 2 – Enrichment, at the Plaintiff’s Expense

16 March, 202119 December, 2022

| 7 Comments

| Restitution, Restitution

This is the second post (in a series of seven; see also parts I, III, IV, V, VI and VII) discussing Samsoondar v Capital Insurance Company Ltd (Trinidad and Tobago) [2020] UKPC 33 (14 December 2020) (Samsoondar) and Surrey County Council v NHS Lincolnshire Clinical Commissioning Group [2020] EWHC 3550 (QB) (21 December 2020) (Surrey). In my previous post, I introduced the cases and issues. A claim to restitution for unjust enrichment failed in the first but succeeded in the second. Similar issues arose in both cases, on the question of whether the defendant was enriched at the plaintiff’s expense.

When a plaintiff discharges the defendant’s debt to a third party, that saves the defendant an inevitable expense – it incontrovertibly benefits the defendant; it enriches the defendant at the expense of the plaintiff; and the defendant cannot subjectively devalue the benefit received (Benedetti v Sawiris [2014] AC 938, [2013] UKSC 50 (17 July 2013) [25] (Lord Clarke; Lords Kerr and Wilson concurring)). In Surrey, Thornton J held (at [109], [121]) that Lincs were enriched at Surrey’s expense, because Surrey had discharged Lincs’ liability to JD to the extent of the fees paid by Surrey to JD’s care home.…