Restitution - defences

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Author:
luwhat
ID:
222020
Filename:
Restitution - defences
Updated:
2013-06-02 13:58:28
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Restitution defences change position estoppel
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Restitution - defences
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  1. Change of position first recognised as a defence
    Lipkin Gorman v Karpnale 1991 (Lord Goff)
  2. It was said that a broad approach to causation should be taken for change of position
    Commerzbank v Price Jones 2003 - there must be a relevant connection between the payment and the change of position
  3. What did Goff and Jones say about reliance and change of position?
    Allowing restitution for mistake of fact gives claimants wide protection. Change of position needs to be equally wide to protect defendants.
  4. Wide view of reliance recognised by the courts
    Scottish Equitable v Derby 2001
  5. Change of position can also apply where the change of position was made in anticipation of the mistaken payment
    Dextra Bank v Bank of Jamaica 2002
  6. The change of position must be after the payment (overruled)
    South Tyneside v Svenska International 1995
  7. It is not necessary to show exactly how every part of the money has been spent
    RBC Dominion Securities v Dawson 1994 - reasonable approximation is sufficient
  8. What is the position if D has bought property with the money?
    The change of position defence will only cover the difference between the purchase price and the resale price.
  9. Two grounds of disqualification of the defence
    • Illegality (and wrongdoing - Lipkin Gorman)
    • Bad faith (e.g. Cressman v Coys)
  10. Contributory negligence was rejected for change of position
    Dextra Bank v Bank of Jamaica 2002
  11. Estoppel 'all or nothing' defence - case
    Avon CC v Howlett 1983 - estoppel operates as a complete defence only. But it cannot operate where it would be unconscionable for D to retain any of the money, where the detriment is a small proportion of the total.
  12. What is the Avon CC v Howlett (1983) exception to the 'all or nothing' nature of estoppel?
    Estoppel cannot operate where it would be unconscionable for D to retain any of the money - where the detriment is a small proportion of the total.
  13. In what case was the Avon CC v Howlett (1983) exception applied?
    Scottish Equitable v Derby 2001 - D had relied on a representation of C, but only to the extent of £9k out of a total of £172k. Estoppel could not operate.
  14. Change of position effectively makes estoppel a partial defence? E.g. (case)
    Scottish Equitable v Derby 2001 - estoppel couldn't be used because money spent was too little of the total, so change of position was used instead.
  15. Agency 'defence' - minority view
    Only the principal can be sued (agency is always a defence)
  16. Agency 'defence' - majority view
    The agent can be sued unless he has paid the money to his principal in good faith

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