I agree that B ought not to be unjustly enriched, but B's unjust enrichment is not at A's expense but at C's; therefore the proper plaintiff is C, and to prevent B's unjust enrichment, C and not A should sue. And that is all the "defence" of "passing on" says: it merely says that as between the current parties to the action, the current plaintiff is not the proper plaintiff. For example, in tort, if a defendant breaches his duty of care, we all agree that he should make compensation, but the proper plaintiff is the person who is injured by the breach, not some other person. Thus, if some other person were to sue, the defendant would have as a defence the plea that the current plaintiff is not the proper plaintiff. Likewise here, the recipient must make restitution, but to the person at whose expense he is enriched, not to some other person.

A might have a windfall. So what? A gets a "windfall" in most cases where an account is ordered.

But the difference between A here and the recipient of an account is that in the latter case it is at his expense that the defendant has been enriched, and any windfall in the account comes from difficulties in calculation of the measure of enrichment which are resolved against the defendant. A's windfall here is the same as in the tort example above of a person who was not injured succeeding against a tortfeasor simply because we think that the tortfeasor should pay. Certainly, the tortfeasor should pay, but only the injured party. Likewise, the unjustly enriched defendant should make restitution, but only to the person at whose expense he is in fact enriched. Otherwise we ignore completely the "at the expense of" stage of the enquiry (or, in Canada, the requirement that there be "a CORRESPONDING deprivation".)

EOIN O'DELL
Barrister, Lecturer in Law

Trinity College
Dublin 2
Ireland

ph (+ 353 - 1) 608 1178
fax (+ 353 - 1) 677 0449

(All opinions are personal; no legal responsibility whatsoever is accepted.)
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