England's dreaming equity, trust and conscience - alastairhudson.com

enrichment (Birks and Chambers,Restitution Research Resource, (Mansfield Press,1997)), whereas for Meier and Zimmerman there is only one (Meier andZimmerman (1999) 115 LQR 556).Restitution is not neat: rather it is bedevilled by the uncertainties which are allpart and parcel of any properly functioning system of private law – namely,the need to reach the best result on the facts of any given case.The retreat from restitutionIt seems that there has been a retreat from unjust enrichment, and arestoration of equitable thinking in recent cases. For example, in Niru Batteryv Milestone [2003] EWCA Civ 1446, Sedley LJ and Clarke LJ suggested thatthey considered the doctrine of change of position as being an equitabledoctrine and not a restitutionary doctrine. Similarly in National WestminsterBank v Somer [2002] QB 1286 it seems that the doctrine of change of positionis now to be replaced by a recast, equitable doctrine of estoppel byrepresentation. The loss of change of position to equity-thinking is equivalentto the German army losing Stalingrad: it is suggested that the end of this warbecome inevitable as a result.My approach to restitution is set out generally in the essay on restitution inearlier editions of Equity & Trusts (e.g. 3 rd ed., 2003, Ch.35) and now on:www.alastairhudson.com/trustslaw/restitutionofunjustenrichment. Thefollowing are the key points:o It is not possible to legislate in the abstract with certainty.o Recovery of an enrichment will not compensate the loss suffered bya claimant.o Restitution is a jumble of currently existing odds and ends whichwill cause more confusion by leaving ragged, unattached elementsof equity, etc..o The word “unjust” is given a purely “technical meaning”, whichoverlooks its jurisprudential force (e.g. Rawls, A Theory of Justice).o Restitution has nothing to say about non-pecuniary, nonproprietaryclaims.o Judges require flexibility to achieve fair results.By contrast, in defence of equity, it is suggested in Equity & Trusts, 5 th ed.,Chapter 32 that:o Human beings are fragile and need someone to “listen to theirstory”o The world is fundamentally chaotic and equity is required to meetthat chaos.It is suggested, for example, in Prof Story’s Equity Jurisprudence (1886), 4:the concept of equity was a part even of Roman law in the Pandects, andfurther that “Equity must have a place in every rational system ofjurisprudence, if not in name, at least in substance.” (Story, op cit., 6).9www.alastairhudson.com | © professor alastair hudson