BCL Law Notes Restitution of Unjust Enrichment Notes
A comprehensive guide to some of the key topics in the Restitution of Unjust Enrichment module taught on the BCL (but would also be useful for other similar courses).
It includes case summaries, various academic positions and a thorough analysis of some of the key debates within the topic in an easy digestible manner.
It focuses on contributions to this area of law from Andrew Burrows, Graham Virgo and Peter Birks, amongst others. ...
The following is a more accessible plain text extract of the PDF sample above, taken from our Restitution of Unjust Enrichment Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
ENRICHMENT ESSAY
OPENING
BATTERSEA
First limb of Battersea for an unjust enrich claim is whether D received a benefit (per Lord Steyn). This means D received value.
SUBJECTIVE DEVALUATION
Coined by Birks
Even if D has been objectively benefitted (ie. a reasonable man could regard himself as benefitted by what has occurred, or, put another way, C’s ‘performance’ has a market value), D may validly argue that the benefit has no value to him.
It has been explicitly referred to in a number of cases like Cressman v Coys and Sempra Metals
2 STAGE TEST
Benedetti v Sawiris (SC) – in leading judgment Lord Clarke seemingly proposed a 2 stage test for establishing benefit (at 34):
what was the objective value of the benefit (ie. the price which a reasonable person in the defendant’s position would have had to pay for the services’)
Is it permissible to reduce this value to reflect D’s subjective views? (hence subjective devaluation)
These two stages serve to answer the overriding concern, stated by Lord Clarke [at para 11]: ‘The question remains what is the value of the unjust enrichment’
OBJECTIVE BENEFIT
Benefit can be positive or negative.
Positive benefit
I do something which directly gives you value
Eg. receipt of money, personal right to payment of a debt, improvements to land
Negative benefit
I do something which saves you money
Eg. receipt of services, use of another’s land
Gibb v Maidstone – also includes discharge of a legal obligation
Services
There are a number of different approaches:
Burrows
services have objective benefit from the moment they are received
So if it’s cutting your hair, the moment the first locks of hair are cut you’ve received benefit
Birks
services have object benefit from the moment they commence
Planche v Colburn – so C was contracted to write a book for D but tendered no part of it before contract was terminated for D’s breach. C was entitled to payment. Birks sees this as UE case
Burrows – describes this as an ‘unrealistic and overinclusive notion of benefit’ but ME I actually like it
Beatson
he dismisses pure services. So a haircut is not an objective benefit. He only values services that produce an end result (like a house). BUT
Cobbe v Yeoman’s Row – Lord Scott confirmed that the question is the value of the services themselves, not of any end-product THUS
Burrows – this is an underinclusive notion of benefit
OVERCOMING SUBJECTIVE DEVALUATION
As the law does cater for the individuality of value (by recognising subjective devaluation) there are several ways of overcoming D saying that he did not value the benefit received. Here are all the approaches to overcome D saying this:
TEST 1: INCONTROVERTIBLE BENEFIT
What is it?
It means that objective benefits that are so obviously beneficial that, irrespective of any conduct of D indicating choice, one would regard D as benefitted SO
No reasonable man could seriously deny that he has been benefitted so subjective devaluation is not relevant (eg. with money)
Approved
BP Exploration v Hunt – this concept received explicit approval
Different from other tests
unlike the other tests for overcoming subjective devaluation as it does not consider D’s conduct
Before or After Receipt
Cressman v Coys – test was determined by examining indicators of benefit after the enrichment BUT
Burrows – suggests that the usual approach is to consider indicators of benefit in acquiring the benefit AS APPROVED IN
BP Exploration v Hunt
Incontrovertible Benefit as a Presumed Benefit?
Misleading Term
Burrows suggests that the term ‘incontrovertible’ benefit suggests it cannot be rebutted AS PROFESSOR STEVENS SUGGESTS
‘It is impossible to controvert what is incontrovertible’
Always Rebuttable?
There will always be occasions where D can argue that the receipt of a benefit (including money) had less value to them FOR EXAMPLE
Burrows – if D has received money from C, he could argue that he received no benefit still as this payment meant a 3rd party didn’t pay him instead THUS
Burrows suggests it’s better to look at it as more of a presumption
Supported By Case Law?
Arguably Sempra Metals (HL) – in that their Lordships spoke of it being ‘presumed’ that the opportunity to use C’s money was beneficial, having regard to subjective devaluation to take account of D’s own circumstances (ie. that it was a government body which could borrow at lower rates than the commercial rate) EXPLAINED IN LAYMAN’S:
Sempra Metals, the government (D) took C’s money under advance corporation tax and kept it, despite it being contrary to the EC Treaty. When C claimed for the use of the money (ie. it was basically a huge interest-free loan) there was a presumption that this was incontrovertibly beneficial. But, the government could overcome this by highlighting how they could have borrowed money at a lower rate if they’d wanted by issuing Treasury bonds BUT
Lord Reed’s view in Benedetti that Sempra Metals was not about subjective devaluation!
Change of Position
The alternative view Burrows suggests is that in the example above, D could rely on change of position to avoid restitution. He says that whether this is dealt with through change of position or at the enrichment stage makes no difference ie. ‘the same answer ought to be reached’
ME:
This change of position approach is the better view. BECAUSE
Incontrovertible Benefit should mean that this is a benefit regardless of who received it. Thus, there is no need to take account of D’s subjective factors (which subjective devaluation hinges on). And thus, that is how it overcomes subjective devaluation. But, where D can still raise subjective factors to overcome this argument, then it diminishes the meaning of this approach THUS
It maintains the neatness of viewing it as a irrefutable ALSO
It means the burden of proof is on D to show factors which make money not an enrichment to him (which should be narrow and logically should be on D to prove, as...
Buy the full version of these notes or essay plans and more in our Restitution of Unjust Enrichment Notes.
A comprehensive guide to some of the key topics in the Restitution of Unjust Enrichment module taught on the BCL (but would also be useful for other similar courses).
It includes case summaries, various academic positions and a thorough analysis of some of the key debates within the topic in an easy digestible manner.
It focuses on contributions to this area of law from Andrew Burrows, Graham Virgo and Peter Birks, amongst others. ...
Ask questions 🙋 Get answers 📔 It's simple 👁️👄👁️
Our AI is educated by the highest scoring students across all subjects and schools. Join hundreds of your peers today.
Get Started