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A little while ago, Charles Mitchell told us about Portman Building Soc v Hamlyn Taylor Neck (a firm), 22 April 1998, where Millett LJ rejected an action for restitution as 'entirely misconceived', since the society had not been enriched by its receipt of the money.

If I understand this correctly, his point is that if the plaintiff still has title to the money, the defendant is not enriched by its receipt. Similarly, if I understood correctly Bill Swadling's LMCLQ piece on Bishopsgate v Macmillan, then he makes a similar point. If that is their point, then I think I disagree. Right now, and tentatively, I think that the relevant criterion of enrichment is that the defendant *has* the money, not that he *owns* it. A defendant who has the money can use it, and thus has the benefit of it. In such a case, the defendant is enriched.

It may turn out that the defendant never owned the cash. Let it be that he did not own it at law because the plaintiff did. As I understand correctly the consequence of the absence of a vindicatio at common law, the only means of asserting common law title to money is by means of a personal action such as the action for money had and received. In such a case, the plaintiff's proprietary interest in the money is the foundation of the personal action. On the other hand, to say that if the plaintiff had title, the defendant is not enriched, and therefore no action for restitution (such as the action for money had and received) may lie, is to eviscerate the action. Rather, the position is that the plaintiff's title at law is the basis of the action for money had and received. Now, take the position where the plaintiff owned the money in equity. If there can be a personal action to vindicate the proprietary right at law, why can there not be a similar action in equity ? (Cp Lionel Smith's LQR note on Gold v Rosenberg and Citadel v Lloyds). In either case, the plaintiff's title (at law or in equity) does not deny the fact that the defendant has had the use of the money, and thus had that benefit. He may never have owned the money, but that does not change the fact that he has been benefited and thus enriched by its receipt.

Am I totally on the wrong track here ?

Thanks,

Eoin

EOIN O'DELL
Barrister, Lecturer in Law

Trinity College
Dublin 2
Ireland

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

Live Long and Prosper !!
(All opinions are personal; no legal responsibility whatsoever is accepted.)