The availability of proprietary restitution in cases of mistaken payments

This article is concerned with the availability of “proprietary restitution” in cases of mistaken payments. It is argued that the mistake of the claimant is an insufficient justification for proprietary restitution, however a close analysis of the case law demonstrates that the presence of additional factors can justify the availability of proprietary restitution in specific circumstances. The basis of proprietary restitution is to be found in the breach of a duty which arises separately from the claim for unjust enrichment. The significant contribution of this article is the analysis that knowledge merely creates a duty to maintain the fund until restitution is made, and that knowledge cannot establish the breach of this duty. Importantly, breach of this duty is established by a second condition which is demonstrated by the wilful misconduct of the recipient. It is this conduct which justifies the imposition of the constructive trust. By adopting this analysis, the proprietary claim in the context of mistaken transfers can be classified as forming part of the law of wrongs, rather than the law of unjust enrichment.

Environmental liabilities in insolvency:an area ripe for reform?

Purpose: The paper examines the question whether legislative reform is the ‘silver bullet’ for the problems generated by the failure of a company which is exposed to claims arising from the non-fulfilment of its environmental obligations. The limited capacity of the United Kingdom insolvency regime to facilitate the fulfilment of a debtor company's environmental obligations is often illustrated with reference to some significant judicial decisions. However, no real picture has emerged of the frequency with which these issues arise, based on which firm proposals for reform could be advanced. This paper argues that greater regard should be paid to existing mechanisms which provide a means of enabling insolvency risks to be managed or minimised, as these point towards the scope for these issues to be resolved through the environmental protection framework rather than through reliance on company and/or insolvency law. Design/methodology/approach: Research was conducted into the statutory and non-statutory regulations (such as statutory guidance), and case law principles, which underpin the treatment of the claims against an insolvent (or potentially insolvent) company resulting from its environmental activities. This included research into policies which have a bearing on this area, developed through governmental and civic consultations and studies. Findings: The paper concludes that the likelihood of a case for legislative reform being made out is weak, and the focus should accordingly shift to strengthening the effectiveness of existing law, policy and practice. Originality/value: This paper is the first (in the United Kingdom context) to challenge the perceived need for reform in this area, engaging with recent examples of such corporate failures and the impact of recent legislative and policy developments.

Understanding change in the public sector:a local authority case study

Increasingly managers in the public sector are being required to manage change, but many of the models of change which are available to them have been developed from private sector experience. There is a need to understand more about how the change process unfolds in the public sector. A case study of change in one local authority over the period 1974-87 is provided. The events surrounding housing decentralisation and the introduction of community development are considered in detail. To understand these events a twofold model of change is proposed: a short wave model which explains a change project or event; and a long wave model which considers how these projects or events might be linked together to provide a picture of an organisation over a longer period. The short wave model identifies multiple triggers of change and signals the importance of mediators in recognising these triggers. The extent to which new ideas are implemented and the pace of their adoption is influenced by the balance of power within the organisation and the political tactics which are used. Broad phases in the change process can be identified, but there is not a simple linear passage through these. The long wave model considers the way in which continuity and change feed off one another. It suggests that periods of relative stability may be interspersed with more radical transformations as the dominant paradigm guiding the organisation shifts. However, such paradigmatic shifts in local government may be less obvious than in the private sector due to the diverse nature of the former.