Category: Restitution

More on Madoff, O’Brien, and Restitution

| 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.

…

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ESB, Xafinity, Madoff: Restitution in the news!

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| Restitution

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

ESB logo, via the ESB site.

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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Temporal Limitations?

| 3 Comments
| General, Restitution

NPR logo, via their website.The aim of the Statute of Limitations, 1957 (also here) is to achieve a degree of certainty and finality in litigation by ensuring that unlitigated cases get barred from coming to court by the passage of too much time. Periods range from 3 and 6 years to 12 and 20 years. But no claim is allowed persist indefinitely. However, via National Public Radio‘s wonderful All Things Considered program, I’ve just heard and read about a case concerning a (restitution!) claim that may be more than 700 years old:

A group of people claiming to be the heirs of the legendary Knights Templar are suing Pope Benedict XVI, seeking more than $150 billion for assets seized by the Catholic Church seven centuries ago.

Isn’t barring cases like that what Statutes of Limitations are for? The claim has been taken in Spain, but it too has limitation (called prescription – prescripción – in good Civilian style) provisions; and I am sure that they will apply to bar the claim. It sheer audacity is breath-taking, but it would take a miracle for it to succeed.…

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Blog posts on Restitution – featuring Skippy, the Bush Kangaroo!

| 3 Comments
| Cinema, television and theatre, Restitution

Steve Hedley has added a very useful page on blog posts relating to restitution to his wonderful site of legal resources on Restitution and Unjust Enrichment. From it, I learn of an entertaining post Hand over the money, Skippy by Legal Eagle on skepticlawyer.

On television, before Barney, long before Barney, there was Skippy, Skippy, Skippy, the bush kangaroo we all love to hate, or at least to parody. Now, Legal Eagle directs us to a fabulous story in which Actor Tony Bonner wants residuals from Skippy:

AFTER 40 years it seems there’s one last adventure left for Skippy, Australia’s iconic television kangaroo – Skippy Goes To Court.

…

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Restitution Roundtable – 14 December 2007

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| Restitution

WLU Law logo, via their site.


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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Airlines are facing legal challenge over refunds

| 3 Comments
| Airline charges, Consumer, Irish Law, Restitution

Small palm tree, via Steve Hedley's restitution siteUnder the above headline, Paul Cullen has an excellent piece (sub req’d) on the front page of today’s Irish Times, to the effect that the newly created National Consumer Agency (NCA) is planning a legal challenge aimed at forcing airlines to pay refunds to customers and to display their prices more clearly. The NCA has various airline practices firmly in its sights (and anyone who has been on a plane recently knows exactly what they are), but one line in the article particularly caught my attention:

The airlines are to be asked why … the taxes and charges they collect on behalf of airports are not refunded if a passenger does not fly.

Irish airlines are hardly unique in being slow to refund unincurred taxes and charges (see, for example, the UK’s Air Transport Users Council (AUC) report (pdf) on the issue, and some US stories here and here). One recent online report discussed Ryanair’s less than helpful practices in this area.

Nevertheless, as I have said on this blog before, in my view, as a matter of law, taxes collected but not due must be refunded. In my view, therefore, the NCA has solid legal grounds for this aspect at least of its actions against airlines, and I look forward to further developments in this story!…

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The Treatment of Suretyships in the EU: Unhappy Families?

| 3 Comments
| Conferences, Lectures, Papers and Workshops, Contract, Restitution

mel-kenny-at-dlw.JPG

All families are happy in the same fashion,
and each family is unhappy in its own way.

Count Leo Tolstoy (1828-1910)
in Anna Karenina (1875-1877)

Banks lend money; but they are averse to the risks of this lending, so they usually require security for the money they lend. One form of security is to get another, creditworthy, person to agree to pay the loan if the borrower fails to do so. This arrangement is called a suretyship, and the person who undertakes to pay if the borrower does not is called a surety.

Do sureties need protection from the borrowers or lenders? For example, if a husband and wife have interests in the family home, and the wife agrees to secure a loan to her husband against her interest in the family home, does a vulnerable wife need protection either from an overbearing husband or an unscrupulous bank here? …

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Refunding unincurred airport taxes and charges

| 7 Comments
| Airline charges, Consumer, Contract, Restitution

Small palm tree, via Steve Hedley's restitution siteA payment made on a basis which fails can be recovered. So, if I pay for cigarettes, and the price includes an amount for a tax which is subsequently found unconstitutional, the basis for that excess amount has failed, and I can recover the tax amount that wasn’t due (see Roxborough v Rothmans of Pall Mall Australia Limited (2001) 208 CLR 516; [2001] HCA 68 (6 December 2001)). It follows that if I book to travel with an airline, and pay their fee plus taxes and charges, but if I then don’t travel, so that the charges are not incurred and the taxes are not due, the basis for those taxes and charges has failed, and I ought to be able to recover them. If the contract between me and the airline contains clauses making them irrecoverable, (or, what amounts to the same thing, imposing disproportionately high administration fees) such clauses are almost certainly unenforceable (on foot of the European Communities (Unfair Terms in Consumer Contracts) Regulations, 1995 (S.I. No. 27 of 1995), the English equivalent of which have recently been applied by the Office of Fair Trading (OFT) against an airline’s terms and conditions).

These musings are prompted by the following story in the Price Watch column in today’s Irish Times (sub req’d):

No guaranteed refund if you don’t take your Ryanair flight

…

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