I know nothing (less than that really) about civil procedure law so I don't see quite how you get to the scenario Floyd LJ discusses in para 1. Even if all the parties (Hesco and Explora) believe the debt to be between them, how do you get a judgment for a non-existent debt? Or was the judgment that the debt was owed to someone else (the Bank as I understand it)? Enlightenment would be appreciated.

That said, I don't see how A's claim can possibly fail. Whatever you might think about incidental benefits and Gerard must be right that the Scots have the right idea, this is not an incidental benefit. It is the only benefit going. It is only incidental in the sense that A didn't mean to benefit C, but that's why there's an unjust factor of mistake surely, which I think is what Floyd LJ says at para 45.

Duncan

>-----Original Message-----
>From: Enrichment - Restitution & Unjust Enrichment Legal Issues
>[mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of Gerard McMeel
>Sent: Thursday, November 14, 2013 3:17 PM
>To: ENRICHMENT@LISTS.MCGILL.CA
>Subject: Re: [RDG] Incidental Benefits
>
>Hi Hector
>
>If I may, let me quote my Skeleton Argument:
>
>11. The seminal modern English discussion of this limiting factor is
>Professor Peter Birks, Unjust Enrichment (2nd edn, 2005), pp 158-60 under
>the heading "By-benefits", which is the immediate source of the "flat heating"
>example (example 21) in the Restatement. The late Professor Birks set out
>the flat example and continued (at p. 158):
>"Similarly, if you have a flat which overlooks the Oval you will be able to watch
>test matches without paying.
>In cases of this kind one person is enriched at another's expense and the
>other is powerless to prevent it. But this is not an unjust enrichment. There is
>no right to restitution."
>Whilst commentators have doubted the suggested explanation (gift) the
>principle and illustrating examples are compelling. Birks also noted that the
>legal compulsion cases constituted an exception (pp. 159-60).
>12. For his proposition quoted above, Birks cited the Scottish case
>of Edinburgh Tramways Co v Courtenay 1909 SC 99, 105, from which it can de
>discerned that Lord President Dunedin was the ultimate source of the "flat
>heating" example. The Lord President said (at p.105):
>"One man heats his house, and his neighbour gets a great deal of benefit. It is
>absurd to suppose that the person who has heated his house can go to his
>neighbour and say, - 'Give me so much for my coal bill, because you have
>been warmed by what I have done, and I did not intend to give you a present
>of it.'"
>(See further on the modern Scots law: Shilliday v Smith 1998 SC 725, at
>730-31 (Lord President Rodger) and H McQueen, "Peter Birks and Scots
>Enrichment Law" in A Burrows and Lord Rodger of Earlsferry (eds), Mapping
>the Law [-] Essays in Memory of Peter Birks (2006) ("Mapping the Law"), p 401
>at p.402.)
>
>
>Sadly my attempt to persuade the English CA that the Scots (quoting you) and
>Germans (Sonia Meier) had the right idea did not appeal on a strike out!
>
>Hey ho,
>
>Gerard
>
>
>
>Gerard McMeel
>Barrister
>
>T 0117 930 9000
>F 0117 930 3814
>E gerard.mcmeel@guildhallchambers.co.uk
>W www.guildhallchambers.co.uk
>
>23 Broad Street, Bristol, BS1 2HG
>DX 7823 Bristol
>
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>-----Original Message-----
>From: Enrichment - Restitution & Unjust Enrichment Legal Issues
>[mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of Hector MacQueen
>Sent: 14 November 2013 15:06
>To: ENRICHMENT@LISTS.MCGILL.CA
>Subject: Re: [RDG] Incidental Benefits
>
>Interesting case. Incidentally, Peter Birks' example of the flat heated by the
>downstairs neighbour's flat derived from the Scottish case, Edinburgh and
>District Tramways Co Ltd v Courtenay 1909 SC 99, where Lord President
>Dunedin said (at p 105): "One man heats his house, and his neighbour gets a
>great deal of benefit. It is absurd to suppose that the person who has heated
>his house can go to his neighbour and say, 'Give me so much for my coal bill,
>because you have been warmed by what I have done, and I did not intend to
>give you a present of it.'"
>The example may have appealed to Peter particularly because of his own
>experiences as an Edinburgh flat-dweller. Even though the case is about
>Edinburgh trams, it is a useful one on what constitutes an incidental benefit.
>
>Hector
>
>--
>Hector L MacQueen
>Professor of Private Law
>Edinburgh Law School
>University of Edinburgh
>Edinburgh EH8 9YL
>UK
>
>SSRN http://ssrn.com/author=463210
>
>Currently working at the Scottish Law Commission tel: (UK-0)131-662-5222
>
>
>Quoting James Lee <j.s.f.lee@BHAM.AC.UK> on Thu, 14 Nov 2013 12:15:32
>+0000:
>
>> Dear Members,
>>
>>
>>
>> The English Court of Appeal has considered the law on incidental
>> benefits today in TFL Management Services Ltd v Lloyds Bank Plc [2013]
>
>> EWCA Civ 1415 http://www.bailii.org/ew/cases/EWCA/Civ/2013/1415.html,
>> in which RDGer Gerard McMeel appeared. The problem was whether
>summary
>
>> judgment should be granted in favour of the defendant bank in
>> circumstances as framed by Floyd LJ (at [1]):
>>
>>
>>
>> "A spends money seeking a judgment for the recovery of a debt from B.
>> A fails to recover the debt because, so the court holds, the debt is
>> not in fact owed by B to A (as A mistakenly thought), but owed by B to
>
>> C. C then recovers the debt, relying on the judgment in A's
>> unsuccessful claim. The question raised in this appeal is whether A
>> has a claim based on unjust enrichment against C, enabling him to
>> recover the money expended on obtaining the judgment."
>>
>>
>>
>> The Court considers academic commentary but declines to formulate
>> general principles. It is also divided. Beatson LJ's concurring
>> judgment is particularly worthwhile (see eg at [86]):
>>
>>
>>
>> "Given the position in the scholarly commentaries, and the absence of
>> decisions which explicitly proceed on the basis of a principle barring
>> "incidental benefits", or any clear (let alone agreed) formulation of
>> what it is which is to be prevented, I do not consider that it is
>> appropriate to give summary judgment on the basis of a general
>> principle barring restitution in respect of benefits conferred
>> "incidentally". To do so would, in particular, be to discount the
>> possible alternative explanations for the scenarios which have been
>> said to be examples of its operation."
>>
>>
>>
>> Best wishes,
>>
>> James
>>
>>
>>
>> --
>> James Lee
>> Senior Lecturer and Director of Admissions Birmingham Law School, room
>> 235 University of Birmingham Edgbaston Birmingham
>> B15 2TT, United Kingdom
>>
>> Tel: +44 (0)121 414 3629
>> E-mail: j.s.f.lee@bham.ac.uk
>>
>>
>> Web: http://www.birmingham.ac.uk/staff/profiles/law/lee-james.aspx
>>
>>
>> SSRN: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1192219
>>
>> ====
>>
>> This message was delivered through the Restitution Discussion Group,
>> an international internet LISTSERV devoted to all aspects of the law
>> of unjust enrichment. To subscribe, send "subscribe enrichment" in
>> the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe,
>> send "signoff enrichment" to the same address. To make a posting to
>> all group members, send to <enrichment@lists.mcgill.ca>. The list is
>> run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>.
>>
>>
>
>
>
>--
>The University of Edinburgh is a charitable body, registered in Scotland, with
>registration number SC005336.
>
>====
>
>This message was delivered through the Restitution Discussion Group, an
>international internet LISTSERV devoted to all aspects of the law of unjust
>enrichment. To subscribe, send "subscribe enrichment" in the body of a
>message to <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff
>enrichment" to the same address. To make a posting to all group members,
>send to <enrichment@lists.mcgill.ca>. The list is run by Lionel Smith of McGill
>University, <lionel.smith@mcgill.ca>.
>
>====
>
>This message was delivered through the Restitution Discussion Group, an
>international internet LISTSERV devoted to all aspects of the law of unjust
>enrichment. To subscribe, send "subscribe enrichment" in the body of a
>message to <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff
>enrichment" to the same address. To make a posting to all group members,
>send to <enrichment@lists.mcgill.ca>. The list is run by Lionel Smith of McGill
>University, <lionel.smith@mcgill.ca>.

====

This message was delivered through the Restitution Discussion Group,
an international internet LISTSERV devoted to all aspects of the law
of unjust enrichment. To subscribe, send "subscribe enrichment" in
the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe,
send "signoff enrichment" to the same address. To make a posting to
all group members, send to <enrichment@lists.mcgill.ca>. The list is
run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>.