From: Enrichment - Restitution & Unjust Enrichment Legal Issues <ENRICHMENT@LISTS.MCGILL.CA>
To: ENRICHMENT@LISTS.MCGILL.CA
Date: 29/07/2016 23:40:43 UTC
Subject: Re: [RDG] Richards v Worcestershire County Council & Anor [2016] EWHC 1954 (Ch) (28 July 2016)
Thanks for this Peter.
Why does there need to be a statute? Isn’t it (at least if the plaintiff’s argument is correct) the same type of claim that has always been available where a person who is only secondarily liable pays a debt that someone else was primarily liable to pay?
Of course the primary/secondary question may require statutory interpretation, but this is not the case, for example, where a guarantor pays the debt of a primary debtor—the analogy that was, I think, relied upon in Brook’s Wharf.
On that view, mistake is irrelevant—but I don’t think mistake was part of the claim in Brook’s Wharf. The conclusion about primary/secondary is enough to tell you that something is not as it should be as between the person who paid and the person who was primarily liable to pay.
Whether unjust enrichment is relevant to this claim is a much more difficult question..
Lionel



From: RDG <ENRICHMENT@LISTS.MCGILL.CA> on behalf of Peter Watts <pg.watts@auckland.ac.nz>
Reply-To: Peter Watts <pg.watts@auckland.ac.nz>
Date: Thursday, July 28, 2016 at 21:06
To: RDG <ENRICHMENT@LISTS.MCGILL.CA>
Subject: [RDG] Richards v Worcestershire County Council & Anor [2016] EWHC 1954 (Ch) (28 July 2016)

More unjust-enrichment madness, as I see it, out of the English courts yesterday. Again only a strike out decision, but there will be many more of those whilst a free-ranging unjust enrichment concept is on the loose. 

Very briefly, the claimant in 1984 suffered a road accident for which he apparently received a substantial insurance payout. 20 or so years later he had many complex mental health issues, which saw him hospitalised. Under relevant provisions of the Mental Health Act 1983, not all of which are still in force, he was identified as needing ongoing assistance and care and it was argued that the statute imposed a duty on the NHS to provide them. Subsequently, his “property and affairs deputy” paid £644,645.87 in obtaining services to assist the claimant. It was now argued that the claimant though the deputy had unjustly enriched the defendant local authority that had the statutory duties, by spending personal moneys when it was entitled to have the services paid for by the health system and the defendant in particular.

Newey J has refused to strike out the claim. He stated at [36]: "So far as I am aware, however, failure to perform a public law duty has never of itself been held to be an unjust factor for the purposes of a claim in unjust enrichment or a sufficient basis for any other restitutionary claim.” But he went on to find that insofar as the claimant did what it did under a mistake (ignorance of the entitlement), his claim should stand.

Claims of this sort (in which class I would include Brook’s Wharf), where the defendant was not the recipient of any payment and had not requested what was done, should not in my view be determined by a common law cause of action. Liability can arise only as a question of statutory construction of the duty. (1) Was there a legal duty to provide services of the sort obtained?; and (2) did that duty apply only where the duty-holder had itself determined what actual services were to be provided before they were provided? If the answer to (2) was yes, it might be thought remarkable, but not perhaps out of bounds, to further imply that where the failure to obtain permission first was because of (excusable) ignorance of rights, the scope of the duty could be extended. But the Court’s approach engages with none of this machinery. It was prima facie enough that a claimant's mistake has enriched someone else. This meant that the claimant was unlikely to succeed for the period after there was a realisation that there was a statutory entitlement, thereby begging the question of what was the statutory entitlement. Doubtless some will plead incontrovertible benefit as itself enough for a common law claim. But that involves well-meaning sloppiness of thought in my view.

Peter.