It seems to me to clearly be a discharge of another’s obligation case, and in a separate category than “small unjust enrichment” claims as you have previously labelled them: (i) there is no “direct transfer of value” in the ITC sense here (ii) NHS Lincolnshire’s enrichment was “incidental” (iii) the enrichment was “owed” by the claimant under a separate statutory regime and (iv) NHS Lincolnshire were not actually under a duty to spend the money - they would have been had they properly assessed the poor young man in question, but they never did. 

Point (iv) bothers me somewhat however - if NHS Lincolnshire had, because of the repeated requests to them to assess the young man, thrown up their hands and said “fine,  we’ll pay the care home directly, leave us alone” that would seem to have been ultra vires and recoverable under Auckland Harbour Board. We know from Vodafone v OfCom that it is not a defence to a Woolwich claim to argue that if you hadn’t levied the charge unlawfully you would have done so lawfully. The same must I think be true of Auckland Harbour Board claims, unless you can draw an analogy with the Scottish Electricity case, which the CA in Vodafone thinks is about a difference between secondary legislation and administrative acts which doesn’t seem to be consistent with their own earlier reasoning.

But what that means is that Surrey CC could, by performing its own obligations (which it isn’t clear from the judgment are obviously legally subordinate to those of the NHS, merely factually and administratively so) obtain payment from NHS Lincolnshire which the Trust could not have made itself. (The judge’s analysis of unjust factors “overriding” justifying factors will probably need to be revisited because it is very difficult to see what are the objective standards by which judges should undertake this task if it isn’t just a question of statutory interpretation.)

It’s not quite Jenkins v Tucker. It’s Jenkins v Tucker if the estranged husband was not under an obligation to arrange the funeral, only liable to placed under that obligation by some step which was never actually taken. 

I would be very interested to see this fully argued on appeal. 

Best,

Matthew 



Released a few days before Christmas was the judgment of Thornton J. in Surrey County Council v NHS Lincolnshire Clinical Commissioning Group [2020] EWHC 3550 (QB). There are a lot of potential tipping points here, and it will be interesting to see whether it gets appealed.

The gist of the claim—brought as a ‘private law’ claim by a one public entity against another—was that the plaintiff Surrey CC paid for the care of a young man for some years when it was obliged by law to do so but when the defendant (or its predecessor) was primarily obliged to do so. The defendant had refused to assess whether the young man was eligible for NHS care in 2008 and 2010, leaving the plaintiff statutorily responsible, but the court held that had the defendant acted lawfully, it was ‘highly likely’ that it would have concluded that he was so eligible.

The defendant defended by saying that the claim should have been brought as one for judicial review of those decisions, and also by saying that it had changed its position. Both arguments were rejected, with a holding that it was open to the plaintiff to sue in private law, and that while change of position was available in principle, there was no evidence to support it.

Fans of the three-part test will like the reasoning. Some scholars wish to defend the three-part test while denying (in line with recent UKSC authority) that the three parts are elements of a cause of action—having one’s cake and eating it too, some might say, since if they are not elements of a cause of action, it is unclear why anyone needs to prove them to succeed. This judgment seems to go whole hog for the view that the three parts constitute “the cause of action” in unjust enrichment, and indeed this seems to be the only cause of action that is mentioned.

At the same time, the unjust factor is not clearly identified, and some ‘principles’ (not causes of action?) are discussed. The judge thought that the case did not fit within the Woolwich principle nor within the principle of Auckland Harbour Board v R [1924] AC 318 ([96]-[109]); in the reasoning on change of position, though ([122]-[125]) the implication is that this claim is under Auckland Harbour Board. Either way, it seems a bit strange to characterize it as a private law claim.

Although it was said to be common ground that the claim was ‘novel’ ([93]), the similar Canadian case of Carleton (County of) v. Ottawa (City), [1965] SCR 663 was discussed. Interestingly it is an error to understand that case as solely based on mistake. There was a period during which Carleton paid for the care of someone by mistake when Ottawa should have paid; but part of the claim related to a later period, after the mistake had been discovered. The most obvious explanation of the case, allowing recovery in respect of both periods, is simply that the liability belonged, according to law, primarily with the defendant (and that the plaintiff had not paid officiously), rather like in Brook’s Wharf and lots of other cases. That also explains Surrey CC v NHS Lincolnshire CCG. The judgment at [115] is arguably founded on this rather simpler explanation: the wrong party paid.

Lionel