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Steve Hedley says

"5. No-one has asked whether the multiplicity of possible grounds tells us something about the breadth and vacuity of the explanatory concepts, or whether it tells us that this is a freak instance of liability."

The "multiplicity" to which he refers is detailed as follows:

"2. If the Daily Star can re-open the case, 6 possible grounds of recovery have been mentioned :
A. Unjust enrichment (Zander)
B. Improper use of process and/or wrongdoing (Mitchell)
C. Failure of basis or of consideration (Scully)
D. Illegitimate pressure (Moore)
E. Fraud (Edelman)
F. Once the judgment has been set aside, no-one but a lunatic would deny there is a duty to repay (Hedley)"

In fact, points B and D clearly fall under A., whilst as a legal explanation of the right to recover point F hardly seems to belong in the list. A claim to recover an unjust enrichment must always specify a ground, or unjust factor, why the particular enrichment in question is unjust. As to point B, a claim to recover a benefit under compulsion is a claim to reverse an unjust enrichment: Goff & Jones, p 457, citing on the specific question under discussion Dr Drury's Case (1610) 8 Co 141b, 143a. As to point D, a claim to recover a payment made for a basis which has failed is a claim to reverse an unjust enrichment - eg Pavey and Mathews Pty Ltd v Paul.

Hedley would say that we cannot refer to a case as supporting an assertion that it is best explained by the established principles of unjust enrichment unless the judges used the exact words "unjust enrichment". Two things: First, those words were used in Pavey and Mathews. Secondly, 99% of all the cases on non-contractual subrogation to date did not use those words. But we know now that those cases are best explained by the established principles of unjust enrichment: Banque Financière de la Cité v Parc (Battersea) [1999] 1 AC 221 (HL).

This second point means that it is quite a legitimate form of legal discourse to say that some older cases, such as those declaring that a litigant has a right to recover money paid pursuant to a judgment later set aside, may be another example of the established principles of unjust enrichment in operation.

Contributions to date should therefore be summarised as follows:

1. Unjust enrichment: Once the judgment is set aside, there is a right to recover the sums paid to Lord Archer, which right is best explained as based on the principles of unjust enrichment, the unjust factor probably being compulsion (Moore, retracting the use of the word 'illegitimate'), or the public policy of upholding the rule of law (Mitchell) or possibly failure of basis (Scully). It may also be that English law is heading towards a system of unjust enrichment in which it is not necessary to establish a specific unjust factor. Instead, the law gives, or should give, a right to recover any money paid which was not due - that is, a condictio indebiti (Dannemann)

2. Restitution for wrongs: If an independent civil wrong can be established Lord Archer may be required to make restitution of the sums gained pursuant to that wrong (Edelman), and it is possible that this right may be forced even without setting aside the first judgment (Birks).

_________________
Jonathon Moore
Christ Church College
Oxford OX1 1DP UK