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7. “Restitution Mk 3”
7.1 The mistake analogy
Peter Birks, Unjust Enrichment (2 nd ed, Clarendon Press, 2005)
This book was, tragically, published posthumously and so we must extrapolate from
it what it might have meant for the future of restitution.
8. Where is restitution now?
8.1 Recent case law
There are fewer cases decided recently citing “unjust enrichment” on LexisNexis
than one might have expected.
Nevertheless, among the academics it is still thriving: see Neyers, et al (eds)
Understanding Unjust Enrichment (Hart, 2004) and Hudson (ed), New Perspectives
on Property, Obligations and Restitution (Cavendish, 2004).
NEC Semi-Conductors Ltd v Revenue and Customs Commissioners [2006] EWCA
Civ 25, [2006] All ER (D) 252; (the most recent case at the time of writing; citing the view that
an incorrect claim for tax is “the paradigm of a case of unjust enrichment” p.197, per Lord Browne-
Wilkinson).
8.2 A retreat from unjust enrichment, and a restoration of equitable thinking?
Niru Battery v Milestone [2003] EWCA Civ 1446, per Sedley LJ and per Clarke LJ:
difficulties with change of position as being, perhaps, an equitable doctrine
National Westminster Bank v Somer [2002] QB 1286: is change of position now to be
replaced by estoppel by representation?
8.3 Is the principle of unjust enrichment merely a part of natural justice and so a part of equity?
See e.g. Moses v Macferlan below at C2.
C. Restitution and the Law of Obligations
1. The early cases – looking for the matrix
Moses v Macferlan (1760) 2 Burr 1005, per Lord Mansfield CJ:
‘[The action for money had and received] 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.’
Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32, HL
(approving the above)
2. Thinking Moses v Macferlan through again
The speech delivered by Lord Mansfield begins: “The action for money had and received, an
equitable action to recover money which the defendant ought not in justice to keep …” In what way
is this (a) restitutionary or (b) to do with the common law? (It is the list of claims
that matters.)
What is particularly interesting is that the judges in these cases do not use the
expression “unjust enrichment” – instead they talk of “equity”: rather the
restitutionists have reinterpreted these cases to fit their matrix.
3. The theory of the law of obligations
In any of the following categories of case (taken broadly from Goff and Jones’ The Law of
Restitution), it is said that if the defendant takes an enrichment as a result of this list of
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