From:                                                       Enrichment - Restitution & Unjust Enrichment Legal Issues <ENRICHMENT@LISTS.MCGILL.CA> on behalf of Matthew Hoyle <MHoyle@OECLAW.CO.UK>

Sent:                                                         Saturday 21 October 2023 18:19

To:                                                            ENRICHMENT@LISTS.MCGILL.CA

Subject:                                                   Re: [RDG] Attorney General of Trinidad and Tobago v Trinsalvage Enterprises Ltd.

 

Thanks Lionel.

 

There are to my mind lots of issues with the judgment. The biggest problem for me is the failure to engage with the words of the statute. The Act does not provide that any contract will be void, like in the swaps cases. It states (so far as relevant, my emphasis):

 

Section 4 Establishment of Board

 

(1) There is hereby established a Central Tenders Board which save as is provided in section 20A and in section 35 of this Act shall have the sole and exclusive authority in accordance with this Act—

 

(a) to act for, in the name and on behalf of the Government and the statutory bodies to which this Act applies, in inviting, considering and accepting or rejecting offers for the supply of articles or for the undertaking of works or any services in connection therewith, necessary for carrying out the functions of the Government or any of the statutory bodies;

 

(b) to dispose of surplus or unserviceable articles belonging to the Government or any of the statutory bodies.

 

Section 20 Request for invitation of offers to be in writing

 

(1) …, whenever articles or works or any services in connection therewith are required to be supplied to or undertaken on behalf of the Government or a statutory body to which this Act applies, the Government or such statutory body shall make written request to the Board to invite on its behalf offers for the supply of those articles or for the undertaking of the works or services in connection therewith.

 

As such, the minister has neither authority (and indeed the trial judge found no apparent authority) to act on behalf of the government to agree to any work being done, nor does the government have the capacity to agree to such work. The minister had no power to accept on behalf of the government the services rendered, or to agree a bilateral basis for performance which has failed? That rules out failure of basis.

 

What about mistake? Well, this raises a deeper issue - on what basis has this work enriched the government at Trinsalvage’s expense? It is factually better off yes, but it did not and could not agree to this work being carried out. This looks a lot like the classic case of tress being cut on my land by mistake. On what basis am I to be liable for that? Is it not simply cleaning another man’s shoes?

 

On the other hand, we are told that Parkinson v Royal College of Ambulance may still be good law, so that’s a pleasant surprise.

 

Best,

 

Matthew

 

Matthew Hoyle

Barrister

One Essex Court

 

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---------- Forwarded message ---------
From: Lionel Smith <0000026f93a2a9e6-dmarc-request@lists.mcgill.ca>
Date: Sat, Oct 21, 2023 at 5:54 PM
Subject: [RDG] Attorney General of Trinidad and Tobago v Trinsalvage Enterprises Ltd.
To: <ENRICHMENT@lists.mcgill.ca>

 

Greetings again,

 

I would be interested to know whether there are any views on the holding in Attorney General of Trinidad and Tobago v Trinsalvage Enterprises Ltd., [2023] UKPC 26.

 

This was an appeal from Trinidad and Tobago in which legislation required that public works contracts with the government of Trinidad and Tobago, above a threshold value, had to be approved by a Central Tenders Board (the “CTB”). The plaintiff Trinsalvage tendered on a call for tenders to do extensive work; its offer was accepted by the relevant Ministry; work was done and paid for; but in relation to some extra work, which under the contract would have entitled them to $5 million, payment was refused on the ground that the contract was invalid in the absence of approval of the CTB. There was no issue of illegality.

 

It was common ground [21] that “the three essential elements for an unjust enrichment claim could here be made out by Trinsalvage.” The only question was the interaction with the statute: would a claim in unjust enrichment stultify the policy of the legislation requiring CTB approval. According to the majority (in a judgment (or advice) written by Lord Burrows, with whom Lord Kitchin, Lord Hamblen and Lady Rose agreed), the answer was no and so the claim was allowed. 

 

Lord Briggs dissented; he said that no restitutionary claim should be allowed, as allowing it would undermine the whole goal of the statute, which is that such contracts had to go through the approval of the CTB, a body independent of the government. 

 

Here are some random thoughts of my own:

 

1. Does the word “stultification” stand for anything other than ordinary statutory interpretation? 

 

2. In 1999, due to a change in the rules of court for England and Wales, the English word “plaintiff” (which the OED dates to 1325) was dropped in favour of “claimant” for pleadings in that jurisdiction. Should this local change in rules of court change the English language in other places? (You may detect that this is a leading question.)

 

3. Is it just me, or have dissents in the JCPC gone from being extraordinary to being … ordinary?

4. At [18] the majority states that:

 

… it is well-established … that a restitutionary claim in the law of unjust enrichment has three central elements which the claimant must prove. These elements are that the defendant has been enriched, that the enrichment was at the claimant’s expense, and that the enrichment at the claimant’s expense was unjust (ie that there was an “unjust factor”).

 

Lord Burrows then cites at [19] from Samsoondar v Capital Insurance Co Ltd [2020] UKPC 33, [18] to say that that the pleadings should identify facts that satisfy these three elements.

 

My question is: how does this sit with the unanimous statement of the UKSC in ITC [41] that the three elements of the three-part test 

 

…are no more than broad headings for ease of exposition. … the questions are not themselves legal tests, but are signposts towards areas of inquiry involving a number of distinct legal requirements. In particular, the words “at the expense of” do not express a legal test … 

 

Do we typically (he asks, as one with no pleading experience) organize pleadings by broad headings which are not legal tests? Should we rather be organizing them by the “distinct legal requirements”? Or, do Samsoondar and Trinsalvage signal a move away from what was said in ITC?

 

Lionel

 

 

 

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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 <lionel.smith@mcgill.ca>.