Restitution or Property? Priority and Title to Shares in the Conflict of Laws
| Author | John Stevens |
| DOI | http://doi.org/10.1111/j.1468-2230.1996.tb02691.x |
| Published date | 01 September 1996 |
| Date | 01 September 1996 |
September
19961
Macmillan
v
Bishopsgate
been able to persuade the Court that this authority should be distinguished.
The
case in question
(Meadows)
turned on the ability of a reinsurer to obtain a
declaration of non-liability on the part of the original insurer. The plaintiffs
in
that
case had no proprietary interest in the policy. Of course, the plaintiffs
in
D
G
Finance
claimed such an interest and although this was rejected, even on the
analysis of Hobhouse
LJ,
there was a duty to account to them.22 This ought to have
sufficed. Certainly,
Meadows
was distinguishable on this basis, but the plaintiffs
had no opportunity to argue the point.
The
decision in
D
G
Finance
reveals a formalism, both substantive and pro-
cedural, which demonstrates a remarkable contrast, for example, to Lord
Denning’s court. What
the
theorists of adjudication might make of
it
is beyond
the scope of this note.23
Restitution or Property? Priority and Title to Shares in
the Conflict
of
Laws
John
Stevens”
The
recognition of an independent law of restitution, based upon autonomous
unjust enrichment, is now well established and welcome in English law. However,
the precise scope of restitution, and whether claims that are presently explained on
the basis of long-established principles should be reanalysed to fall within its
scope, has yet to be
fully
determined. The appropriate choice of law rules for
restitutionary claims within private international law have also yet to
be
clarified.
22
23
apply in an adversarial common law jurisdiction: see Mann (1977) 93 LQR 370. See
also
the
discussion
in
Andrews,
op
cit
n
15,
para 3-017, p48 at note 73; Van Dijk and Van Hoof,
Theory and
Practice ofrhe European Convention on Human
Righrs
(Netherlands: Kluwer, 2nd
ed,
1990) pp3
18-
320; Robertson and Merrills,
Human
Rights
in
Europe
(Manchester: Manchester University Press, 3rd
ed, 1993) p96;
Feldbrugge
v
Netherlands
(1986)
8
EHRR 425, Series A, vol 99. There is no
inequality of
arms,
both parties being presented with
afair accompli,
but
a
failure ‘to allow proper
participation of the contending parties at any rate during the final and decisive stage of [the]
procedure’;
ibid
para 44. But, for
a
different analysis to the same effect, see now
Borgers
v
Belgium
(1993)
15
EHRR 92, at paras 2629. The position under the ECHR does not appear to have been
considered by any English court, but the practice has been judicially criticised
in
England: see
in
particular
Rahimtoola
v
Nizam
of
Hyderabad
[
19581 AC 379,398, one of the famous clashes between
Viscount Simmonds and Lord Denning; and see also, extra-judicially, Sir Charles Russell, ‘Behind
the Appellate Curtain,’
n
20 above. Judicial practice, however, appears to be inconsistent: see Zander,
The
Law
Making Process
(London: Buttenvorths, 4th
ed,
1994) p346; Paterson,
The
Law
Lords
(London: Macmillan, 1982) pp42-43. For
a
full discussion of the theoretical issues and
a
solution
favourable to the plaintiff in this case, see Andrews, ‘The Passive Court and Legal Argument’ (1988)
CJQ 125.
As
all
parties interested were parties to the proceedings, the circumstances were in any event within
Lord Diplock’s classic statement in
Courier
v
UPOW
[
19781 AC 435,
501.
The decision is strongly
criticised in Zamir and Woolf,
The Declaratory Judgment
(London: Sweet
&
Maxwell, 2nd ed, 1993)
~~48,211.
On substantive formalism, see Stevens,
Law
and Politics
(London: Weidenfeld and Nicolson, 1979)
Chs
10
and
I
I,
especially in relation to the vying judicial approaches of Viscount Simmonds and Lord
Denning; their clash in
Midland Silicones
v
Scuttons
[
19621 AC
446
on the issue of privity in contract
is particularly relevant here: see
op
cit
pp 343-344.
In
Dworkin’s terms, this decision appears to
be
conventionalist: see
Law’s
Empire
(London: Fontana, 1986) Ch 4.
*University of Birmingham.
0
The Modern Law Review Limited
1996
74
1
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