I think there is an analogy to be drawn here with Woolwich-type cases. To recover money from a public authority which you paid although it was not due, you must first ask the court to declare that the money was not due, and then ask the court to declare that you are therefore entitled to repayment. It may be 'obvious' that once the court has made the first declaration it ought to make the second declaration too, subject to defences, but that doesn't detract from the fact that you have to ask for both declarations if you want to be sure of getting your money back. For until the second declaration is made, positively affirming the defendant's duty to repay the money, it is not legally obliged to do so, however morally undesirable it may be for the defendant to keep it.

This point was recently made by Pill LJ in R v Barnet Magistrates' Court, ex p Cantor [1998] 2 All ER 333, at 345, where he said: 'Neither the justices' clerk nor the Crown Prosecution Service have shown any appetite for retaining money paid pursuant to an unlawful order but the £30,000 is at present to be regarded as public money and the justices, understandably would, before releasing the money, require a plain statement from the Court that it is lawful to do so.'

By the same token, I should have thought that to recover the Archer libel damages the paper would have to ask the court to say both (i) that the previous court order directing the paper to pay the damages should be overturned - and as Steve says, procedural rules would no doubt affect the question whether it would succeed in doing this; so far as I understand the facts, I would have thought that to succeed on this point the paper had uphill work ahead of it - and (ii) that the money should therefore be returned because it would be unjust in the light of the first declaration to allow Lord Archer to hang onto it.

My own view of the unjust factor at work in this sort of case is that the retention of payments made pursuant to an improper application of legal process should be deemed unjust as a matter of public policy, the policy in question being the preservation of the integrity of the rule of law. In principle I would not have thought that a defendant in this type of case should automatically be classed as a 'wrongdoer' and so refused the change of position defence, since I can imagine cases in which D might have acted in good faith in unleashing the terrors of the law against P, eg because he bona fide thought he was entitled to do so. Where D has acted in bad faith, however, that in itself ought to be enough to deny him access to the defence, following Lipkin Gorman.

Dr Charles Mitchell
Lecturer in Law
School of Law
King's College London
Strand
LONDON WC2R 2LS

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