Restitution – Page 11

I wrote last April and again last July about the case brought by film-maker Neville Presho, whose holiday home on Tory Island had disappeared in his absence, replaced by a car park for an adjacent hotel. In July, Murphy J held that Mr Presho was entitled to a comparable dwelling on the island or its market value. The matter was adjourned to last week when the judge heard there were significant differences between the sides over what valuation could be put on an equivalent house in Tory. Today, in the High Court, Murphy J awarded Mr Presho €46,000 as damages for trespass and interference with his property (RTÉ news | Irish Times breaking news. Update Irish Examiner | Irish Independent | Irish Times). At an earlier stage in the proceedings, Murphy J had suggested that these damages could be calculated to prevent the defendant’s unjust enrichment, but there is no hint of this in today’s press reports. In the absence of written judgments in this saga, this will probably have to count as another colourful but missed opportunity in the development of the Irish law of restitution for unjust enrichment.…

Only in California – breach of contract and unjust enrichment

28 October, 200913 November, 2009

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| Contract, Restitution

By Meredith R Miller on ContractsProf Blog, a story that needs no further commentary:

Was Carrie Prejean Unjustly Enriched? (Nudge Nudge Wink Wink)

You’ll undoubtedly recall that, back in May, we mentioned that Miss California USA (aka Donald Trump) might terminate then-Miss California Carrie Prejean for breach of contract; Prejean was in fact de-crowned, and she sued the pageant organizers for a whole host of things, including discrimination based on her anti-gay marriage stance and violation of her privacy when a representative acknowledged publicly that she had breast implants. The franchise wasted no time with a countersuit and, according to CNN, one of the claims seeks to recover some $5000 the pageant organizers loaned Prejean for the breast implant surgery – pursuant to an oral agreement between the parties.

Some stories, even contracts profs can’t make up. This ugly tale of caution is one of them.

Update (12 November 2009): the case has settled, but controversy continues to follow her.…

Subrogation and unjust enrichment – hunting the snark

20 October, 200913 December, 2012

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| High Court of Australia, Restitution, Subrogation

The Hunting of the Snark is a nonsense poem written by Lewis Carroll subtitled An Agony in 8 Fits. In Fit 6, the Barrister dreams that the eponymous Snark serves as counsel for the defence, finds the verdict as the jury, and passes sentence as the judge. Perhaps it is fitting then to observe that, by way of update to yesterday’s post about Bofinger v Kingsway Group Limited [2009] HCA 44 (13 October 2009), Legal Eagle on SkepticLawyer characterises the judgment as “yet another snark at unjust enrichment”. True, but reaffirming a light approach to the “unifying legal concept” of unjust enrichment is not necessarily a bad thing, even if the tone is indeed unnecessarily snarky. She does concede that, “to give the High Court credit where credit is due, it gives reasoned arguments for rejecting the Banque Financière decision (see Banque Financière de la Cité v Parc (Battersea) Ltd [1999] 1 AC 221; [1998] UKHL 7 (26 February 1998)). It would sound quite reasonable if it weren’t for the usual snark beforehand” (given my views in my earlier post, it’s no surprise that I agree with her here). Her snark is that the Court does not provide similarly reasoned arguments for what she sees as negative knee-jerk responses to unjust enrichment reasoning.…

Subrogation and unjust enrichment in the High Court of Australia

19 October, 200913 December, 2012

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| High Court of Australia, Restitution, Subrogation

By means of the doctrine of subrogation, one person is substituted for another in the exercise of that other’s rights against a third person. In the classic triangular fact pattern, it arises where a creditor has rights against a debtor, and the claimant is subrogated to the rights of the creditor against the debtor. It is a doctrine which admits of many possible explanations. For example, on the view taken by Meagher, Gummow & Lehane, subrogation largely follows a similar pattern in a series of otherwise unconnected islands: they are content to set out the categories, which, for them, are not closed, and to conclude that there are no universally applicable criteria for the intervention of equity in such cases. On another view of subrogation, taken by Hedley, and by Lord Salmon in Orakpo v Manson Investments [1978] AC 95 (HL), there are some relatively loose connections between the specific contexts but only at an abstract level: Hedley argues for a broad general principle that (subject to defences) the claimant can exercise whatever rights the creditor would, but for the claimant’s payment, have had against the debtor; whilst Lord Salmon argued for an “entirely empirical … principle … that the doctrine will be applied only when the courts are satisfied that reason and justice demand that it should be”.…

Share and share alike: restitution on overpaid stamp duty reserve tax

2 October, 20093 October, 2009

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| Restitution

Cases from the European Court of Justice, holding that national tax provisions are inconsistent with EU law, just seem to keep on coming. The most recent is a decision of the ECJ yesterday in Case C-569/07 HSBC Holdings plc and Vidacos Nominees Ltd v The Commissioners of Her Majesty’s Revenue & Customs, which held that the levying of stamp duty reserve tax on a transfer of shares in France as part of a cross-border acquisition, pursuant to section 96 of the Finance Act 1986, was inconsistent with EU law (in particular, Article 11(a) of Council Directive 69/335/EEC of 17 July 1969 (pdf) concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC of 10 June 1985). The Guardian‘s report of the case is typically angst-ridden:

Treasury faces £5bn bill over European tax ruling

European court judgment over UK tax on firms that issue new shares abroad could be costly for British government

The taxpayer faces a bill potentially as high as £5bn following an obscure tax ruling on the issuance of shares by companies made today by the European court of justice. HSBC won an award of £27m plus interest from Revenue & Customs, after a long-running case in which the bank argued that the 1.5% tax it had been forced to pay on new shares it issued in 2000 in France broke EU law.

…

Interesting times for restitution claims

28 September, 200928 September, 2009

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| Restitution

May you live in interesting times.

This is – apocryphally – an ancient Chinese curse. Whatever its provenance, the times are certainly interesting for those who seek restitution of taxes invalidly paid contrary to EU law. In Test Claimants in the FII Group Litigation v HM Revenue & Customs [2008] EWHC 2893 (Ch) (27 November 2008) Henderson J dealt with a series of issues arising in such claims, and in Test Claimants in the VIC Group Litigation; FJ Chalke Ltd & Anor v Revenue & Customs [2009] EWHC 952 (Ch) (08 May 2009) he held that EU law required compound interest to be paid on such claims. This is in contrast to the position at national law, where the courts have held that similar claims to restitution of overpaid taxes (such as was pleaded in the more recent Bloomsbury International Ltd v Sea Fish Industry Authority [2009] EWHC 1721 (QB) (24 July 2009)) only attract simple interest (see my piece “Interesting Times. Overpaid Taxes, Restitution and Compound Interest” (2005) 27 DULJ (ns) 343-363). After Chalke, the Times reported that this could pave the pay for claims amounting to more than £1 billion, and in my previous post I noted that the Financial Times later reported that the Revenue had put aside five times this amount to deal with these and similar claims.…

Restitution of overpaid VAT – clouds and silver linings

23 July, 200912 August, 2016

| 2 Comments

| Restitution

EU law has thrown up some very abstruse issues, none more so that the compatibility of national VAT regimes with European VAT Directives. Where there has been a charge to tax pursuant to national rules which infringe EU law, then that overpayment of tax can be recovered.

Sometimes the issue concerns a relatively straightforward overpayment. For example, the Irish Times reported a little while ago that GE Capital Woodchester Ltd has brought legal proceedings against the Revenue claiming it has overpaid some €19 million due to the State’s alleged failure properly to implement an EU directive related to the VAT treatment of hire purchase transactions. The principle of restitution of overpaid taxes is well established at Irish law (see O’Rourke v The Revenue Commissioners [1996] 2 IR 1 (HC, Keane J) and Harris v Quigley [2006] 1 IR 165, [2006] 1 ILRM 401, [2005] IESC 79 (01 December 2005) following Woolwich Building Society v Inland Revenue Commissioners [1993] AC 70 (HL) (pdf); see also In re Article 26 and the Health (Amendment) (No 2) Bill, 2004 [2005] IESC 7 (16 February 2005)) so the main question in the Woodchester proceedings (at least as they appear from the newspaper report) will be whether the overpayment is in fact made out.…

Tory Island and Unjust Enrichment – continued

18 July, 200928 November, 2012

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| Restitution, Tory Island

I wrote in April about the case brought by film-maker Neville Presho, whose holiday home on Tory Island had disappeared in his absence, replaced by a car park for an adjacent hotel. At that stage, Mr Justice Murphy suggested that there may be a restitution claim for the hotel’s use of the site as a car park, and adjourned the case to receive submissions as to remedy. He gave judgment yesterday (Belfast Telegraph | Irish Independent here and here | Irish Times | RTÉ news). Murphy J held that an equitable remedy lay not in the re-instatement of the original property but in the provision of a comparable dwelling on this island or its market value, and he adjourned to October the issue of which of those options should be chosen. And so we must wait some more to learn whether the remedy really is restitutionary or whether it is founded upon more general considerations.…