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Change Of Position Notes

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Change Of Position Revision

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1. As restitution expands, the defences have to respond and develop accordingly to prevent too much restitution

2. Ways restitution has expanded: a) acceptance of 'but for' causation test for mistake b) abolition of the mistake of law bar c) willingness to evade the requirement of total failure of consideration

3. The legal burden of proof switches to D once prima facie liability is established


1. Lipkin Gorman v Karpnale - HL recognised it by Lord Goff: I. 'At present I do not wish to state the principle any less broadly than this: that the defence is available to a person whose position has so changed that it would be inequitable in all the circumstances to require him to make restitution, or alternatively to make restitution in full'

2. There is some stuff on the history leading up to accepting this pp. 524-525 (really not relevant I don't think)


1. Commerzbank AG - Munby J interpreted Lord Goff's statement as though he intended that the defence should be based on broad notions of fairness or equality between C and D BUT

2. Lord Goff also said 'the recovery of money is not, as a general rule, a matter of discretion for the court' THUS

3. Philip Collins v Davis - Parker J confirmed that it's not a discretionary defence. Lord Goff was just stating the defence broadly so that subsequent courts could fill in the detail



1. D's circumstance have changed detrimentally

2. The change of circumstances was caused by receipt of the enrichment

3. He is not disqualified from relying on the defence


1. What I. Burrows - Essentially, D has lost the enrichment II. So even though D was initially enriched, the change of position defence responds to the fact that enrichment has subsequently (or in anticipation of the initial enrichment) been countered by causally related loss or detriment so that overall D has not been enriched

2. Birks' Contrary View I. He thought the defence exists to ensure that people are free to dispose II.

of wealth that appears to be theirs BUT this would mean the defence would only where D has made an active decision to change his position (so wouldn't include where money was

stolen from him)

3. Disappointed Expectations I. Aren't included

4. UE is not related to wrong I. Unjust enrichment's imposition of strict liability is merited so long as II.

an inncent defendant is not required to put its hand in its pocket Burrows - Basically, UE is not about correcting a wrong, it's about returning the status quo to both parties (ie. corrective justice). Change

of position recognizes where this is not possible on the defendant's side

5. Irreversibility a. Edelman and Bant - say it's not about disenrichment, it's to protect D's security of receipt. So it's only where D has irreversibly changed his position that he can rely on it BUT b. Burrows - if a rich person is enriched by £100 and then uses other money to bet on a horse (which he wouldn't otherwise have done), he has a


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