The Law of Subrogation

The Law of Subrogation

The Law of Subrogation

The Law of Subrogation

Synopsis

The doctrine of subrogation, where one party is substituted to the rights of another, is a remedy familiar to all commercial law practitioners. This book seeks to rationalize the position of the doctrine of subrogation within the general law of restitution. Within a systematic analytical framework, it gives a full account of the developing English and Commonwealth law of subrogation, and a selective use is also made of United States decisions. A number of false assumptions which have entered the case-law are exposed, and the principles upon which subrogation should be awarded are set on a regular basis. Subrogation is a remedy which can be awarded in many different contexts, and this definitive account will be useful not only to restitution lawyers, but also to academics and practitioners concerned with the law of property, commercial law, and even family law.

Excerpt

This book is derived from my thesis on the law of subrogation, for which I was awarded a doctorate by the University of London in 1993. I have made some structural changes, removed some historical material, and added some new material to take account of recent developments in the law up to 1 August 1994.

While writing my thesis, it was my great good fortune to be supervised by Professor Peter Birks. He has been exceptionally generous with his time and attention, ready at all times to share his ideas and to comment on my own with insight and sympathy. Both through his teaching and writing on the law of restitution, and through the critical observations he has made on drafts of my thesis, he has influenced the shape and content of this book to a large degree. For these things I owe him a great debt of thanks. My thanks are also due to my examiners, Professor Norman Palmer and Mr Andrew Burrows, for debating several contentious issues arising out of the subject (in respect of which I hope I have given them at least a defensible answer) and for pointing out various errors and infelicities in the text of my thesis (which I have amended accordingly).

I should also like to record my gratitude to a number of colleagues and friends for their help and suggestions: in particular, to His Honour Judge Peter Langan for lending me his copy of his own doctoral thesis on the law of subrogation and contribution, and to Mr Andrew Post for reading my thesis and making various constructive criticisms of it; also to Ms Jane Hanna, Ms Frances Leeper, Mr Ewen McKendrick, Mr Richard O'Dair, Mr Eoin O'Dell, Mr Daniel Orteu, Ms Fernanda Pirie, Ms Patricia Robertson, Professor Francis Rose, Mr Richard Spafford, Mr William Swadling, Ms Lorely Teulon, Professor William Twining and Mr Niall Whitty. A special word of thanks must also go to my wife, Dr Charlotte Mitchell, a reluctant subrogation expert.

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