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Charter Plc V. City Index Notes

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CHARTER

PLC V.

CITY INDEX

FACTS Between February 2000 and August 2004 the claimants in the action (whom I shall refer to compendiously as "Charter") were defrauded of large sums by a manager in their foreign exchange department ("Mr Chu"). He procured the transfer of sums to the aggregate value of over PS9m to the defendant ("City Index") to finance his personal spread-betting transactions. In April 2005 Charter began proceedings against City Index. They alleged that the sums transferred from August 2000 were received by City Index with knowledge of breach of trust or fiduciary duty by Mr Chu; that it was "unconscionable" for City Index to use them to finance his spread-betting; and that City Index were accordingly "liable to account to the claimants as constructive trustee of those funds". In February 2006 the claim was settled on payment by City Index of PS5.5m. Meanwhile City Index had begun Part 20 proceedings against some past and present directors of Charter and the group auditors claiming contribution or indemnity under the 1978 Act. HOLDING CRANWORTH LJ Is liability for 'knowing receipt' covered by the 1978 Act?
There followed the short passage cited by Lord Steyn (quoted above), including the statement that a claim for restitution "cannot be said" to be a claim to recover "compensation". As a general statement this seems, with respect, to go too far, at least where the restitutionary claim is for no more than the amount of the loss suffered by the claimant. There is no doubt that the language of "compensation" can be, and is often, used to describe such claims. As Sir Andrew Morritt C pointed out [2007] 1 WLR 26, paras 29-31 it is not difficult (nor particularly helpful) to prepare rival lists of quotations (from statements of high authority) showing alternative uses of the terms "restitutionary" and "compensatory" (cf the use of "recompense" in Lord Nicholls's article mentioned in para 7 above) in this context.... It seems unlikely that the draftsman of the 1978 Act intended its application to depend on such subtle distinctions of nomenclature. For completeness I note that this issue was touched on by this court in Niru Battery Manufacturing Co v Milestone Trading Ltd (No 2)[2004] 2 All ER (Comm) 289 (discussed below). However, the court did not find it necessary to rule on that aspect of the case, and it was in any event common ground that the court remained

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