Dear all,

Lord Diplock´s dictum has been quoted frequently, and not unrightly so.

His Lordship was, I am sure, wise to use cautious wording. I doubt, if he was mistaken to state, that the/a general doctrine of ue was not recognised at that time.

 

Apparently, in the year Orakpo was decided, 1977, ue as a general doctrine was far from being recognised by many (at least in England).

Lord Diplock was also wise not to state, that the specific remedies ARE CLASSIFIED as ue in the civil law world. Instead he only said, that these remedies MIGHT be classified as unjust enrichment in a legal system which is based upon the civil law.

There are enough  cases and situtations where remedies are granted in civil law jurisdictions, that are not considered as being based on ue, wheras the English equivalent is (now) seen as "restitutionary".

A lot of work for comparative law...

Regards

Johann

--- James Lee <j.s.f.lee@BHAM.AC.UK> schrieb am Do, 24.6.2010:

> Von: James Lee <j.s.f.lee@BHAM.AC.UK>

> Betreff: [RDG] Enrichment in the Court of Appeal

> An: ENRICHMENT@LISTS.MCGILL.CA

> Datum: Donnerstag, 24. Juni, 2010 15:33 Uhr

> Dear Colleagues,

>

> The England and Wales Court of Appeal yesterday decided

> Gibb v Maidstone & Tunbridge Wells NHS Trust [2010] EWCA

> Civ 678 http://www.bailii.org/ew/cases/EWCA/Civ/2010/678.html.

> It concerned a claim arising under a compromise termination

> agreement between an NHS Trust and its former Chief

> Executive. The claimant sought the balance of her

> compensation payment, which the Trust resisted on the basis

> that it was so generous as to be ultra vires. In the

> alternative, she submitted that she had a claim in unjust

> enrichment. The Court of Appeal unanimously held that the

> compensation package was not ultra vires (though a novel

> point in itself) and so the restitution issue was obiter.

>

> But Laws LJ nevertheless considered the restitution claim

> (at [23]-[37]) and it is interesting because it shows that,

> even in England today, counsel may still seek to rely on

> Lord Diplock's statement in Orakpo that:

>

> "My lords, there is no general doctrine of unjust

> enrichment recognised in English law. What it does is to

> provide specific remedies in particular cases of what might

> be classified as unjust enrichment in a legal system which

> is based upon the civil law."

>

>

>

>

>

> The benefit to, or enrichment of the Trust were identified

> as follows:

>

>

>

> "(1) the value of the statutory unfair dismissal claim

> which she forewent and the costs of contesting that claim

> which the Trust saved, (2) the confidentiality requirement

> imposed on the appellant, (3) the immediate cessation of the

> appellant's employment, and (4) the avoidance of any

> internal grievance procedure of which the appellant might

> have contested to the detriment of the Trust in terms of

> "significant human and/or financial resources"."

>

>

>

> Laws LJ then goes on to suggest (at [26]-[27]) that

>

>

>

> "with all due deference, I wonder whether Lord Hoffmann's

> formulation in Banque Financière de la Cité v Parc

> (Battersea) Limited [1999] 1 AC 221<http://www.bailii.org/cgi-bin/redirect.cgi?path=/uk/cases/UKHL/1998/7.html>

> at 234C – D has not too much of a broad-brush or

> legislative flavour. He states there are four components to

> a claim in unjust enrichment. First, the defendant must be

> enriched by receipt of a benefit. Secondly, the benefit must

> be at the claimant's expense. Thirdly, the defendant's

> retention of the benefit must be shown to be unjust. Lastly,

> there must be no policy reasons for denying a remedy. The

> third requirement seems to be quite unqualified.

>

>

>

> If one looks at the matter from what is perhaps a more

> modest standpoint, we may see at once that clear reasoning

> is at least required for the elaboration of any extension of

> unjust enrichment. Clear reasoning, if it allows a claim in

> seemingly new circumstances, will provide clear analogues

> with other cases.

>

>

>

> Laws LJ does go on to find that a unjust enrichment is

> plausible in the circumstances:

>

>

>

> Notwithstanding Miss McNeill's tenacity and ingenuity it

> seems to me that the facts of this case are readily aligned

> to established categories of unjust enrichment. If

> everything else is equal I can see no principled distinction

> between a benefit consisting in money paid and a benefit

> consisting in a claim foregone. For the purpose of this

> branch of the law the material benefit may take many forms.

> In Way v Latilla [1937] 3 AER 759 it consisted in providing

> information about gold mines and effecting introductions.

>

>

>

>

>

> So there are some interesting observations as to what

> counts as an enrichment, and causation.

>

> Best wishes,

>

>

>

> James

>

> --

> James Lee

> Lecturer

> Director of the LLB Programme

> Birmingham Law School

> University of Birmingham

> Edgbaston

> Birmingham

>  B152TT, United Kingdom

>

> Tel: +44 (0)121 414 3629

> E-mail: j.s.f.lee@bham.ac.uk

>

> ====

>

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====

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