Mary Regan and Anne-Marie Walsh have an interesting story in this morning’s Irish Independent:
Almost all government ministers and junior ministers owe money to the State due to errors in pension payments. They will be informed in the coming days of the sums to be repaid, ranging from as low as €100 up to €30,000.
Although the ministers and other civil servants involved were not at fault in relation to the errors identified in the National Shared Services Office (NSSO), Public Expenditure Minister Jack Chambers said he will ensure “all monies owed to the State are fully recouped”. …
A brief statement from National Shared Services Office (NSSO) on the issue is here. A rather longer statement from Minister Chambers on the issue is here.
This a straightforward case of restitution of mistaken payments. Meanwhile, in preparation for an analysis on this blog, I’ve been re-reading last week’s Supreme Court decision in Bank of Ireland Mortgage Bank v Murray [2025] IESC 24 (04 June 2025). Dunne J (also here) [150] (Murray J concurring) approved the following passage from Charles Mitchell, Paul Mitchell & Stephen Watterson (eds) Goff & Jones on Unjust Enrichment (10th ed, Thomson Reuters, Sweet & Maxwell, London, 2022) [Goff & Jones] §9-163:
It is a long-standing assumption within the law of unjust enrichment that a claimant will not be denied restitution for mistake merely because he was “negligent”. On this basis, as long as the claimant can show that he acted because of a mistaken belief as to some past or existing state of affairs, he will not be denied relief because that belief was the consequence of (for example) having carelessly forgotten or overlooked the true facts, or having carelessly made no inquiry or only an inadequate enquiry, despite adequate means of knowledge being available.
Similarly, Collins J (also here) (concurring with Dunne J) commented:
18. The law of unjust enrichment is not generally predicated on fault. Recovery on the ground of mistake is not fault-based and a claimant is not required to establish fault on the part of the defendant: Goff & Jones, §9-157. As regards fault on the part of a claimant, Goff & Jones state that it is a “long-standing assumption” in the law of unjust enrichment that a claimant will not be denied restitution for mistake merely because he was “negligent” (§9-163). On that basis, “as long as the claimant can show that he acted because of a mistaken belief as to some past or existing state of affairs, he will not be denied relief because that belief was the consequence of (for example) having carelessly forgotten or overlooked the true facts, or having carelessly made no inquiry or only an inadequate inquiry, despite adequate means of knowledge being available” (§9-163).
19. Of the many authorities referred to in Goff & Jones, the earliest is Kelly v Solari (1841) 9 M&W 54 [(1841) 152 ER 24; [1841] EngR 1087 (18 November 1841) (pdf)]. There, the plaintiff sought to recover a payment made by an insurance company on foot of a policy that had lapsed. The fact that the policy had lapsed was obviously known to the company, but it had been overlooked in making the payment. All members of the court appear to have been of the view that, if at the time of payment the company was aware that the policy had lapsed but nonetheless intended that the payee should have the money in any event, the payee should be entitled to retain it. But, if paid under mistake, “it may, generally speaking, be recovered back, however careless the party paying may have been, in omitting to use due diligence to inquire into the fact” (per Parke B, at 59).
20. That passage has been cited many times subsequently, including in Barclays Bank Ltd v WJ Simms Son & Cooke (Southern) Ltd [1980] 1 QB 677 (a judgment of Goff J (as he then was)), Scottish Equitable plc v Derby [2001] EWCA Civ 369, [2001] 3 All ER 818 and Dextra Bank & Trust Co Ltd v Bank of Jamaica [2002] 1 All ER (Comm) 193 [[2001] UKPC 50 (26 November 2001)] (in which the judgment of the Privy Council was given by Lord Bingham and Lord Goff). In Barclays Bank Ltd v WJ Simms Son & Cooke (Southern) Ltd, Goff J stated that the principal issue in Kelly v Solari was whether negligence on the part of the claimant precluded recovery, noting that it had been held that it did not, “a conclusion that has stood ever since” (686H-687A). In Scottish Equitable plc v Derby, the Court of Appeal (per Robert Walker LJ) drew a distinction between “deliberate waiver of inquiry or acceptance of risk” – where the payer has been put on inquiry but deliberately decides to accept the risk of proceeding – which will generally preclude recovery and “carelessness or negligence (even if it is termed gross negligence)” which does not exclude recovery (§§23-24). Finally, in Dextra Bank & Trust Co Ltd v Bank of Jamaica, the Privy Council rejected an argument that the relative fault of the parties was a relevant factor in the change of position defence. One of its reasons for doing so was “the fact that, in actions for the recovery of money paid under a mistake of fact, which provide the usual context in which the defence of change of position is invoked, it has been well settled for over 150 years that the plaintiff may recover ‘however careless [he] may have been, in omitting to use due diligence'” (§45, citing Parke B in Kelly v Solari).
21. As Goff & Jones notes, the authorities all assume a claimant who was unconscious of the risk of error, that is to say a claimant who acted on the basis of an incorrect belief, without any conscious appreciation that his belief may be wrong or that there might be material circumstances of which he was ignorant (§9-164). …
The relevance of Dunne and Collins JJ’s observations to claims to recover the overpaid pensions is obvious. So I shall leave it there, shall I? Except, perhaps, to note, that my comments on Murray will be here … eventually!