Unjust Enrichment in the ‘Fairchild Enclave’ International Energy Group Ltd v Zurich Insurance plc
| DOI | http://doi.org/10.1111/1468-2230.12306 |
| Published date | 01 November 2017 |
| Date | 01 November 2017 |
applicants, that there were ‘compelling reasons’ for the restriction on access to
alawyer,
97 and that:
. .. notwithstanding the delay in affording the first three applicants access to legal
advice and the admission at trial of statements made in the absence of legal advice,
the proceedings as a whole in respect of each applicant were fair.98
There was thus no violation of Article 6. With respect to the fourth ap-
plicant, as noted above, the ECtHR found a violation of Article 6(1) and
Article 6(3)(c).99 In addition to finding this violation, the ECtHR ordered the
United Kingdom to pay the fourth applicant €16,000 ‘in respect of costs and
expenses’.100
In many respects, the Ibrahim decision is remarkable: a majority of the Grand
Chamber of the ECtHR unequivocally rejectthe impor tance of rights explicitly
guaranteed by Article 6(2) and Article 6(3), and embrace the proposition that
fair trial r ights may be balanced away in the interests of fighting terrorism. If
the ECtHR wishes to convert Article 6 into a simple, two-word ‘fair trial’
guarantee, under which the assessment of every alleged violation boils down
to whether or not the overall proceedings were fair, then it ought to make
that clear. Moreover, the ECtHR does not so much as acknowledge significant
contrary case law, or explain how Ibrahim sits alongside that case law. It is to be
hoped that much greater clarity on these matters will be forthcoming in future
cases.
Unjust Enrichment in the ‘Fairchild Enclave’:
International Energy Group Ltd vZurich Insurance plc
K. V. Krishnaprasad∗
In International Energy Group vZurich Insurance, the Supreme Court considered the implications
of the special rule in Fairchild vGlenhaven Funeral Services Ltd for insurers’ of employers’ liability.
The question for the Court was whether, in the light of its earlier decision in Durham v
BAI (Run off) Ltd, insurers could be held liable for employees’ mesothelioma claims, even
if the employer was not insured throughout the period of employment. The seven Justices
unanimously held that insurers’ liability was proportionate to the period of insurance. In reaching
that result, the majority recognised that the insurers wereentitled to ‘equitable recoupment’ from
97 ibid at [279].
98 ibid at [294].
99 ibid at [311]; cf [251].
100 ibid at [3(a)] of the Orders.
∗DPhil Candidate in Law, University of Oxford. I am grateful to Professor Robert Stevens, V.
Niranjan, Mihir Naniwadekar and the anonymous reviewers for their comments. All errors are mine.
1150 C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited.
(2017) 80(6) MLR 1137–1163
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