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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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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In yesterday’s Irish Times, I noticed the following story:

ESB to pay rebates on 100,000 overcharged bills

The ESB says the payment of rebates to about 100,000 of its customers who were overcharged on estimated bills will be completed by the end of next month.

The utility is repaying a total of €3.5 million to customers after carrying out a review of its billing practices ordered by the Commission for Energy Regulation (CER) …

This is as it should be. Even if there were no contractual obligation on the ESB to regularise the position regarding estimated bills, there would be plainly be a restitutionary one. This reminded me of a story from a recent Financial Times, about pension overpayments on a large scale, which also makes for very interesting reading: …

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On 14 December 2007, the Frances Lewis Law Center, of the School of Law, University of Washington and Lee, Lexington, Virginia, USA, in association with the University of Washington and Lee Law Review, will host

A Roundtable on Restitution and Unjust Enrichment in North America.

The main point underpinning the Roundtable is to get North American (ie, Canadian and US) Restitution scholars, practitioners, judges and others with an interest in the subject, together in one place, talking about current legal issues in the Law of Restitution and Unjust Enrichment. There seem to be too few opportunities to do so, except on the margins of other more generally focussed events. The hope is that this informal Roundtable will provide just such a context. Given that the American Law Institute‘s current project on a Restatement (Third) on Restitution and Unjust Enrichment is at a crucial stage, and that the Supreme Court of Canada’s recent case law is proving controversial, this would seem an opportune time.

Information about the current papers, registration and travel and accommodation, is available on the Roundtable wesbite and blog (see also here and here). The call for papers is now closed.…

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