I’ve just received news of the publication of the eagerly-awaited:

Unjust Enrichment and Public Law. A Comparative Study of England, France and the EU

by Rebecca Williams

This book examines claims involving unjust enrichment and public bodies in France, England and the EU. Part 1 explores the law as it now stands in England and Wales as a result of cases such as Woolwich v IRC [1993] AC 70 (HL) (pdf), those resulting from the decision of the European Court of Justice (ECJ) in Case C-410/98 Metallgesellschaft and Hoechst v IRC [2001] ECR I–4727, [2001] EUECJ C-410/98, [2001] Ch 620 (8 March 2001) and those involving Local Authority swaps transactions. So far these cases have been viewed from either a public or a private law perspective, whereas in fact both branches of the law are relevant, and the author argues that the courts ought not to lose sight of the public law issues when a claim is brought under the private law of unjust enrichment, or vice versa. In order to achieve this a hybrid approach is outlined which would allow the law access to both the public and private law aspects of such cases.

Since there has been much discussion, particularly in the context of public body cases, of the relationship between the common law and civilian approaches to unjust enrichment, or enrichment without cause, Part 2 considers the French approach in order to ascertain what lessons it holds for England and Wales.

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My attention was drawn today to the fascinating decision of Feeney J in Criminal Assets Bureau v J W P L [2007] IEHC 177 (24 May 2007), in which the nature of an action for restitution of unjust enrichment was discussed. The basic question was whether the common law action in unjust enrichment was analogous to a statutory action taken by the the Criminal Assets Bureau (CAB) to confiscate a defendant’s “corrupt enrichment”. In the event, Feeney J held that since any enrichment of the defendant would not usually (or at all) be at the expense of the plaintiff, the common law claim to restitution of an unjust enrichment would not be made out where the statutory action to recover a corrupt enrichment would be, the claims were not analogous with one another. In which case, it would probably have been better to have avoided the issue in the first place by describing the statutory action in different terms, perhaps by using a simpler synonym for “enrichment” such as “gain” – after all, the aim of the proceeds of crime legislation is to get at criminals’ ill-gotten gains.…

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On 19 May 1760, Lord Mansfield (left) delivered judgment in the famous case of Moses v Macferlan (1760) 2 Burr 1005, 97 ER 676, [1558-1774] All ER Rep 581, [1760] EngR 713 (19 May 1760) (warning: pdf; an unofficial html is here).

Much of the modern law of restitution has been constructed upon the foundations which he laid down:

If the defendant be under an obligation, from the ties of natural justice; to refund; the law implies a debt, and gives this action, founded in the equity of the plaintiff’s case, as it were upon a contract (“quasi ex contractu,” as the Roman law expresses it).

This species of assumpsit, (“for money had and received to the plaintiffs use,”) lies in numberless instances, for money the defendant has received from a third person; which he claims title to, in opposition to the plaintiff’s right; and which he had, by law, authority to receive from such third person. …

This kind of equitable action, to recover back money, which ought not in justice to be kept, is very beneficial, and therefore much encouraged. It lies only for money which, ex aequo et bono, the defendant ought to refund: it does not lie for money paid by the plaintiff, which is claimed of him as payable in point of honor and honesty, although it could not have been recovered from him by any course of law; as in payment of a debt barred by the Statute of Limitations, or contracted during his infancy, or to the extent of principal and legal interest upon an usurious contract, or, for money fairly lost at play; because in all these cases, the defendant may retain it with a safe conscience, though by positive law be was barred from recovering.

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