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Vol 22 No 8 August/Sept 2017

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STEP: A Practical Guide to the Transfer of Trusteeships

Edited by: Richard Williams, Arabella Murphy, Toby Graham
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Unjust Enrichment and Public Law: A Comparative Study of England, France and the EU


ISBN13: 9781841134147
Published: June 2010
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £65.00



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The central aim of this book is to examine claims involving unjust enrichment and public bodies (bodies subject to judicial review) in France, England and the EC.

A central aim of the work is to explore the law as it now stands in the UK following cases such as Woolwich EBS v IRC (where the public body is the defendant) and cases involving swaps transactions (where it can be either claimant or defendant).

The author argues that so far these cases have been viewed from either a public or private law perspective, whereas in fact both branches of the law are relevant, and that the courts ought not to lose sight of the public law issues when a claim is brought under the private law of unjust enrichment. From an English perspective, the debate concerning the merits of civilian enrichment without cause, as opposed to common law unjust enrichment, has arisen in the context of public body claims.

The French experience, by comparison, demonstrates that the two sides of the issue, public and private, remain important regardless of the chosen approach to unjust enrichment; recognising these two aspects, rather than simply adopting the civilian approach, therefore enhances our understanding of these claims. No understanding of cases concerning public law 'illegality' can be complete without an examination of cases where that illegality is provided, not by domestic public law, but by the law of the EC.

Thus a further aspect of the book is that it investigates the division of labour between the European courts and the domestic courts in such cases, and defines the extent to which the two relevant issues, public law and unjust enrichment, are defined in EC law, and to what extent this task is left to the domestic courts.

Subjects:
Constitutional and Administrative Law, Restitution
Contents:
Part 1 Unjust Enrichment and Public Law in England and Wales
1—Definitions and Controversies
'RESTITUTION' OR 'UNJUST ENRICHMENT'
Using the Map
The Criteria for a Claim in 'Autonomous' Unjust Enrichment
'PUBLIC BODIES' AND 'PUBLIC LAW'
CONCLUSION
2—Woolwich and the Creation of the Public Law Reason for Restitution
THE FACTS
THE BACKGROUND TO THE CLAIM
A WHOLLY PRIVATE APPROACH? POTENTIAL UNJUST FACTORS AVAILABLE TO THE WOOLWICH
Duress or Colore Officii
Inequality
No Consideration
Failure of Consideration
Mistake of Law
TWO NEW OPTIONS FOR RECOVERY
WHAT IS THE WOOLWICH UNJUST FACTOR?
Illegality
Incapacity
Absence or failure of basis
Inequality
A WHOLLY PUBLIC APPROACH: COULD RESTITUTION SIMPLY BE A RESPONSE TO A PUBLIC LAW EVENT?
THE SOLUTION: A HYBRID APPROACH
3—The Scope of the Public Law Reason for Restitution
THE SCOPE OF THE PUBLIC LAW REASON FOR RESTITUTION: EIGHT KEY QUESTIONS
Need There Have Been a Demand for the Public Law Reason for Restitution to Operate?
Need There Have Been a Protest for the Public Law Reason for Restitution to Operate?
To What Extent is the Public Law Reason for Restitution Overridden by Statute?
What Exactly Does the Claimant Recover?
Is it Always Necessary to Bring Two Separate Cases, One Action for Judicial Review and One Private Law Claim?
Over What Subject Matter does the Public Law Reason for Restitution Extend?
What Sort of Invalidity Triggers this Reason for Restitution?
Which Kinds of Body Will Give Rise to this Reason for Restitution?
THE SCOPE OF THE PUBLIC LAW UNJUST FACTOR: RESTITUTION FOR PUBLIC BODIES
The 'Swaps' Cases
4—A Hierarchy of Reasons for Restitution
THE ADVANTAGES OF THE PUBLIC LAW REASON FOR RESTITUTION OVER THE PRIVATE LAW UNJUST FACTORS
REASONS FOR RESTITUTION AND TIME LIMITS: IS A HIERARCHY POSSIBLE?
Deutsche Morgan Grenfell v IRC
FURTHER ARGUMENTS AGAINST THE HIERARCHY
Does Mistake Provide a Broader Ground of Recovery than the Public Law Reason for Restitution?
HOW WIDE ARE THE EFFECTS OF THE PUBLIC LAW REASON FOR RESTITUTION?
How Wide is the Finding of Ultra Vires?
How Far does a Claim in Unjust Enrichment Extend into Consequential Loss?
EVIDENCE FOR THE HIERARCHY AND THE ISSUE OF 'CLOSED' SWAPS
CONCLUSION
5—Defences
WHAT GENERAL IMPLICATIONS DOES THE HYBRID NATURE OF THE REASON FOR RESTITUTION HAVE FOR DEFENCES?
TIME LIMITS
PRIVATE LAW DEFENCES
Change of Position
Estoppel
Bona Fide Purchase
Impossibility of Counter-Restitution
Submission to an Honest Claim
Ultra Vires
Passing On
SPECIAL DEFENCES IN PUBLIC LAW UNJUST FACTOR CASES
Fiscal Disruption
The Law Commission's 'Special' Defence of Exhaustion of the Statutory Mechanism
Prospective Overruling
CONCLUSIONS AND FURTHER IMPLICATIONS
Part 1 Conclusions and further implications
Part 2
Unjust Enrichment and Public Law in France
6—Public Body Unjust Enrichment Claims in France; Lessons for England and Wales
THE PUBLIC/PRIVATE DIVIDE IN FRANCE
THE FRENCH LAW OF UNJUST ENRICHMENT
Enrichissement Sans Cause
Répétition de l'indu
Gestion d'affaires
ENRICHMENT WITHOUT CAUSE AND PUBLIC BODIES
Quasi-Contracts are Automatically Adjusted in their Application to Public Bodies
If Courts Have to Choose Between Two Events, Both of which are Actually Relevant to the Basis of the Claim, Some Courts Will Choose One, and Others the Other
As well as Adjusting its Quasi-Contracts to Take Account of Public Bodies, French Law Also Distinguishes between Public Law Rules and Public Law Procedure, so that even within the Private Procedure Adjustments can be Made to Take Account of the Public Nature of one of the Parties to the Claim
The 'Absence of Cause' Approach does not Necessarily Provide a Better Solution for Public Body Enrichment Cases
The Need to Accommodate Public Bodies in Private Claims has a Tendency to Change the Rules of Private Law Itself
CONCLUSION
Part 3
Unjust Enrichment and Public Law in the European Union
7—Unjust Enrichment and the EU Institutions
AN EU LAW OF UNJUST ENRICHMENT?
UNJUST ENRICHMENT AS A GENERAL PRINCIPLE OF EU LAW
Staff Cases
Annulment Cases
Three Party Cases
UNJUST ENRICHMENT: ONLY A 'GENERAL PRINCIPLE' OF EU LAW
CONCLUSION
8—Unjust Enrichment in National and European Law, and the 'Remedies' Jurisprudence of the ECJ
HISTORICAL DEVELOPMENT OF THE RELEVANT EUROPEAN UNION LAW
THE MEMBER STATE/EU DIVIDE: REMEDIES IN NATIONAL COURTS FOR BREACH OF EUROPEAN LAW
The Principles of National Procedural Autonomy, Equivalence and Effectiveness, and the Three Phases of the ECJ's Case Law
UNJUST ENRICHMENT AND ULTRA VIRES IN NATIONAL AND EU LAW; TWO DIFFERENT MODELS FOR ANALYSING THE DIVISION OF LABOUR BETWEEN THE MEMBER STATES AND THE EU
Two important factors against Model 2
Cases in which a Member State or a National Intervention Agency Levies Money in Contravention of EU Law
Cases in which an NIA or the EU Pays Out Money in Breach of EU Law which it then Seeks to Recover
IS THERE AN EU LAW 'EVENT' OF ULTRA VIRES IN CASES INVOLVING BOTH EU AND NATIONAL LAW?
CONCLUSION—THE IMPACT OF EU LAW ON NATIONAL UNJUST ENRICHMENT CLAIMS INVOLVING PUBLIC BODIES