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Group members may be interested to read this case, now on LEXIS, whose facts are very similar to those of Hinckley & Bosworth BC v Shaw, which I noted at [2000] RLR 355, and which itself is now reported at [2000] LGR 9.

Foster was a former local authority employee whose redundancy package was inflated by his former employer in a way which fell foul of the statutory controls on local authority spending, with the result that the contract under which the payments were made to him was void ab initio. The authority sued to get the money back, and he pleaded change of position. In Shaw, this defence failed because Bell J followed Svenska to hold that you can't have C of P if you rely not on your receipt of money but on the supposed validity of the void contract under which the payments are made, a fine distinction as Colin Mackay QC, sitting as a deputy HCJ, remarked in Foster in the course of allowing the defence:

I believe that as each month from September 1998 went by a payment went into his account and that as month succeeded month [Foster] must have believed, with justification, that the payments would continue and could be relied on to do so. If at any stage he had been told the truth, that no further payment could lawfully be made because the agreement was void, what would he have done? It is not possible to predict this with any confidence, save to say he would certainly have done something. He could have hammered on the Council's door with at least a moral case for some form of reinstatement or non-enhanced redundancy payment. He could have looked for a job elsewhere. He could have considered the position of those who had advised him. The one thing he would not have done is nothing at all. Though the distinction is a fine one I believe it is right to say that in refraining from doing these things he was relying not on the expectation of future benefits under the agreement (such as the enhanced benefits due in September 1999) but on the stream of payments themselves.