Restitution – Page 9

“Landscape with Three Trees” (1892) by Paul Gauguin via oceansbridge.com

The New York Court of Appeals has unanimously affirmed the dismissal of a lawsuit against Guy Wildenstein arising out of the purchase of a Gauguin painting. The decision is here [warning: pdf] …

At the intermediate appellate level, one judge thought the unjust enrichment claim should have survived because, on such a claim, “there is no requirement that the aggrieved party be in privity with the party enriched at his or her expense.” But the Court of Appeals held that, although it is true that “privity is not required for an unjust enrichment claim,” such a claim will nevertheless fail “if the connection between the parties is too attenuated.”

via theartlawblog.blogspot.com

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Air tax refund firm in the wars- The Irish Times – Fri, Feb 11, 2011

14 February, 2011

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| General, Restitution

Air tax refund firm in the wars

AIRTAXREFUND.COM has had a turbulent start to this year.

Ryanair has stepped up the legal pressure on the new business, which is offering to chase air tax refunds for passengers for a small fee.

On February 4th, Ryanair’s director of legal and regulatory Juliusz Komorek affairs, fired off two more letters to co-founder Brian Whelan threatening legal action. …

Whelan has been given until 5pm today [ie, Fri Feb 11, 2011] to respond. He told me the matter was with his legal advisers at William Fry. …

via irishtimes.com

I’ve set out the background to this issue here.

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A Victory for the principled development of the law

10 February, 201128 March, 2013

| 5 Comments

| Irish Law, Restitution

If you trespass on my land, and make a profit from that trespass, what should the measure of damages be? It is a very important question, but the answer is disputed, and it had not been directly discussed at Irish law, so far as I know, until it was recently addressed by McMahon J in Victory v Galhoy Inns [2010] IEHC 459 (16 December 2010).

Trespass is a civil wrong (a tort), and the aim of damages for such wrongs is to compensate the plaintiff for the loss caused by the wrong: to put the plaintiff “in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation” (Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39 (Lord Blackburn); Smith New Court Securities v Scrimgeour Vickers [1997] AC 254, [1996] UKHL 3 (21 November 1996); Carey v Independent Newspapers [2003] IEHC 67 (7 August 2003)). However, the law has recognised that where a defendant has made a profit from a civil wrong, the damages can be directed instead to stripping the profits 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.

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Families seek nursing home fee repayments – The Irish Times – Fri, Jan 28, 2011

28 January, 2011

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A number of medical card holders have brought High Court actions seeking repayment of nursing home fees for which they were allegedly incorrectly charged before a new law was brought in four years ago.

via irishtimes.com

I wrote about this last November:

Have older people in private nursing homes received a fair deal from the State?

… I think that those who were entitled to public care but were denied it and compelled to seek private care have a claim to restitution of unjust enrichment. … (i) the state was enriched, because it was saved the otherwise inevitable expense of meeting its obligations under s52 of the [Health Act,] 1970 … Moreover, (ii) that enrichment was at the expense of the older people who were forced into private nursing homes, as it was this private care which saved the government the expense of meeting its s52 obligations. (iii) There are several possible causes of action in this context. First, many older people made private arrangements because they had no other choice; the acted under a practical compulsion or necessity in the circumstances; and such practical compulsion amounts to a cause of action in the law of restitution of unjust enrichment. Second, many older people made private arrangements in the mistaken belief that they were not entitled to access public care (indeed, that mistaken belief was induced by the state); and such a mistake also amounts to a cause of action in the law of restitution of unjust enrichment.

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Symposium: The Restatement (Third) of Restitution and Unjust Enrichment

21 January, 20111 February, 2011

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| Conferences, Lectures, Papers and Workshops, Restitution

Washington and Lee University School of Law and the American Law Institute are pleased to announce a conference on

Restitution Rollout: Restatement (Third) of Restitution and Unjust Enrichment

on February 25, 2011 in Lexington, Virginia.

The American Law Institute (ALI), the leading legal-reform organization in the United States, restates basic legal subjects to inform the legal profession what “the law” is in a particular subject. In 2010, the ALI approved the Restatement (Third) Restitution and Unjust Enrichment (2011), the subject of theRestitution Rollout.

Restatement (Third) of Restitution and Unjust Enrichment replaces the original Restatement of Restitution, promulgated in 1936. Restatement Third restores the full title, Restitution and Unjust Enrichment, that appeared on the Tentative Drafts of the original Restatement but was dropped when the official text was published, thus emphasizing that the subject matter encompasses the independent body of law of unjust enrichment, and not simply the remedy of restitution.

At the conference, ALI Reporter Andrew Kull and ALI Director Lance Liebman will introduce the Restatement Third of Restitution. They will be joined by leading Restitution and Contracts scholars including Joe Perillo, Lionel Smith, Emily Sherwin, John McCamus, Peter Linzer, and Caprice Roberts, among others.…

UCD’s ‘unlawful’ payments now estimated at €6m – The Irish Times – Fri, Jan 21, 2011

21 January, 2011

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| General, Restitution, Universities

UCD MADE unauthorised payments of approximately €6 million to staff that will have to be refunded to the exchequer, the chief executive of the Higher Education Authority has said.

via irishtimes.com

As I said yesterday, the payments may have been unauthorised, but it does not necessarily follow that they will have to be refunded.

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UCD refuses to refund €1.6m paid ‘unlawfully’ to staff – The Irish Times – Thu, Jan 20, 2011

20 January, 2011

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| General, Restitution, Universities

UCD IS refusing to refund €1.6 million paid in “unlawful” allowances to senior academic staff despite pressure from the Department of Education, the Department of Finance and the Higher Education Authority (HEA).

It is understood UCD president Dr Hugh Brady has warned the HEA that any attempt to impose a financial sanction on the university may be “illegal, inappropriate and discriminatory”.

A major standoff has now developed between the two sides, despite months of negotiations between the HEA and UCD vice-president Dr Philip Nolan on the issue.

via irishtimes.com

The issue is not straightforward. For example, Prof Steve Hedley (UCC) has argued:

The issue of overpayments to university staff has yet to be resolved. The truth is that neither side is on very firm ground, and if ever the matter were to be litigated, it would almost certainly be necessary to look at each alleged over-payment separately. … The key provision is the Universities Act, 1997, s 25(4), which reads in part:

… there shall be paid by a university to the employees of that university, such remuneration, fees, allowances and expenses as may be approved from time to time by the Minister [for Education and Skills] with the consent of the Minister for Finance.

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Airlines make €285m on ‘no shows’ | Irish Examiner

14 January, 2011

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| General, Restitution

IRELAND’S two leading airlines are making over €285 million clear profit per annum by holding on to taxes and charges paid by passengers who fail to show up for flights. The operators of a new service to assist Irish air travellers to reclaim refunds of taxes, fees and charges (TFCs), claim Ryanair and Aer Lingus are engaging in “unfair practice” over their handling of the issue. The company, Airtaxrefund.com, said it had dealt with passengers of over 500 flights since its service was launched last October. A survey of such claims indicated Aer Lingus owes an average refund of taxes, fees and charges of €40 per passenger and Ryanair an average refund of €35 per passenger. … The National Consumer Agency has also warned airlines that it is considering a High Court challenge to compel them to refund TFCs to passengers who cancel flights. …

via examiner.ie

If the NCA does take the claim, it has a very good chance of success. See my posts Can you recover taxes and charges from airlines when you don’t travel? (16 Nov 2010); What are websites for? (9 March 2008); Airlines are facing legal challenge over refunds (30 October 2007); Refunding unincurred airport taxes and charges (26 March 2007).

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