Woolwich

Question 1

claim by public authority

Answer 1

general principle in Auckland Harbour Board (PC) - ultra vires payments made by public bodies are reoverable as of right because of their ultra vires nature

According to Burrows, the unjust factor is that the public authority was making the payment ultra vires.

In Woolwich, Goff interpreted a claim under this principle as proprietary in nature, but Goff and Jones and Burrows say that the better view is that ref to tracing was in the sense of meaning that the recipient of the beneift is identifable.

Question 2

policies in favour of restitution

Answer 2

o Engrained in constitution that there can be no taxes imposed without parliamentary authority
o Loss should not fall on totally innocent taxpayer: Dissent in Air Canada v British Columbia (Canada)

Question 3

policies against restitution

Answer 3

o Claims might result in unacceptable disruption to public finances: Air Canada v British Columbia obiter - if claim succeeded, the got would impose a new tax to pay for the old, which is inefficient. There would be “fiscal chaos” if the general rule favoured recovery.

Question 4

points of Goff’s judgment in Woolwich

Answer 4

” 1. Rejection of wide unjust factor had never been cemented at a higher level than the CA
“ 2. Should take step forward in favour of the wide ground because
“ Justice of Woolwich’s claim was plain to see
“ Constitutional principle of no taxation without authority
“ Taxation implicitly backed by coercive powers
“ Traditiaonl law unattractively weighted against the citizen, as Crown could recover ultra vires payments
“ Community law allowed restitution of money exacted by a State in contravention of his directly effective EC rights

Question 5

Woolwich principle

Answer 5

o Money or other levies paid pursuant to an ultra vires demand is prima facie recoverable by the citizen as of right.

Question 6

reason why receipt of money was ultra vires doesnt matter

Answer 6

FII SC

Burrows: correct because the key question is whether the exaction of the payment is ultra vires

Question 7

woolwich not limited to taxes

Answer 7

applied to levies on air officers for border control services in Waikato Regional Airport Ltd v AG (PC)

Question 8

Woolwich doesn’t extend to ordinary contracts which are ultra vires

Answer 8

FII SC

Question 9

Ipswitch Town Football Club

Answer 9

there is a continuum between public and private transactions where somewhere along it, rules change. In that case the police constable had charged football club for provision of policing services, and tried to argue this was an ordinary private transaction paying for services. Judge held it was Woolwich - it was a public body, purporting to exercise a statutory power, demanding payment for services it had a public duty to provide.

Question 10

what kind of public body covered

Answer 10

not addressed by Woolwich HL, but CA said any branch of the executive.
Ipswitch suggests extension to public bodies like the police.
Burrows and Williams say look to public law for answer.

Question 11

there does not need to be a demand for payment

Answer 11

FII SC
but it must have been communicated to the taxpayer that a payment was required in circs where the tax authority had no power to require payment, satisfied by the existence of a statute requiring payment.

justified by the idea that there should be no taxation without authority (Virgo and Goymour)

Question 12

what if the payment is caused by claimant’s uninduced mistake

Answer 12

in FII SC, Lord Sumption suggested that Woolwich wouldnt apply but obiter.

Virgo and Goymour argue that the preferable view is that of Lord Walker, Woolwich claim involves a perceived obligation to pay, encompassing a claimant’s self generated mistake. consistent with constitutuonal foundations. Goff and Jones also

Question 13

concurrent unjust factors

Answer 13

claimant has free choice between grounds: Deutsche Morgan Grenfell (conclusion mandated by constitutional principle of equality that the Crown is subject to the same common law obligations as an ordinary citizen), FII SC

Question 14

alternative views on concurrent unjust factors

Answer 14

Williams argues that Woolwich should be an exhaustive regime - public law reason should be the overriding, dominant basis for restitution

Approach in Kingstreet SCC is that claims to recover money paid as tax which was not due are not claims in unjust enrichment but a sui generis restitutionary claim, because they raise important constitutional principles which would be ignored if treated as a private law claim

Germany special public law claim, subject to tighter time limits than ordinary private claim but treating citizens more favourably

Question 15

Woolwich can be ousted by statute

Answer 15

Munro v RCC, FJ Chalke

Question 16

can only recover the unlawful amount

Answer 16

Regina (Hemming (t/a Simply Pleasure Ltd) v Westminster CC - could recover the difference between the amount of the unlawful charge and a reasonable fee that could have been demanded. Endorsed in Lindum Construction Co v OFT: the public authority is not necessarily unjustly enriched to the full extent of the charge/levy, but only to the extent that the first charge/levy exceeds the second possible lawful charge/levy

Question 17

ability to bring Woolwich claim in private law action

Answer 17

established in British Steel plc v CEC, Deutsche Morgan Grenfell v IRC

Question 18

application of 3 month judicial review time limit for bringing proceeding

Answer 18

” Regina (Hemming (trading as Simply Pleasure Ltd)) v Westminster CC CA said that while the factor making the payee’s enrichment is rooted in public law, the right to restitution and obligation to make restitution is part of the private law. This means that the JR time limit of 3 months should not apply. (But note this reasoning could apply to get the opposite conclusion)
“ Lindum Construction Co v OFT HC stated that a claim under Woolwich does not require the bringing of JR proceedings first. The time limit of 3 months does not apply.

Burrows says the three month rule is to protect public authorities when seeking to nullify, stop or enjoin their actions but that doesnt apply when merely seeking restitution.

policy also not undermined if there are defences to protect authority.

Question 19

Williams’ view on private/public procedure

Answer 19

the claim should be allowed through the private law route as it is unfair otherwise, but the time limit should be 4 years rather than 6

Question 20

COP and Woolwich

Answer 20

FII 2008 view that COP unavailable because public authority wrongdoer in Woolwich context.

FII 2014, not a wrongdoer but COP still ruled out because availability would stultify the policy behind restitution.

Question 21

COP, public authority and mistake

Answer 21

can use COP

criticised by SW: there may be good policy reasons why we don’t want claims against public authorities to be defeated by COP, but they shouldn’t dpend on what ground is pleaded. If your claim is a claim in substance to recover back unlawfully levied payment, should be the same approach to defences regardless of formal articulation.

Question 22

ability of public authority to make out COP in mistake

Answer 22

FII 2008 - indicated it would be easy to make out

Littlewoods Retail Ltd v RCC 2010 - hard to show that any expenditure was causatively related to any individual receipt because the state doesnt set its budget on the basis of individual receipts

FII 2014 - same standard of proof applies for public authority as private law litigants. can rely on COP if can show that govt only incurred expenditure on basis of particular receipts. not made out on the facts.