Dear all
The Court of Appeal (Nicola Davies, Popplewell and Dingemans LJJ) has given judgment in the appeal against Foxton J's judgments in the
School Facility Management litigation:
[2021] EWCA Civ 1053; aff'ng
[2020] EWHC 1118 (Comm); [2020] EWHC 1477 (Comm), [2020] 1 WLR 4825.
Others better-versed will probably have more interesting things to say, whether here or elsewhere in due course, so in brief and in haste:
- There is a counter-restitution principle in the law of unjust enrichment;
- The claimant must give credit for benefits it received which are so connected with the benefits it provided under a void transaction that justice requires
it;
- Four possible conceptual bases for the counter-restitution principle in the context of a void transaction were canvassed by reference to law and commentary
in Popplewell LJ's leading judgment (with which Nicola Davies LJ and Dingemans LJ agreed, the latter adding a short concurring judgment) but none was settled upon;
- In claiming against the college in unjust enrichment for unpaid-for use of a building between September 2017 and trial, under
an agreement which transpired to be ultra vires the college, SFM did not have to give credit for benefits received from the college which were referable to the capital acquisition cost of the building, or to use prior to September 2017;
- The counter-restitution principle will not necessarily
trump a change of position defence, which SFM had established re. pre-2017 receipts.
This may be a case which some will say shows the value, in tidying up unjust enrichment, of reasoning which focuses on defining and ascertaining the fate of
the state of affairs on which the provision of a given benefit was conditional, at least in the context of transactions which fail to materialise or are initially or subsequently ineffective.
An incidental point perhaps worth noting is that SFM's retention of the freehold was not picked up as a bar to an unjust enrichment claim. Whether retention
of (any kind of) title does or should sometimes or always prevent an unjust enrichment claim remains, if memory serves, the subject of debate.
Best wishes