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Sender:
Eoin O' Dell
Date:
Wed, 5 Nov 1997 13:24:03
Re:
HL decides Kleinwort Benson v Glasgow DC

 

Hello all

Though I am sure that most of you will already have heard, I have just noticed on the House of Lords Server that judgment was given last week in Kleinwort Benson Limited v. City of Glasgow District Council on the question whether restitution claims are governed by the general rule as to jurisdiction in Art 2 of the Brussels convention, or are subject to the special rules in Art 5(1) on matters relating to contract or Art 5(3) on matters relating to tort, delict or quasi-delict. The Court of Appeal by a majority had held that the restitution claims arising out of void swaps contracts came within the special Art 5(1) jurisdiction. On 30 October 1997, the House of Lords (Lords Goff, Clyde and Hutton; Lords Mustill and Nicholls dissenting) have allowed the appeal. It seems to me that the ratio of Lord Goff's judgment and of the majority in the case is in the following clearly argued and compelling paragraph:

"In truth, the claim in the present case is simply a claim to restitution, which in English law is based upon the principle of unjust enrichment; and claims of this kind do not per se fall within Article 5(1). The vast majority of claims to restitution, are founded simply upon the principle of unjust enrichment. Such is, in my opinion, the present case. No express provision is made in Article 5 in respect of claims for unjust enrichment as such; and it is legitimate to infer that this omission is due to the absence of any close connecting factor consistently linking such claims to any jurisdiction other than the defendant's domicile. Article 2 therefore provides the appropriate jurisdiction for such claims."

The full text is at

http://www.parliament.the-stationery-office.co.uk/ pa/ld199798/ldjudgmt/jd971030/klein01.htm

Best to all

 

Eoin

EOIN O'DELL
Barrister, Lecturer in Law
Trinity College
Dublin 2
Ireland
ph (+ 353 - 1) 608 1178
fax (+ 353 - 1) 677 0449
Live Long and Prosper !!
(All opinions are personal; no legal responsibility whatsoever is accepted.)


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