Category: Restitution

Overactive Australian AMTs – criminal and restitutionary liability for over-withdrawals

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| Mistaken payments, Restitution, Restitution

I wrote before Christmas about overactive Bank of Ireland ATMs. Exactly the same issue has just arisen in Australia:

Consumer groups are calling on the Commonwealth Bank to explain what went wrong with its ATMs on Tuesday, with a glitch resulting in some customers withdrawing excessive amounts from the machines. Police charged two men in Sydney on Wednesday with fraud for allegedly withdrawing extra money from the faulty machines during the meltdown.

As with the Bank of Ireland ATMs, the CBA machines operated in standby mode, but if you take money to which you are not entitled, it may very well constitute theft – and even if it doesn’t, it will certainly give rise to contractual or restitutionary duties to return the overpayments. I have this news via Legal Eagle on Skepticlawyer, who argues that

… the Commonwealth Bank will definitely have recourse to recover the money from individuals who have taken advantage of the glitch in its computer processes, subject to the defence of good faith change of position. It’s my theory that one of the reasons behind the rise of unjust enrichment law is electronic banking and the mistakes which arise therein. Seriously! I’ve spoken before about the paradigm case, Chase Manhattan Bank N.A.

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The Court of Appeal on Barder v Calouori [1988] AC 20 and common mistake of fact

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| General, Mistake, Restitution

Richardson v Richardson [2011] EWCA Civ 79 (08 February 2011)

Lord Justice Munby

The death of the wife

17. There is no need to spend much time on the law. The principles are set out in the passage in the speech of Lord Brandon of Oakbrook in the eponymous case, Barder v Calouori [1988] AC 20, page 43, which is so well-known that it hardly requires quotation.

18. It is well recognised that the unexpected death of one of the spouses can be a Barder event. Barder itself was such a case (wife killed children and committed suicide five weeks after the ancillary relief order). There have been others in which the claim has succeeded: Smith v Smith (Smith and Others Intervening) [1992] Fam 69 (wife committed suicide within six months); Barber v Barber [1993] 1 FLR 476 (wife died of liver disease within three months); Reid v Reid [2003] EWHC 2878 (Fam), [2004] 1 FLR 736 (diabetic wife with high blood pressure died within two months). But it is not enough to show that one of the parties died unexpectedly very shortly after the hearing. What has to be shown, to quote Lord Brandon, is that the death “invalidate[s] the basis, or fundamental assumption, upon which the order was made”.

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The Art Law Blog: Court of Appeals Affirms Wildenstein Dismissal

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| General, Restitution

Landscape with Three Trees 1892

“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

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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

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| Irish Law, Restitution

The Mill Wheel on the Mall Walk in Longford, via the Longford Town Council websiteIf 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

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| General, Restitution

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

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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.…

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