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![handle is hein.journals/lqr134 and id is 588 raw text is:
THE UNJUST ENRICHMENT DISASTER
Robert Stevens
Herbert Smith Freehills Professor of Private Law, University of Oxford
I. The Claim
The decisions of the UK Supreme Court in Revenue and Customs Commissioners
v Investment Trust Companies' and Lowick Rose LLP v Swynson Ltd' have retreated
from a more expansive approach to the law of restitution. Although these cases
are to be warmly welcomed, the court is unable to articulate why the kinds of
limitations on recovery it specifies are justifiable. This article seeks to address that
problem. It seeks to identify the reasons for restitution that any properly constructed
system of private law ought to recognise.
Unfortunately, the account presented here has a poorer fit, in some respects,
with English law than it does with that in many other systems, both common law
and civilian. The important implication for English law is that it has taken a wrong
turn in a number of cases. So, as we shall see, some decisions of our ultimate
appellate court are either wrongly reasoned (Lipkin Gorman v Karpnale Ltd;'
Menelaou v Bank of Cyprus;' International Energy Group Ltd v Zurich Insurance
Plc)' or, more seriously, wrongly decided (Banque Financibre de la Citj v Parc
(Battersea) Ltd,6 Deutsche Morgan Grenfell v Inland Revenue Commissioners;'
Sempra Metals Ltd v Commissioners of Inland Revenue).8 To understand why
requires an overview of the entire subject.
Recent books, specifically Birks' Unjust Enrichmen? and Goff andJones: The
Law of Unjust Enrichment,' have attempted to narrow the scope of their subject
by excluding gains by wrongdoing from their coverage. What has remained is,
however, still four or five different jigsaw puzzles in one box. They are not even
different parts of the same overall picture, unless that picture is private law itself.
The different kinds of claim that remain have no more in common with each other
than any one of them has with the now excluded category of restitution for
wrongs. Treating them together has led to error.
Here are two simple examples:
C enters into a contract to provide financial services for D. After performance,
C discovers that D had made material misrepresentations to C that had induced
entry into the bargain. C seeks to rescind and claim restitution of the value
of the work done.
'[2017] UKSC 29; [20181 A.C. 275.
'[2017] UKSC 32; [2018] A.C. 313.
3 [199112 A.C. 548; [1992] 4 All E.R. 512.
4 [2015] UKSC 66; [20161 A.C. 176.
' [2015] UKSC 33; [2016] A.C. 509.
6[1999] 1 A.C. 221; [1998] 1 All E.R. 737.
'[2006] UKHL 49; [2007] 1 A.C. 558.
:[2007] UKHL 34; [2008] 1 A.C. 561.
P. Birks, Unjust Enrichment, 2nd edn (Oxford; Oxford University Press, 2005).
'0 C. Mitchell, P. Mitchell and S. Watterson (eds), GoffandJones: The Law ofUnjust Enrichment, 9th edn (London:
Sweet & Maxwell, 2016).
(2018) 134 L.Q.R. October 0 2018 Thomson Reuters and Contributors](ViewImageLocal?handle=hein.journals/lqr134&div=71&collection=&method=preview&ext=.png&size=3)