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Amstrong V. Winnington Network Ltd Notes

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AMSTRONG V. WINNINGTON NETWORKS LTD.

FACTS Armstrong is a company with its registered office in Germany. It is a producer of PVC and linoleum floor coverings and is part of a group of companies owned by Armstrong World Industries Inc, a US listed company. Winnington is a company registered in England with a head office in Crewe. It is engaged in the business of facilitating the supply and distribution of new and high demand technology products. Negotiations on behalf of Zen: On 25 January 2010, a Mr Bhovinder Singh, claiming to represent a company in Dubai called Zen Holdings Limited ("Zen") contacted Winnington to inquire whether it was interested in trading EUAs with Zen. Further conversations and emails ensued between Winnington and Zen and Mr Singh on that day and on 26 January 2010. Fraudulent Transfer: On 28 January 2010, 21,000 EUAs owned by Armstrong were transferred from Armstrong's Delmenhorst account with the German Registry into Winnington's account with the UK Registry. That transfer was done without the authority of Armstrong and was the result of a "phishing" email fraud perpetrated upon Armstrong. On the same day, Winnington agreed to purchase 21,000 EUAs from Zen Holdings Limited ("Zen") for a price of EU267,645 ("the Transaction"). Pursuant to that agreement to purchase, at 1130am on 28 January 2010 Winnington received into its account the 21,000 EUAs transferred from Armstrong's account. At that point in time, Winnington did not know that the holder of the account from which the EUAs had been transferred was Armstrong (as opposed to Zen or anyone else). Winnington then immediately sold on the 21,000 EUAs through TFS Green at a price of EU272,500. At between 1318 and 1330 on the same date, Winnington effected payment of the purchase price to Zen to the latter's bank account with Standard Chartered Bank ("SCB") in Dubai. Amstrong's claim: Armstrong's essential claim on the facts is that Winnington's due diligence procedure (known as "KYC") was insufficient and was not followed through, that at the point of entering and concluding the Transaction, Winnington knew very little about the counterparty Zen, and that in all the circumstances it knew or consciously closed its eyes to the risk that the Transaction was fraudulent or improper or alternatively that it knew of circumstances which would have led a reasonable person in its position to have made further inquiries.

Winnington's claim: Winnington's case on the facts is that it did not know that the Transaction was fraudulent and that there was nothing inherently suspicious about the Transaction or the lead up to its conclusion. Accordingly Winnington did not have relevant "notice" nor was its conduct "unconscionable" or other than in good faith.

HOLDING Nature of EUA as property There is no dispute between the parties that EUAs are capable of constituting, and do constitute, property as a matter of law. As a matter of substance, I do not consider that the holder of an EUA has a "right" which he or she can enforce by way of civil action. It is not a "right" (in the Hohfeldian sense) to which there is a correlative obligation vested in another person. It does not give the holder a "right" to emit CO2 in this sense. Rather it represents at most a permission (or liberty in the Hohfeldian sense) or an exemption from a prohibition or fine. But for the entitlement to the EUA, the holder would either be prohibited from emitting CO2 beyond a certain level or at least would be required to pay a fine if he did so. In this way, the holding of the EUA exempts the holder from the payment of that fine. Rather I am satisfied that an EUA is "intangible" property... Thus in my judgment, applying the three fold test identified by Morritt LJ in In re Celtic Extraction leads to the conclusion that an EUA is certainly "property" and intangible property under the statutory definition there in place. First, there is, here, a statutory framework which confers an entitlement on the holder of an EUA to exemption from a fine. Secondly, the EUA is an exemption which is transferable, and expressly so, under the statutory framework. Thirdly the EUA is an exemption which has value. Nature of claims - proprietary claim and personal claim unjust enrichment?
Mr Harris puts Armstrong's case for "restitution" at common law on two distinct bases: a "proprietary restitutionary claim" to vindicate the claimant's persisting legal property in the EUAs, and alternatively, a claim in restitution for "unjust enrichment". Restitution for unjust enrichment is based upon the notion that the defendant has been "enriched" at the claimant's expense. It gives rise to a personal remedy to disgorge or pay the amount of the

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