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Sender:
Jonathon Moore
Date:
Mon, 22 Nov 1999 17:33:18
Re:
Archer's woes

 

Steve Hedley writes:

' "The question is WHY is it recoverable" answers itself.'

We seem to be having trouble moving away from answering the question "If event X happens, what legal result follows?" by saying "It's obvious!" without more. It seems to me that when a judgment is set aside, we should say that money paid pursuant to that judgment is recoverable because:

1. As things have turned out, there was no legal basis for the payment, and our system of law says that when that is so the payment must be returned; or
2. As things have turned out, the plaintiff's consent to the payment was vitiated in a manner which the law says warrants restitution

The Germans would, I think, say 1. We say 2. In either case, the claim is one where the law raises a right of recovery in order to prevent the defendant being unjustly enriched. The mere fact that the older cases mentioned by Charles Mitchell did not use the words "unjust enrichment" hardly vindicate Hedley's view that the cases had nothing to do with that well-recognised (though only recently articulated) principle.

Of course my analysis of the law's response to the setting aside of a judgment is based on the assumption that the law gives the plaintiff a right to recover money paid under that judgment independently of a court order to that effect. Charles Mitchell cites Pill LJ in R v Barnet Magistrates' Court, ex p Cantor [1998] 2 All ER 333, at 345 and the Law Commission to support the assertion that there is no right of recovery until the court says so. If Charles is correct, then my analysis is wrong.

But in relation to Hedley's views, we can put that to one side, for Hedley and I agree that the "court is [not] *creating* the liability when it gives the requested confirmation". In other words, Hedley and I both say that the right of recovery arises independently of the court order.

So we return to the point at which we started. I say that the right of recovery is raised by the law in order to reverse the defendant's unjust enrichment. He says that the explanation of the obligation is so obvious it does not need explaining.

Jonathon Moore
Christ Church College


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