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Can I focus attention on what appears to me to be an extraordinary statement by Morritt V-C in paragraph 64 that :

"The enrichment was unjust because it was obtained in breach of contract."

The contract in question had not been terminated for breach or otherwise. There is, surely, no English authority to support the proposition that the contract-breaker has been "unjustly enriched" (using that term, as did Morritt V-C, as a term of art) by the breach. Having broken the contract, the wrongdoer comes under concomitant obligation to compensate the other in damages. Any so-called "enrichment" is therefore removed.

Even if Morritt is right, is he not confused as to the remedy? Even if a straightforward breach of contract were to constitute the unjust enrichment of the wrongdoer, the measure of damages is surely the loss (expense) to the innocent party, not the gain to the enriched party?

As a practitioner, I have also questioned the whole issue of the applicability of Blake to a purely commercial context. If Esso wanted the right to reclaim their discount from the Defendant, it should have contracted for it. Why should the Court effective rewrite the contract to protect Esso? Further, why relieve Esso from the problem of quantifying its loss? I suspect Esso was reluctant to undertake this task because it was probably losing money on its downstream petrol sales. It is therefore not surprising that Esso should have prayed in aid the Blake decision since this effectively shifted the burden of the premium damages to the Defendant. But why should the principles in Blake be manipulated simply to give Esso the protection for which it had not contracted and to which, on ordinary contractual principles, it would not be entitled?

David Sandy