cearta.ie – Page 48 – the Irish for rights

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?

16 August, 201212 May, 2021

| 4 Comments

| Restitution

Lord 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.…

Declaration of the Committee of Ministers of the Council of Europe on “Libel Tourism” & Freedom of Expression

15 August, 201216 November, 2015

| No Comments

| Defamation, Freedom of Expression, Libel tourism

From the Declaration of the Committee of Ministers on the Desirability of International Standards dealing with Forum Shopping in respect of Defamation, “Libel Tourism”, to Ensure Freedom of Expression, adopted by the Committee of Ministers on 4 July 2012 at the 1147th meeting of the Ministers’ Deputies:

13…. the Committee of Ministers:

– alerts member States to the fact that libel tourism constitutes a serious threat to the freedom of expression and information;

– acknowledges the necessity to provide appropriate legal guarantees against awards for damages and interest that are disproportionate to the actual injury, and to align national law provisions with the case law of the Court;

– undertakes to pursue further standard-setting work with a view to providing guidance to member States.

via wcd.coe.int

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Messing about in boats: Restitution from the Executive – II

15 August, 20125 November, 2017

| 1 Comment

| Restitution

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.…

Claud Cockburn on journalism

14 August, 20121 March, 2013

| No Comments

| Defamation, General

… remember that there is one golden rule for success in journalism: libel someone famous early in your career.

via memex.naughtons.org

… believe nothing until it has been officially denied.

via wikiquote

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Messing about in boats: Restitution from the Executive – I

14 August, 201225 October, 2022

| 2 Comments

| Restitution, The Rule of Law

“Believe me, my young friend, there is nothing – absolutely nothing –
half so much worth doing as simply messing about in boats”.

Ratty to Mole (above), in Kenneth Grahame‘s
The Wind in the Willows (1908) chapter 1.

In Woolwich Equitable Building Society v Inland Revenue Commissioners [1993] AC 70 (HL) (pdf), the House of Lords held that taxes and other imposts unlawfully exacted by the State are recoverable by the taxpayer as of right, and that this duty to make restitution carries with it the obligation to pay interest on the sums unlawfully exacted. Three recent cases raise very interesting issues relating to this principle, and I want to discuss them in two posts. The first case is the decision of Cooke J in Island Ferries Teoranta v Minister for Communications [2011] IEHC 388 (18 October 2011)) and [2012] IEHC 256 (26 June 2012), and I will discuss it in its own terms in this post. The other two cases are 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 [2012] ECR-I nyr, [2012] EUECJ C-591/10 (19 July 2012)), and I will discuss Island Ferries Teoranta in the light of those decisions in tomorrow’s post.…

McKillen’s claims against the the Barclay Brothers are dismissed

10 August, 201228 April, 2015

| 1 Comment

| Open Justice

In McKillen v Misland (Cyprus) Investments Ltd [2012] EWHC 2343 (Ch) (10 August 2012) Mr Justice David Richards dismissed the claims brought by Patrick McKillen.

Patrick McKillen is the owner of a 36.2% shareholding in Coroin Limited (the Company) which owns and manages three hotels in London – Claridge’s, The Connaught and The Berkeley. Of the original members, Mr McKillen and Derek Quinlan (with 35.4%) remain. In January 2011, a company associated with Sir David and Sir Frederick Barclay bought Misland (Cyprus) Investments Limited (Misland) which then owned 24.7% and now owns 28.36%

Mr McKillen’s proceedings concern, principally, steps taken by Sir David and Sir Frederick Barclay and by companies associated with them (the Barclay interests) during 2011 to obtain control of the Company. Mr McKillen alleges that these steps involved breaches of an agreement among the shareholders and breaches of duty by directors of the Company appointed by the Barclay interests.

Mr McKillen commenced two related sets of proceedings. In one, he sought orders under sections 994-996 of the Companies Act 2006 on the grounds that the affairs of the Company had been conducted in a manner which was unfairly prejudicial to his interests as a shareholder. In the other, he sought damages in tort for conspiracy to cause loss by unlawful means and for inducing breaches of contract.…

Beatson LJ: congratulations!

27 July, 20127 November, 2012

| 3 Comments

| General

This post is just a quick note to congratulate Jack Beatson (pictured left) on his elevation to the Court of Appeal in London. Before he became a judge, Jack was Rouse Ball Professor of English Law at Cambridge and a Fellow of St John’s College, and in that capacity he supervised my PhD thesis. (Adopting a line I saw elsewhere, we both survived).

I’m delighted to learn today that, in the formal wording of such announcements, the Queen has been pleased to approve the appointment of The Honourable Mr Justice Beatson as a Lord Justice of Appeal to fill a forthcoming vacancy in the Court of Appeal. In Debrett’s, he lists his recreations as “trying to relax”. I fear he might not have much time for that in his new role.

Congratulations, Jack!…