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Having spent elsewhere my days as a practising solicitor, I am not acquainted with the relevant English legislation. However, my impression is that Sanders v. Isaacs is in a line of cases, which includes Smith v. Sleap (1844) 12 M. & W. 585 and Wakefield v. Newbon (1844) 6 Q.B. 276, and that in Sanders the taxing master was to be asked to assess the quantum meruit. This happened in Smith v. Sleap. The assessment could otherwise have been made by the court, as happened in Wakefield v. Newbon. If my impression is correct then, as in both the earlier cases, the solicitors in Sanders v. Isaacs would in an action for money had and received be found liable to repay so much (if any) of the money paid under protest as exceeded the assessment.

The reason for paying under protest is to exclude any finding (such as that in North Ocean Shipping Co. Ltd v. Hyundai Construction Co. Ltd. [1979] Q.B. 705) that the payment is made pursuant to a compromise of the dispute or otherwise by consent; for recovery is possible in these circumstances only if the money has been paid under compulsion. The compulsion lies in the duty to mitigate one's damages. In other words, as I was taught as an articled clerk and never found to be questioned in practice, the Court would entertain no claim for substantial damages for the conversion of the documents by a plaintiff in Sanders' position, simply because payment under protest would have led to their immediate release. A close analogy is the decision of McCardie, J., in Payzu Ltd v. Saunders [1919] 2 K.B. 581. Of course, if (but only if) it had always been clear that there was no risk of suffering substantial loss through delay in obtaining the documents, Sanders should arguably have sued for their conversion in the ordinary way.

On its facts, so far as my memory of them has been refreshed by the headnote, I believe that the previous paragraph contains a ground, alternative to that given by the House of Lords, for its decision in Woolwich Building Society v. I.R.C. [1993] A.C. 70.

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From: Hector MacQueen
To: restitution@maillist.ox.ac.uk
Subject: RDG: Payments under Protest
Date: 10 August 1999 17:30

One of my Masters students has raised a question about English law which as a humble Scot I find myself unable to answer. It is a quite interesting practical sort of restitution question. If anyone can suggest an answer, I'd be pleased to hear it.

Hector MacQueen

------- Forwarded Message Follows -------
From: "Babette EHMANN"
Organization: Student Mail Service
Date sent: Tue, 10 Aug 1999 12:51:39 +0000
Subject: Dissertation "Payments under Protest - A Case for Restitution?"
Priority: normal

Dear Prof. MacQueen,

I have a question concerning my dissertation "Payments under Protest - A case for Restitution?".

While searching for cases which show that protest could be a significant factor in allowing restitution I came across the case of Sanders v. Isaacs [1971] 1 All ER 755. The case deals with the question of when the client's application for taxation of a solicitor's bill should be allowed if the bill has already been paid. (now s.70 of Solicitors Act 1974). Express reservation of the right of taxation is seen there as a highly important factor in establishing the required "special circumstances".

What I am not clear about is, what exactly happens after taxation? If the taxation established that the bill was to high, can the client automatically claim restitution of the money or does he have to show that there was some unjust factor according to general restitutionary principles?

I have looked in Cordery's Law relating to Solicitors and Halsbury's Law of England but could not find any reference to what happens after the taxation of the bill. I would be very grateful if you had any suggestions on this, maybe were I could find more information?

Thanks a lot for your help.

Babette

Hector MacQueen
Professor of Private Law
University of Edinburgh
Edinburgh EH8 9YL
UK
Tel (UK)-0131-650-2060/4633
Fax (UK)-0131-662-4902

Editor Edinburgh Law Review