Soton Equity and Trusts - alastairhudson.com

Elias, Explaining Constructive Trusts (Clarendon Press, 1990) considered that one
of the bases on which the constructive trust might arise is to effect restitution but that
there were other bases too.
See, however, Lord Browne-Wilkinson in Westdeutsche Landesbank v Islington:
‘Although the resulting trust is an unsuitable basis for developing proprietary restitutionary remedies,
the remedial constructive trust, if introduced into English law, may provide a more satisfactory road
forward.’ ([1996] 2 All E.R. 961, 999).
4. Subrogation
A part of unjust enrichment says Mitchell, The Law of Subrogation (Oxford: OUP,
1994).
Banque Financiere v. Parc (Battersea) Ltd [1999] 1 AC 221: although the House of
Lords failed to realise that subrogation is meant to effect restitution, not that there is
a call for restitution and therefore subrogation is one of a choice of remedies.
E. Sceptical perspectives on unjust enrichment
1. How is restitution thinking better than conscience thinking?
The fundamental question is whether restitution does offer a more coherent reordering
of equity and common law: what of express trusts? Specific performance?
Interim injunctions? Trusts of homes? Restitution of unjust enrichment has nothing
(certainly not yet) to say about these areas.
Many cases taken to be foundational in restitution of unjust enrichment are actually
cases on equity, e.g. Moses v Macferlan (1760) 2 Burr 1005. So, most of this
restitution of unjust enrichment scholarship is prescriptive, not descriptive.
2. Hedley’s approach
See S Hedley, “The taxonomic approach to restitution”, in Hudson ed., New
Perspectives on Property, Obligations and Restitution, Cavendish Publishing,
2004:-
‘Indeed, a noticeable recent tendency [in restitution scholarship] has been to accuse
equity lawyers of being no better than Nazis. This (slightly surprising) argument
relies on the point that, like one famous Nazi, they sometimes appeal to conscience.
It appears that Reinhard Heydrich, chief of the Gestapo and director of the ‘final
solution’, once used justified his conduct by reference to his conscience.
“For the fulfilment of my task I do fundamentally that for which I can answer to my
conscience ... I am completely indifferent whether others gabble about breaking the law”
(Quoted in AH Campbell ‘Fascism and legality’ (1946) 62 LQR 141, 147).
This is, apparently, too uncomfortably close to the reasoning employed by others
who do not subscribe to restitution of unjust enrichment.’
The accusation was initially made against ‘beginners’ and ‘the young’ (P Birks
‘Trusts raised to reverse unjust enrichment: The Westdeutsche case’ [1996] RLR 3,
20-21), though it was soon made also against law teachers generally, or at least those
of them who are ‘realists or post-realists’.
Opposition to restitution of unjust enrichment is thought to risk ‘persecutions and
pogroms every time the community’s conscience is set on fire by some passing
demagogue’ (P Birks ‘Equity in the modern law: An exercise in taxonomy’ (1996)
26 WALR 1, 98).’
3. Hudson’s approach
See generally the essay on restitution in earlier editions of Equity & Trusts and now
on www.alastairhudson.com/trustslaw/restitutionofunjustenrichment
The following are the key points:
o It is not possible to legislate in the abstract with certainty.
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