Another Tale of Two Toms – Restitution of Mistaken Payments, and Interceptive Subtraction, again – updated

Toms: Holland/er

Actor Tom Hollander (imdb | wikipedia | image source) told an anecdote to Seth Meyers on the Late Night tv show (geoblocked NCB clip | YouTube clip), about when he received a bonus payslip meant for actor Tom Holland (imdb | wikipedia | image source). At the time, the two actors shared an agent, who obviously mixed up his own clients, so it’s not a surprise that the rest of us do too. For example, after the casting of Captain America: Civil War (2016 | imdb) was announced, I thought it was a brave decision to have Mr Collins play Spiderman! Hollander’s story relates to one of Holland’s subsequent outings as Spiderman. Hollander told Meyers that he got an email containing Holland’s first box office bonus payslip for The Avengers: Infinity War (2018 | imdb). Hollander said that it was for an “astonishing amount of money”.

Writing in The Guardian, Stuart Heritage commented that this is “a nice little insight into the world where there are too many famous Toms with similar surnames”. Indeed, not only are there too many Toms with the same surnames, sometimes they receive either other’s money, not merely the payslip. I’ve blogged about one such example, where Florida golfer Thomas Fleetwood received British golfer Tommy Fleetwood’s winnings for a twelfth place finish in the 2018 Open golf championship. In my post, I explained how, where such payments are misdirected, they can be recovered either by the payor or by the intended payee. So, if Tom Hollander had tried to retain Tom Holland’s bonus, not only could the agent have sued to recover it, but SpiderMan would (in the alternative) also have been able to sue Mr Collins to recover it too.

Update (31 January 2024): writing on Twitter, @SpinningHugo commented:

It is extremely unlikely indeed that the intended payee has a claim against the recipient. That was always the case, but is now even clearer in the UK following the UKSC decision in ITC. Birks’ examples of “interceptive subtraction” all had specific rationales.

Given that the misdirected Holland/er payment seems to have happened in England, this is an important objection, but I don’t think it’s necessarily fatal to SpiderMan’s claim against Mr Collins.

First, a superb discussion of the alternative specific rationales that may underlie Birks’ examples of interceptive subtraction is to be found in Lionel Smith “Three-party restitution: a critique of Birks’s theory of interceptive subtraction” (1991) 11 Oxford Journal of Legal Studies 481. Birks’ reply is at Peter Birks “At the Expense of the Claimant: Direct and Indirect Enrichment in English Law” (2000) Oxford University Comparative Law Forum 1).

Second, Hugo refers to “the UKSC decision in ITC“; that is a reference to Revenue and Customs v The Investment Trust Companies [2018] AC 275, [2017] UKSC 29 (11 April 2017). In an earlier blogpost on this point (to which this post is merely an updating footnote), I read Lord Reed (at [46]-[51]) in that case, and Lords Sumption and Mance in the subsequent Lowick Rose LLP v Swynson Ltd [2018] AC 313, [2017] UKSC 32 (11 April 2017) [20], [58]-[68], as deciding that, whilst there must be some transactional connnection between the two parties, this does not need be a direct transfer from plaintiff to defendant, and that the relevant connection might include a series of closely connected transactions which were intended to function as one composite transaction. Hugo is clearly taking a tight reading of these cases, focussing perhaps on the requirement that the series of connected transactions must have been intended to function as one composite transaction. If so, then this focus would clearly exclude interceptive subtraction by unintended misdirection as a sufficient connection. However, my point in the earlier blogpost was the slightly different one that, if English law does not require a direct transfer rule, and can accommodate a series of connected transactions, then it can also accommodate the principle of interceptive subtraction. So, I don’t think that either ITC or Lowick Rose has necessarily closed the door to interceptive subtraction. The point remains to be decided.

Third, even if ITC or Lowick Rose could be said to have closed that door as a matter UK law, this isn’t necessary the position elsewhere in the common law world. For example, the Supreme Court of Canada has expressly adopted Birks’ approach (see LAC Minerals v International Corona Resources [1989] 2 SCR 574, 669-670, (1989) 61 DLR (4th) 14, 45, 1989 CanLII 34 (SCC) (11 August 1989) (La Forest J)). And there are many Irish and US cases in my last blogpost that are not as easily explained away as the English cases in Smith’s paper.