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Jason Neyers
Fri, 23 Nov 2007 11:28:38 -0500
Deceit: damages and account


Dear Charles:

Corrective Justice, sorry to have been so lazy.

English law does believe in juristic reasons (since it is the most coherent generalization of the liability imposed) it just hasn't explicitly caught up to what is implicit in itself yet. :). Think of negligence law immediately prior to Donoghue v Stevenson.

A history question (since I am painfully ignorant of these matters): when plaintiffs asked for money had and received in the 1800s cases cited were they limited to the amount that they gave (restitution for unjust enrichment) or could they also get the gain from whatever source (restitution for wrongs/disgorgement)?

From the winter wonderland that is London, Ontario.


----- Original Message -----
From: Charles Mitchell
Date: Friday, November 23, 2007 11:10 am
Subject: Re: RE: deceit: damages and account

I'm sorry, Jason, I know I'm being thick but I’ve been racking my brains and I can't think what CJ means - in mitigation it's Friday afternoon - but when you tell me I'll give myself three kicks.

So far as your 2nd point goes, I don't think that it's consistent with the HL's explanation of waiver of tort in United Australia Ltd v Barclays Bank Ltd [1941] AC 1, e.g. at 13 per Viscount Simon LC: ‘Where "waiving the tort" was possible, it was nothing more than a choice between possible remedies [sc: for the tort] derived from a time when it was not permitted to combine them or to pursue them in the alternative, and when there were procedural advantages in selecting the form of assumpsit.’ And again at 18: ‘When the plaintiff "waived the tort" and brought assumpsit, he did not thereby elect to be treated from that time forward on the basis that no tort had been committed; indeed, if it were to be understood that no tort had been committed, how could an action in assumpsit lie? It lies only because the acquisition of the defendant is wrongful and there is thus an obligation to make restitution.’ Lord Atkin says the same at 27-9.

Also as you know we do not believe in absence of juristic reason in England - at any rate Lord Hoffmann does not although the higher authority of P Birks and now R Stevens may yet win the day.

Jason Neyers
Associate Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

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