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I have two points to make. The first is short and quick and hopefully nobody will dissent too much. That is that when I read that Banque Financiere was not concerned with recovery for mistake of law but with subrogation I cringe slightly. I am happy to line up with Bill Swadling and say that it was a mistake of law, but I question how Neuberger J can seemingly contrast subrogation with the question of recovery for mistake of law as opposed to fact. The House of Lords as I recall were absolutely convinced that subrogation in the context of the facts of Banque Financiere was a remedy for unjust enrichment, the causative factor being the mistake, which I characterise as one of law, but ultimately for these purposes it doesn't matter whether you think it was a mistake of fact. The mistake triggers the remedy; it must be irrelevant whether that is direct repayment or (on these facts) subrogation.

The second point, which is slightly off on a tangent, is this. Does the question of whether it is a mistake of law or of fact matter, either in this case or generally? I can think of at least one situation off the top of my head where it might matter; however. That is the following. If I buy a desk in a furniture store and forget to pay for seven years and nobody sues me, but then I remember and pay, believing wrongly that the limitation period in contract cases is 10 years instead of the six that is under the Limitation Act 1980 section 5 can I recover? Moses v Macferlan would say that you can't. Even irrespective of that it is trite that you cannot recover for mistake where the money was owed in any case (see Robert Goff J in Barclays v Simms and Lord Hope in Kleinwort Benson), and I think you can base non recovery on that even though it is unenforceable obligation. This of course, as I understand Scots and South African law, and people who know more about that than me can correct me if this is not the case, is analogous to the doctrine that a natural obligation can act as a defence to the condictio indebiti. Does anybody think that it is off the wall to claim that a similar doctrine applies in England? I am coming round to the opinion that it does.

Duncan Sheehan