Restitution Discussion Group Archives
| Sender: |
Robert Stevens |
| Date: |
Fri, 23 Mar 2001 12:23:32 |
| Re: |
Change of position |
Andrew Burrows
wrote -
2. As I understand the "novel and ingenious argument"
that Robert Walker LJ found convincing in Derby v Scottish Equitable,
it is that the defences of change of position and estoppel are mutually
exclusive because change of position operates to knock out the detriment
required for estoppel. Much as I support the withering away of estoppel
now that we have change of position, I do have some concerns about this
argument: (1) Couldn't the defendant overcome the argument by
simply saying: "I am here invoking the estoppel defence not the change
of position defence" ie apply estoppel first. I don't think that the defendant can overcome the logic
of junior counsel's ingenious argument in this way. The very availability
of the defence of change of position means that the expenditure has not
been detrimental.
(2) If the argument were correct, wouldn't
it mean that, irrespective of the development of the change of position
defence, a restitutionary claimant could always have defeated the estoppel
defence by conceding that its claim for a mistaken payment was limited
to the payment minus the defendant's detriment? Eg in Robert Walker
LJ's example, by formulating the restitutionary claim as one for £750
rather than £1000? If so, the argument is not so much one of principle
against the continuation of estoppel, but rather one indicating how
tactically that defence can, and always has been able to, be avoided.
Maybe so. Perhaps no bad thing. It is perhaps a comfort
for us to discover that the law actually is what commentators have been
arguing it ought to be.
(I wish I'd thought of it.)
Robert Stevens
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