"In the circumstances, it is for the claimants to specify the nature and basis of their actions (whether they are actions for restitution or actions for compensation for damage), subject to the supervision of the national court."
"Mr Glick commented in argument, and I agree, that, on the basis of the judgment, a restitutionary remedy and a compensatory remedy would both produce the same result, since both of them look to the same thing: what the taxpaying company has lost by reason of having to pay tax early, not what the government has gained."
"The money in question was paid in error under a mistake of fact. It was therefore reclaimable, unless (the pursuer's remedy being equitable) there was an equitable defence to repetition."
"Thus a right to restitution is a right to a gain received by the defendant, while a right to compensation is a right that the defendant make good a loss suffered by the claimant. The word 'restitution' is not entirely happy in this partnership with 'compensation'. It has had to be manoeuvred into that role. 'Disgorgement', which has no legal pedigree, might be said to fit the job more easily and more exactly."
"By insisting, artificially but firmly, on an enlargement of the everyday sense of 'restitution' we avoid being accidentally trapped by the choice of a word into believing that the answer must be yes. If 'restitution' meant 'giving back', no other answer would be possible. The larger meaning leaves the matter open. An alternative strategy to the same effect would be to switch from 'restitution' to 'disgorgement', which has no restrictive overtone."
"Given the objective of restoring the situation existing before the aid was unlawfully granted, and in accordance with general financial practice, the recovery interest rate to be fixed by the Commission should be annually compounded."
"It considers that only capitalisation of interest by the compound interest method will result in the neutralisation of the economic advantage from which Crédit Mutuel has benefited."
'The mere fact that the sole object of such an action is the payment of interest equivalent to the financial loss suffered as a result of the loss of use of the sums paid prematurely does not constitute a ground for dismissing such an action. While, in the absence of Community rules, it is for the domestic legal system of the member state concerned to lay down the detailed procedural rules governing such actions, including ancillary questions such as the payment of interest, those rules must not render practically impossible or excessively difficult the exercise of rights conferred by Community law.'
'If a plaintiff pleads and can prove that he has suffered special damage as a result of the defendant's failure to perform his obligation under a contract, and such damage is not too remote on the principle of Hadley v Baxendale (1854) 9 Exch 341, I can see no logical reason why such special damage should be irrecoverable merely because the obligation on which the defendant defaulted was an obligation to pay money and not some other type of obligation.'
'If it is plain and obvious to all and sundry that loss would be suffered in the event of late payment, it cannot be recovered; but if the loss only results from peculiar circumstances known to the two parties to the contract, it can be.'
'Both parties accept that compound, as opposed to simple, interest is payable only if the council received the money under the void interest rate swaps agreement as fiduciary …'
"… it is for the domestic legal system of each member state … to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law, provided, first, that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and, second, that they do not render virtually impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness)"
"In the main proceedings, however, the claim for payment of interest covering the cost of loss of the use of the sums paid by way of [ACT] is not ancillary, but is the very objective sought by the claimants' actions in the main proceedings. In such circumstances, where the breach of Community law arises, not from the payment of the tax itself but from its being levied prematurely, the award of interest represents the 'reimbursement' of that which was improperly paid …"
"Restitution for loss of use of sums so paid is to be calculated on the basis of the actual loss suffered by the plaintiff … and/or on the basis of the return which the plaintiff could have achieved by investing the sums so paid on the basis of a compound return and/or on the basis of the return which the defendants … did or could have achieved by investing the sums so paid and/or on the basis of the saving which the defendants … achieved by not having to borrow sums equivalent to the sums so paid"
"At all material times it is to be inferred that: [the Revenue] did or could have invested the sums paid to them by the plaintiff by way of ACT on the basis of a compound return; and/or [the Revenue] by reason of having been paid the said sums will have been saved the expense of borrowing sums on a compound basis"
"(A) Where an amount of advance corporation tax ["
"The current system of awarding interest is muddled and out-of-date. It is difficult to justify to litigants, and gives the impression that the legal system is living in the past."
"One would expect to find, in any developed system of law, a comprehensive and reasonably simple set of principles by virtue of which the courts have power to award interest … . Sadly, however, that is not the position in English law."
"It is a rule sanctioned by the practice of more than half a century, that money lent does not carry interest."
"The issue here is not about interest on damages but about interest as damages."
"This kind of equitable action, to recover back money, which ought not in justice to be kept, is very beneficial, and therefore much encouraged. It lies for money which, ex aequo et bono , the defendant ought to refund; it does not lie for money paid by the plaintiff, which is claimed of him as payable in point of honour and honesty, although it could not have been recovered from him by any course of law; as in payment of a debt barred by the Statute of Limitations, or contracted during his infancy, or to the extent of principal and legal interest upon an usurious contract, or, for money fairly lost at play: because in all these cases, the defendant may retain it with a safe conscience, though by positive law he was barred from recovering. But it lies for money paid by mistake; or upon a consideration which happens to fail; or for money got through imposition, (express or implied) or extortion; or oppression; or an undue advantage taken of the plaintiff's situation, contrary to laws made for the protection of persons under those circumstances. In one word, the gist of this kind of action is, that the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity, to refund the money."
"And it has been very lately determined, that in an action for money had and received, the plaintiff can recover nothing but the net sum received without interest. Walker v Constable (1798) 1 Bos & Pul 306. It seems however difficult to reconcile these two decisions, more especially the last, to the principles of general reasoning. Where one party, by his refusal to complete a contract, gives the other a right to treat the contract as [a] nullity; why should that right, which is allowed in its nature, be restricted in its extent? And though a recovery of incidental damages for the non-performance of a contract, would be repugnant to the nature of an action founded upon the disaffirmance of such contract, it is by no means a necessary consequence of that principle, that damages should not be allowed in respect of the interest of the money improperly detained; and this observation, in respect of the action, as it is brought for restitution of money unduly paid, and which is founded upon a legal fiction, will be more forcible where the allegation, which is commonly formal, is literally true: when money is actually received by one man for the use of another, and instead of being paid over, is placed at interest, or employed in business: but if there is a technical rule which governs the action in general, it would be incorrect to dispense with the application of it in particular cases."
"Buller J, that the plaintiff might perhaps be entitled to recover interest under the count for money had and received. Adair having again mentioned the case this day, The Court were of opinion, on the authority of Moses v Macferlan 2 Bur 1005, that in an action for money had and received the Plaintiff could recover nothing but the net sum received without interest."
"One great benefit, which arises to suitors from the nature of this action, is, that the plaintiff needs not state the special circumstances from which he concludes 'that, ex aequo et bono , the money received by the defendant, ought to be deemed as belonging to him:' he may declare generally 'that the money was received to his use;' and make out his case, at the trial. This is equally beneficial to the defendant. It is the most favourable way in which he can be sued: he can be liable no further than the money he has received; and against that, may go into every equitable defence, upon the general issue; he may claim every equitable allowance; he may prove a release without pleading it; in short, he may defend himself by everything which shews that the plaintiff ex aequo et bono , is not entitled to the whole of his demand, or to any part of it."
"Lord Ellenborough said, that the rule proposed, of considering how far the plaintiff was damnified was so wide, that it would let in interest in almost every case, and it afforded no assistance in drawing a line between cases where interest should be allowed, and where it should be refused. If the party lost the use of his money, it was his own fault in not suing for it. He thought, that where money of the plaintiff had come to the hands of the defendant, to establish a right to interest upon it, there should either be a specific agreement to that effect, or something should appear from which a promise to pay interest might be inferred, or proof should be given of the money being used."
"The rule has been laid down in so many cases, that interest cannot be recovered unless it be expressly reserved by the contract between the parties, or the payment of it is to be implied from the course of dealing between them, that it is unnecessary to refer to them."
"The learned counsel for the defendant pointed out that fraud had not been proved in the action. But the learned judge held that it was unnecessary to go into that point, as the defendant admitted 'receiving the money by mistake or as overpayment.' Consequently he thought the law would 'imply a promise from defendant to pay back to the plaintiff the money paid in excess.' He thought the allegation of special damage in the statement of claim sufficient, and gave 'judgment for the plaintiff for£428.13 s.3d. damages by way of interest without costs.' Having regard to the law as settled by the judgment of the House of Lords in the case of London, Chatham and Dover Ry Co v South Eastern Ry Co it is impossible to support the decision of the Acting Chief Justice on the ground upon which it was rested."
"Passing London, Chatham like ships in the night, these cases proceeded upon the obvious principle that, when A retains money owned by or owing to B over a period of time, A derives a benefit (at B's expense) usually measurable by what A would have had to pay in the market to borrow that sum for that period. Since this benefit is derived without justification and at the expense of the person to whom the principal sum was due, we should now recognise it as an unjust enrichment. It stands independently of, but appurtenant upon the obligation to pay, the 'principal' sum."
"in the present cases, it is precisely the interest itself which represents what would have been available to the claimants, had it not been for the inequality of treatment, and which constitutes the essential component of the right conferred on them."
"Where a subsidiary resident in one member state has been obliged to pay advance corporation tax in respect of dividends paid to its parent company having its seat in another member state even though, in similar circumstances, the subsidiaries of parent companies resident in the first member state were entitled to opt for a taxation regime that allowed them to avoid that obligation, article 52 of the Treaty requires that resident subsidiaries and their non-resident parent companies should have an effective legal remedy in order to obtain reimbursement or reparation of the financial loss which they have sustained and from which the authorities of the member state concerned have benefited as a result of the advance payment of tax by the subsidiaries. The mere fact that the sole object of such an action is the payment of interest equivalent to the financial loss suffered as a result of the loss of use of the sums paid prematurely does not constitute a ground for dismissing such an action. While, in the absence of Community rules, it is for the domestic legal system of the member state concerned to lay down the detailed procedural rules governing such actions, including ancillary questions, such as the payment of interest, those rules must not render practically impossible or excessively difficult the exercise of rights conferred by Community law."
"81. It must be stressed that it is not for the Court of Justice to assign a legal classification to the actions brought by the claimants before the national court. In the circumstances, it is for the claimants, to specify the nature and basis of their actions (whether they are actions for restitution or actions for compensation for damage), subject to the supervision of the national court."
"87. In the main proceedings, however, the claim for payment of interest covering the cost of loss of the use of the sums paid by way of [ACT] is not ancillary, but is the very objective sought by the claimants' actions in the main proceedings. In such circumstances, where the breach of Community law arises, not from the payment of the tax itself but from its being levied prematurely, the award of interest represents the 'reimbursement' of that which was improperly paid and would appear to be essential in restoring the equal treatment guaranteed by article 52 of the Treaty. 88. The national court has said that it is in dispute whether English law provides for restitution in respect of damage arising from loss of the use of sums of money where no principal sum is due. It must be stressed that in an action for restitution the principal sum due is none other than the amount of interest which would have been generated by the sum, use of which was lost as a result of the premature levy of the tax. 89. Consequently, article 52 of the Treaty entitles a subsidiary resident in the United Kingdom and/or its parent company having its seat in another member state to obtain interest accrued on the [ACT] paid by the subsidiary during the period between the payment of [ACT] and the date on which [MCT] became payable, and that sum may be claimed by way of restitution."
"That is very probable, but there is no proof of it"
"… compound interest evokes deep-seated fears. Where people are too poor even to service a loan, interest can become 'a slippery slope to a situation of hopeless debt'. Where interest is compound, interest increases in an exponential rather than a linear way, which can make the calculation appear frightening and unpredictable."
"46 ….. the claim for interest attributable to the post-utilisation period is different. It is truly ancillary: it is a claim for interest on the primary loss, and it is a claim for interest over the period between the time when the primary loss accrued and the time when judgment is given for the primary loss to be paid to Sempra by way of restitution or compensation. It may seem anomalous that Sempra's recovery for the period from payment of the ACT until utilisation is in an amount computed by reference to compound interest, but its recovery for the period from utilisation until judgment is in an amount computed by reference to simple interest. However, the anomaly lies in the wording of s.35A of the 1981 Act. That section is the source of the claim for interest for the post-utilisation period, and it plainly restricts the interest to simple interest."
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