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This is the seventh and final post (see also parts I, II, III, IV, V and VI) discussing the opinion of Lord Burrows (pictured left, via here) giving the advice of the Privy Council in Samsoondar v Capital Insurance Company Ltd (Trinidad and Tobago) [2020] UKPC 33 (14 December 2020) (Samsoondar) and the decision of Thornton J (pictured far left, via here) in the Queen’s Bench Division in Surrey County Council v NHS Lincolnshire Clinical Commissioning Group [2020] EWHC 3550 (QB) (21 December 2020) (Surrey).

In my first post, I introduced the cases and issues. In my second post, I examined whether the defendants were enriched at the expense of the plaintiffs. In my third post, I considered whether compulsory discharge of the debt of another could have provided a cause of action in Samsoondar and Surrey, and whether Surrey could rely upon a policy-motivated cause of action, consisting in the unlawful obtaining or conferral of a benefit by a public authority. In my fourth post, I considered whether the mistaken discharge of the debt of another might have been available on the facts of both cases.…

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This is the sixth post (in a series of seven; see also parts I, II, III, IV, V and VII) discussing Samsoondar v Capital Insurance Company Ltd (Trinidad and Tobago) [2020] UKPC 33 (14 December 2020) (Samsoondar) and Surrey County Council v NHS Lincolnshire Clinical Commissioning Group [2020] EWHC 3550 (QB) (21 December 2020) (Surrey). In my first post, I introduced the cases and issues. In my second post, I examined whether the defendants were enriched at the expense of the plaintiffs. In my third post, I considered whether compulsory discharge of the debt of another could have provided a cause of action in Samsoondar and Surrey, and whether Surrey could rely upon a policy-motivated cause of action, consisting in the unlawful obtaining or conferral of a benefit by a public authority. In my fourth post, I considered whether the mistaken discharge of the debt of another might have been available on the facts of both cases. In my previous post, I considered some of the effects of voluntariness in the discharge cases. In this post, I want to put this issue of voluntariness in a larger context.…

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This is the third post (in a series of seven; see also parts I, II, IV, V, VI and VII) discussing Samsoondar v Capital Insurance Company Ltd (Trinidad and Tobago) [2020] UKPC 33 (14 December 2020) (Samsoondar) and Surrey County Council v NHS Lincolnshire Clinical Commissioning Group [2020] EWHC 3550 (QB) (21 December 2020) (Surrey). In my first post, I introduced the cases and issues. A claim to restitution for unjust enrichment failed in the first but succeeded in the second. In my second post, I examined whether the defendants were enriched at the expense of the plaintiffs. In this post, and the next two (see parts IV and V), I want to examine whether any such enrichment was unjust.

On the question of whether the enrichment was unjust – that is to say, on the question of whether there is a cause of action or ground for restitution – the same issue arose in both cases. A plaintiff who has been compelled to discharge the debt of another can have restitution from that other in the amount of that enrichment (Moule v Garrett (1872) LR 7 Exch 101; Brooks Wharf v Goodman [1937] 1 KB 543; East Cork Foods v O’Dwyer Steel [1978] IR 103 (SC); Goodman v Minister for Finance [1999] 3 IR 356, [1999] IEHC 197 (8 October 1999) (Laffoy J)).…

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This is the second post (in a series of seven; see also parts I, III, IV, V, VI and VII) discussing Samsoondar v Capital Insurance Company Ltd (Trinidad and Tobago) [2020] UKPC 33 (14 December 2020) (Samsoondar) and Surrey County Council v NHS Lincolnshire Clinical Commissioning Group [2020] EWHC 3550 (QB) (21 December 2020) (Surrey). In my previous post, I introduced the cases and issues. A claim to restitution for unjust enrichment failed in the first but succeeded in the second. Similar issues arose in both cases, on the question of whether the defendant was enriched at the plaintiff’s expense.

When a plaintiff discharges the defendant’s debt to a third party, that saves the defendant an inevitable expense – it incontrovertibly benefits the defendant; it enriches the defendant at the expense of the plaintiff; and the defendant cannot subjectively devalue the benefit received (Benedetti v Sawiris [2014] AC 938, [2013] UKSC 50 (17 July 2013) [25] (Lord Clarke; Lords Kerr and Wilson concurring)). In Surrey, Thornton J held (at [109], [121]) that Lincs were enriched at Surrey’s expense, because Surrey had discharged Lincs’ liability to JD to the extent of the fees paid by Surrey to JD’s care home.…

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I first encountered Occam’s Razor in the writings of Peter Birks:

‘It is vain to be done with more what can be done with fewer’; or, ‘Entities are not to be multiplied without necessity.’

(Peter Birks An Introduction to the Law of Restitution (OUP, revised ed, 1989) 75, citing Bertrand Russell A History of Western Philosophy (2nd ed, Allen & Unwin, 1961) 462-463).

Birks also wrote that there “is a counter-principle of ‘Occam’s razor’ … that, as you must not have too many entities, so also you cannot do with too few” (ibid, 91). This is inherent in Occam’s Razor itself, of course, especially as formulated in Einstein’s Constraint, that “Everything should be kept as simple as possible, but not simpler” (emphasis added). But the Birks formulation is stronger, since it suggests that, even though there are virtues in shaving away unnecessary entities, not only are there limits to how much may be shaved away, but there are also virtues in adding necessary entities in. Let us call this “Birks’s Augmentation”.

All of this occurred to me as I was reading two interesting cases of restitution for unjust enrichment in which judgment was handed down just before Christmas.…

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