The European Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter the Convention) has been in operation for almost 40 years, the Commission and the court for more than 30 years. In the meantime, recourse to Strasbourg has become a built-in mechanism of judicial review in the Member States. In particular, art 25 of the Convention which entitles individuals to plead a violation of the Convention has turned into a corner-stone of a working system of human rights protection, since the court's first decision in 1960. Even though the court's output cannot compare to internal state jurisdictions, applications to Strasbourg have risen dramatically over the years.

‘The National Socialist rulers of Germany invented new ways of controlling the policy and action of other countries without subjecting them to a formal military occupation, and some day it may be necessary for our courts to consider whether conduct equivalent to the German practice of establishing complete and effective domination over professedly neutral countries by insinuating agents and specialist troops into key positions, while permitting their governments nominally to continue to exercise their functions, as a prelude to plunging them into war, amounts to enemy occupation or not’

Lord Diplock, in Orakpo v Manson Investments, used language that indicated that the range of restitution, or unjust enrichment, is limited. Lord Goff, on several occasions, has been more amenable to the idea that, should a remedy be desirable in the circumstances of a particular case, the concept of restitution could, and should be utilised in a creative manner. Canadian judges have been more inclined than those in England to adopt the latter approach. As one of them once said: ‘Just as the categories of negligence are never closed, neither can those of restitution’. In more recent judgments Canadian courts have continued to show their willingness to extend the scope of restitution in two ways: (i) by the enunciation of a general concept of unjust enrichment that underlies the idea of restitution; (ii) by a broader, more innovative use of the traditional doctrine of constructive trust. Both these developments stem from a fundamental premise as to the ‘equitable’ nature of restitution.

One of the interesting facets of the decision of the House of Lords in Murphy v Brentwood District Council is the fresh interpretation which it has placed upon some of the earlier leading authorities. One case which has been subjected to this process of re-interpretation is the decision of the House of Lords in Pirelli General Cable Works Ltd v Oscar Faber & Partners. It was rationalised by Lord Keith as a case which fell ‘within the principle of Hedley Byrne & Co Ltd v Heller & Partners Ltd’. The aim of this short note is to subject this re-interpretation to examination and to suggest that, ironically, its consequence may be the adoption of the very proposition of law rejected by their Lordships in Pirelli, namely that the cause of action accrued on the date on which the damage was discovered or should, with the exercise of reasonable diligence, have been discovered.