Category: Restitution

The slayer’s bounty, the homicidal heir, and accelerated inheritance from Crippen to Nevin

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| Irish Law, Restitution

Wellcome Trust image of Crippen and Le NeveHawley Harvey Crippen (pictured far left) was the first criminal to be captured in Britain with the aid of wireless communication. He was an American homeopath who fetched up in London at the turn of the 20th century with his wife, Cora, a former music-hall singer. After she disappeared in 1910, Hawley and his lover, Ethel le Neve (pictured left, with Hawley), were questioned by Chief Inspector Walter Dew of Scotland Yard, and they fled in panic, first to Brussels, and then via the steamship Montrose to Canada. Meanwhile, during a search of Hawley’s house, the police found human remains buried in the basement. On the Montrose, he and Ethel (who had tried to disguise herself as a boy) aroused the suspicion of the captain; and, since the ship was one of the few fitted with the new Marconi wireless, he was able to radio the authorities. Dew boarded the Laurentic, a faster ship which arrived in Canada ahead of the Montrose; and, with the help of the Canadian police, he apprehended Hawley and Ethel. They were returned to London (the picture, left, was taken at their arraignment). Hawley was convicted of murder, and his appeal was dismissed (R v Crippen [1911] 1 KB 149).…

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The House that Disappeared on Tory Island – Updated

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| Restitution, Tory Island

Anton McCabeJournalist Anton McCabe (pictured left) has written a book about The House that Disappeared on Tory Island (Drumkeen Press, 2012), which was launched by former editor of the Irish Daily Star Michael O’Kane. Film-maker Neville Presho bought a house on Tory Island, but it vanished whilst he was abroad. I have written on this blog about the resulting court case. Now Anton McCabe tells the whole sad story. At the launch of the book, he said, “It is a great story and a true testament to … [Presho’s] refusal to give up his fight for justice”.

In advance of the launch, McCabe gave an interview to the Ulster Hearld which explained his involvement in the case:

I had been going to Tory Island for quite a number of years and islanders had told me they were unhappy with what had happened … Going over in the ferry at Easter 2003, I was standing on the prow of the boat when I fell into conversation with another man before I realised he was the householder, Neville Presho. He was surprised I knew so much and had gone through a terrible time by then. Soon after that, which was ten years after the house had been destroyed, things started to happen.

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Unconstitutional expenditures – IV – remedies for breach of the McKenna prohibition

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| Irish cases, Irish Law, Irish Supreme Court, Restitution

Polling sign - element of photo by European ParliamentThis is my fourth and final post on the per curiam in McCrystal v The Minister for Children and Youth Affairs [2012] IESC 53 (8 November 2012) (also here), which held that the defendants had acted wrongfully in expending public moneys on a website, booklet and advertisements in relation to the children’s referendum in breach of the prohibition in McKenna v An Taoiseach (No 2) [1995] 2 IR 10, [1995] IESC 11 (17 November 1995). In my first post, I looked at the background to the per curiam. In my second post, I explored exactly what was forbidden by McKenna, and concluded that it prohibits intentional partisan government expenditure. In my third post, I concluded that the precise constitutional basis for that prohibition is that such expenditure is undemocratic, unfair, unbalanced, unequal or partial, and that it may be restrained because it therefore violates the right to an equal franchise (see also the posts here by Paul McMahon and here by Laura Cahalane, and this assessment by Conor O’Mahony). In this post, I want to look at the remedies which might be available to a citizen for breach of that right.…

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Unjust enrichment and state aids

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| Restitution

EU law update

from the Irish Times Mon, Aug 27, 2012

THE EUROPEAN Commission has published a “reasoned decision” including an order for Ireland to take steps to recover exchequer funds obtained unlawfully by Aer Lingus, Aer Arann and Ryanair. It found the Irish air carriers had received an unlawful selective benefit by virtue of the two-tier structure of the Government’s “air travel tax” from March 2009 to March 2011.

A €10 levy applied to all passenger flights save for those to destinations less than 300km from Dublin Airport, which incurred a €2 levy. The lower tax was found to be an unlawful waiver of tax revenue for domestic airlines, so the exchequer must now recover the €8 difference for each flight.

via irishtimes.com

The Commission decision will be here; meantime, the press release is here.

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Spectacular disgorgement in NTI v Canada

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| Restitution

Flag of Nunavut, via WikipediaWhere a defendant has made a profit from a civil wrong such as a breach of contract or a tort, damages can be directed to stripping the profit from the defendant. For example, in Hickey v Roches Stores (High Court, unreported, 14 July 1976) (pdf) Finlay P held

Where a wrongdoer has calculated and intended by his wrongdoing to achieve a gain or profit which he could not otherwise achieve and has in that way acted mala fide then irrespective of whether the form of his wrongdoing constitutes a tort or a breach of contract the Court should in assessing damages look not only to the loss suffered by the injured party but also to the profit or gain unjustly or wrongly obtained by the wrongdoer.

So far as breach of contract is concerned, English law reached the same conclusion in AG v Blake [2001] 1 AC 268, [2000] UKHL 45 (27 July 2000). It was a controversial conclusion. It has been applied in Esso Petroleum Co Ltd v Niad [2001] EWHC 6 (Ch) (22 November 2001), considered in passing in Sempra Metals v Revenue [2008] AC 561, [2007] UKHL 34 (18 July 2007) and Kuddus v Chief Constable of the Leicestershire Constabulary [2002] 2AC 122, [2001] UKHL 29 (7 June 2001), and distinguished in Experience Hendrix Llc v PPX Enterprises [2003] EWCA Civ 323 (20 March 2003), WWF-World Wide Fund for Nature v World Wrestling Federation Entertainment [2008] 1 All ER 74, [2008] 1 WLR 445, [2007] EWCA Civ 286 (02 April 2007), and Devenish Nutrition v Sanofi-Aventis SA (France) [2008] 2 All ER 249, [2008] 2 WLR 637, [2007] EWHC 2394 (Ch) (19 October 2007).…

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The varieties of subrogation

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| 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 particular, it is the process by which one party is substituted for another so that the first party may enforce that other’s rights against a third party. Mark Leeming (Faculty of Law, University of Sydney) has just published “Subrogation, Equity and Unjust Enrichment” as Sydney Law School Research Paper No 12/52 on SSRN. It is a version of his paper in Glister and Ridge (eds) Fault Lines in Equity (Hart Publishing, Oxford, 2012) 27-43 (collecting the papers from the symposium “Comparative Perspectives on Equity” held at the University of Sydney on 14 December 2010). This is the abstract:

Is “unjust enrichment” merely a unifying theme, or is it something more, a legal norm in its own right capable of supplying answers to particular cases? Or, if that is a false distinction, and indeed “unjust enrichment” may be either, then what approach is more likely to result in a legal system whose operation is clear, certain and coherent? This paper is directed to those questions. It notes the highly divergent approaches to a single doctrine – subrogation – in the House of Lords and the High Court of Australia, with a view to evaluating which mode of reasoning leads to clarity, transparency and coherence.

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Judges and Professors – Ships passing in the night?

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| Restitution

Ships by Night, by Alistair Young (lostajy) on FlickrLord Neuberger, outgoing Master of the Rolls in the England and Wales Court of Appeal and incoming President of the United Kingdom Supreme Court, delivered a lecture under the above title at the Max Planck Institute for Comparative and International Private Law in Hamburg on 9 July last. The paper has just been published on the judiciary website (link). Picking up where Baroness Hale left off in “Judgment Writing in the Supreme Court” (pdf | html), his theme was the nature of the relationship between the bench and the academy.

He began with the observation that, the relationship between judges and academics had long been that of ships passing in the night. Historically, convention barred citation of works while their authors were still alive. In the Irish courts in the not too distant past, this convention was still alive and well. I remember discussing a case with a then-serving but now-retired judge. He commented that he had found something I had written “quite useful” (or something equally droll). And he added – matter-of-factly – that he didn’t cite me because I wasn’t dead! I must confess that I didn’t find that comment particularly useful at all.…

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Messing about in boats: Restitution from the Executive – II

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| Restitution

Rossaveel Harbour

In the first stage of Island Ferries Teoranta v Minister for Communications, Cooke J held that harbour charges imposed on the plaintiff in Rossaveel Harbour (pictured above) in Galway Bay by the defendant were ultra vires, and that the detention of the plaintiff’s vessel, the MV Ceol na Farraige (the “music of the sea”), to seek to compel payment of the charges, was a trespass (see [2011] IEHC 388 (18 October 2011)). In the second stage of the proceedings, Cooke J awarded the plaintiffs a total of €92,243 in compensatory damages (see [2012] IEHC 256 (26 June 2012)). In yesterday’s post, I considered what a restitutionary claim at Irish law might have looked like had the case evolved slightly differently. In this post, in the context of the decision of the UK Supreme Court in the FII case (Test Claimants in the Franked Investment Income Group Litigation v Inland Revenue [2012] 2 WLR 1149, [2012] UKSC 19 (23 May 2012)) and the decision of the Court of Justice of the European Union in the Littlewoods case (Case C-591/10 Littlewoods Retail Ltd v Her Majesty’s Commissioners for Revenue and Customs [2010] ECR-I nyr, [2012] EUECJ C-591/10 (19 July 2012)), I want to consider what that claim might have looked like had EU principles been added to the mix.…

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