The recent decision of the Court of Appeal for England and Wales in Gray v Global Energy Horizons Corporation  EWCA Civ 1668 (09 December 2020) has prompted me to reflect, briefly, on the role of policy in the law of restitution for unjust enrichment. In this post, I will consider that role in the context of the structure such claims restitution for unjust enrichment that the Irish and UK courts broadly apply.
In the case concerning The Bricklayers’ Hall, Keane J predicated the obligation to make restitution for unjust enrichment upon four “essential preconditions”: whether there was (i) an enrichment to the defendant (ii) at the expense of the plaintiff, (iii) in circumstances in which the law will require restitution, (iv) where there is no reason why restitution will be withheld (see Dublin Corporation v Building and Allied Trade Union  2 IR 468, 483;  2 ILRM 547, 558 (html) (Keane J; Hamilton CJ, O’Flaherty, Blayney and Barrington JJ concurring); see footnote).
Questions of policy overtly arise on the second and fourth of these four essential preconditions, and they will be discussed in the next two sections of this post.
The second essential precondition of a claim to restitution for unjust enrichment – whether there are circumstances in which the law will require restitution – essentially focuses upon the question of whether a cause of action has been made out.…