Soton Equity and Trusts - alastairhudson.com

of what has been called unjust enrichment or unjust benefit, that is to prevent a man from retaining the
money of or some benefit derived from another which it is against conscience that he should keep.”
4.2 The modern development
*Lipkin Gorman v Karpnale [1991] 2 AC 548, per Lord Goff (‘I accept that the
solicitors’ claim [for money had and received] in the present case is founded upon the unjust enrichment
of the club, and can only succeed if, in accordance with the principles of the law of restitution, the club
was indeed unjustly enriched at the expense of the solicitors.’) A claim for common law tracing was also
upheld.
Woolwich v IRC [1993] AC 70 (an incorrect claim for tax is “the paradigm of a case of unjust
enrichment” p.197, per Lord Browne-Wilkinson)
5. What went wrong
5.1 The pivotal case
5.2 The response
Westdeutsche Landesbank v Islington [1996] AC 669
Birks, ‘Trusts raised to avoid unjust enrichment: the Westdeutsche case’ [1996] RLR
3
Hudson, Swaps, Restitution and Trusts (Sweet & Maxwell, 1999)
E.g. Burrows, The Law of Restitution, 2 nd ed.: sees Westdeutsche Landesbank as a
case which advances personal claims in restitution, i.e. money had and received.
A little like being knocked out by a boxer and then claiming to have hurt his fist with
your nose.
6. “Restitution Mk 2”
6.1 Rethinking proprietary unjust enrichment
Do not consider property to have left the claimant if the defendant is unjustly
enriched.
E.g. theft, no property leaves the victim of the crime.
E.g. common law tracing: vindication.
6.2 The means of effecting restitution of unjust enrichment
Birks identifies three approaches to establishing a proprietary claim over property
which has passed from the original, absolute owner to another party.
1. The first is a following claim where the original owner is able to identify the
specific property and say “that’s mine”.
2. The second approach is to establish that the defendant has committed a wrong,
further to a tort of conversion.
3. The third approach would be to establish some unjust enrichment in the current
possessor of that property.
Jettisoning the quadration thesis: Birks, ‘Misnomer’, Cornish et al (eds), Restitution,
Present and Future (Hart, 1998), 1.
6.3 A right necessarily carries its remedy
Birks, ‘Rights, wrongs and remedies’ (2000) OJLS, 1
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