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