Restitution Flashcards
Plan for a Restitution Q
Definition
Has the defendant benefitted?
Was the enrichment at claimant’s expense?
Was the enrichment unjust?
Defences
Restitution
A remedy used to deal with cases of unjust enrichment
Purpose of restitution:
To “correct normatively defective transfers of value by restoring both parties to their pre-transfer positions”
Investment Trust Companies.
Has the defendant been enriched?
Enrichment can be both direct or indirect
Examples of enrichment
Paying an amount of money.
Conferring on the defendant a sort of benefit.
Saving the defendant from incurring an expense.
Discharging an obligation that the defendant has to another.
Indirect Enrichment
Paying a debt owed by the defendant.
Abating a nuisance caused by the defendant.
Providing goods or services to the defendant.
Was the enrichment at claimant’s expense?
The claimant must have suffered a loss that was sufficiently close to the defendant’s gain.
(Causal Link) Uren v First National
Was enrichment unjust?
This is achieved by referring to the established non-exhaustive grounds for restitution.
Grounds for restitution
Mistake Duress Undue influence Necessity Failure of consideration* Ultra Vires Illegality
Paying a debt owed by the defendant.
NBE sought return of a bank loan amounting to $5 Million. NBE succeeded in claim for restitution after court found that the payment was intended to discharge a debt.
National Bank of Egypt v Oman Housing Bank
Abating a nuisance caused by the defendant.
Plaintiff entitled to restitution - from sanitary authority - for expenses incurred when taking it upon himself to abate nuisance caused by water and sewage.
Gebhardt v Saunders
Provision of goods and services (indirect enrichment)
Goods and services must have been:
Requested
Acquiesced (Free Acceptance)
Resulted in Incontrovertible benefit
Requested (goods and services)
Rowe applied - and was granted application - for JR to demand payment for sewage services provided without contractual agreement.
Rowe v Vale of White Horse
Incontrovertible Benefit (goods and services)
“Justice required that a person who had a benefit, by a mistake, for which he knew that he had not bargained or paid, should reimburse the value of that benefit to the other party if it was readily returnable “.
Cressman v Coys of Kensington
Acquiesced (goods and services)
Preparatory works, in the form of services, were carried out for Ds benefit.
Claimant could recover a reasonable sum where the Defendant had benefitted from his work.
Marston Construction v Kigass
Criteria for finding a link between claimant and defendant’s enrichment:
Direct provision of a benefit which causes loss to claimant.
Provision of benefit is indirect but legally equivalent to direct provision.
Must also identify the type of loss that has arisen to the claimant.
Lord Reed in Bank of Cyprus v Menelaou.
Facts of Lipkin Gorman
Partner at a Solicitor’s firm used the firm’s money to fund his gambling addiction.
Firm sought to reclaim the money.
Ruling in Lipkin Gorman
Innocent recipient of stolen money obliged to pay an equivalent sum to the true owner where he had not given full consideration for it.
Significance of Lipkin Gorman
Introduced concept of Unjust Enrichment
Tracing
Change of position
