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I don't know whether this is of any help, but this case shows nicely how a condictio indebiti functions on the borderline between substantive law and procedure.

We are looking at an action for the recovery of money which was not due. However, as long as the judgment stands, the payment was not indebiti - the judgment being the causa for the payment. Once the judgment is set aside, there is no legal ground for the payment, and the Daily Star could recover.

The Steven Hedley ground for recovery, namely "Once the judgment has been set aside, no-one but a lunatic would deny there is a duty to repay", looks to me like a colloquial formulation of the principle of the condictio indebiti: only a lunatic would deny that you have to give back what you were not entitled to receive in the first place. Steve may or may not be surprised.

English law is different. The "condictio indebiti" or the "lunatic principle", or the mere invocation of "unjust enrichment" will not do; we have to find a specific ground for recovery, or unjust factor. Mistake is normally the best bet, but problematic: was the Daily Star really mistaken about either fact or law? I have my doubts. And if they were not mistaken, can there be fraud? Illegitimate pressure is very difficult - a judgment can hardly be called illegitimate. Failure of consideration will not do, as no consideration was ever to be expected. The broader "failure of basis" may do, but is this not the condictio indebiti in disguise? So we have restitution for wrongs left as a ground for recovery. I think this is the best bet for English law, but this seems to place a clear case of payment which was not due into enrichment for wrongs, which does not normally deal with cases of subtractive enrichment.

This looks like one of the cases where the unjust factor approach is struggling a little - similar to CTN Cash & Carry v Gallagher where indeed recovery was not allowed although payment had clearly not been due - Lord Archer may take some consolation from this case. (The condictio indebiti has its own problems, but that is a different matter.)

-- Gerhard Dannemann
http://iuscomp.org