Skip to content

cearta.ie

the Irish for rights

Menu
  • About
  • Privacy Policy
  • Disclaimer
  • Contact
  • Research

Category: Restitution

Tory Island and Unjust Enrichment

5 April, 200915 May, 2017
| 10 Comments
| 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.

…

Read More »

Rescue from the runaway truck

11 March, 200926 May, 2009
| 3 Comments
| 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.

…

Read More »

Services and overpayments

11 March, 200916 July, 2013
| 2 Comments
| 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. …

Read More »

Football and fiduciaries

19 February, 200928 October, 2009
| No Comments
| 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.…

Read More »

Proprietary Restitution

7 February, 20097 February, 2009
| 3 Comments
| 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.

…

Read More »

This is not just a VAT case

4 February, 200914 March, 2009
| 7 Comments
| 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?!…

Read More »

Specific Restitution

2 February, 20092 February, 2009
| No Comments
| Restitution, Uncategorized

Roger Williams University School of Law logo, via their websiteRecently posted on SSRN, a very important paper by Colleen P. Murphy (of Roger Williams University School of Law) on “What is Specific About ‘Specific Restitution’?” (forthcoming Hastings Law Journal, Vol. 60, 2009). Here’s the abstract:

An important functional difference among restitutionary remedies is between giving a plaintiff the monetary value of the defendant’s unjust enrichment or giving the plaintiff an identifiable asset that constitutes the defendant’s unjust enrichment. This difference commonly is labeled by scholars to be a difference between a money judgment and “specific restitution.” This terminology obscures important concepts, such as that a plaintiff’s asset-based remedy might be for a fund of money or that recovery of an asset might not constitute “specific” relief-that is, the plaintiff might not get the thing to which the plaintiff originally was entitled. In many of its uses by scholars, there is nothing “specific” about specific restitution. This article situates the term specific restitution within the larger context of how the term “specific” is used in the law, and it examines how scholars and courts have used “specific restitution.” Finally, the article turns to the American Law Institute’s ongoing project to produce a Restatement (Third) of Restitution and Unjust Enrichment.

…

Read More »

More on Madoff, O’Brien, and Restitution

24 January, 200930 January, 2009
| 1 Comment
| judges, Restitution

HSBC logo, via their site.Further to my recent post on Restitution in the news!, two pieces in today’s Irish Times caught my eye:

Breifne O’Brien faces new claims for €997,000

TWO MORE claims have been brought to court against Breifne O’Brien, operator of an investment scheme, for the repayment of money given to him. The latest claims, totalling almost €1 million, will increase to more than €14 million the sums sought from the businessman. Mr Justice Peter Kelly was told yesterday by Alan Doherty, for several claimants, that two other creditors of Mr O’Brien have issued proceedings. This followed the judge’s indication last week that anyone else with claims should move speedily.

Kelly J was busy yesterday, as the other story demonstrates:

Two Irish-listed firms in court bid to recover €1bn

WO IRISH-LISTED investment companies, which gave sums of more than $1.1 billion (€847 million) and €170 million destined for alleged $50 billion fraudster Bernard Madoff and his company to invest in the Irish arm of banking giant HSBC to administer, have initiated Commercial Court proceedings in a bid to get the money back. The holding funds in which the money is held have been frozen. … Mr Justice Peter Kelly … said he believed this was the first litigation here deriving from the “infamous” Madoff bankruptcy and he listed for hearing on Tuesday next applications by the companies to prevent their money being dissipated or removed outside the Irish jurisdiction without leave of the court.

…

Read More »

Posts navigation

Previous 1 … 12 13 14 Next

Welcome

Me in a hat

Hi there! Thanks for dropping by. I’m Eoin O’Dell, and this is my blog: Cearta.ie – the Irish for rights.


“Cearta” really is the Irish word for rights, so the title provides a good sense of the scope of this blog.

In general, I write here about private law, free speech, and cyber law; and, in particular, I write about Irish law and education policy.


Academic links
Academia.edu
ORCID
SSRN
TARA

Subscribe

  • RSS Feed
  • Twitter
  • LinkedIn

Recent posts

  • Some of #RushdiesWords on free speech from Joseph Anton
  • Some practical perspective on the recovery of misdirected payments
  • It’s good to TalkTalk – Part 2: negligence claims for data breaches
  • It’s good to TalkTalk – Part 1: misuse of private information claims for data breaches
  • Political expression, autonomous communication, and anti-social behaviour orders: a note on Tallon v DPP [2022] IEHC 322 (31 May 2022)
  • On the Internet, does Article 17 know you’re a dog?
  • The nutty wing of the Originalist camp is now in the SCOTUS ascendency – is it the death knell for tiers of scrutiny, especially in the First Amendment context?

Archives by month

Categories by topic

Recent tweets

Tweets by @cearta

Licence

Creative Commons License

This blog is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License. I am happy for you to reuse and adapt my content, provided that you attribute it to me, and do not use it commercially. Thanks. Eoin

Credit where it’s due

Some of those whose technical advice and help have proven invaluable in keeping this show on the road include Dermot Frost, Karlin Lillington, Daithí Mac Síthigh, and
Antoin Ó Lachtnáin. I’m grateful to them; please don’t blame them :)

Thanks to Blacknight for hosting.

Feeds and Admin

  • Log in
  • Entries feed
  • Comments feed
  • WordPress.org

© cearta.ie 2022. Powered by WordPress