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I have come across a case that might be of interest:

Taylor v Hamer 2002 WL 1446261, [2002] EWCA Civ 1130

The case essentially concerns the purchase of a property for £3.25m. The purchaser was particularly interested in some flagstones that lay in one of the gardens of the property and understood them to be included as part of the property. A mere 2 years after the purchase he realised that the flagstones were missing and so brought an action against the purchaser.

In the Court of Appeal, he contended that there had been a breach of contract and the court confirmed that this was in fact the case.

The interesting issue from a restitution point of view is that Taylor was claiming "restitution" in that he wanted the flagstones returned and relayed on his property (alternatively, he would have settled for damages in the form of the cost of replacing and relaying the flagstones for £75 687).

The court granted "restitution" in the case. This seems to be strange for two reasons.

First, if this was indeed a restitutionary remedy, which seems doubtful, should it have been given in the case at all? The case does not seem to warrant restitution for breach of contract in any conceivable way post AG v Blake. Taylor contended that the flagstones were irreplaceable and therefore only their return would be an adequate remedy for him. However, the judges do not seem convinced of this fact (eg. Para 12). Therefore, it appears that damages in the form of "cost of cure" in contract would have been adequate, so why resort to restitution?

Second, even if restitution could have been granted in this case, was the remedy granted actually restitution? The order cannot really be seen as restitution for the breach of contract as there was no gain of which the defendant could be stripped - she never "owned" the flagstones. Further, an order to relay the flagstones cannot really be seen as restitutionary in any way.

Alternatively, the order could be viewed as one for specific performance. However this analysis also has difficulties. Although it seems that the return of the flagstones could be viewed as such, if indeed they were irreplaceable, I don't think the relaying could as there was no obligation under the original contract to "lay" the flagstones. Even if there were such an obligation, damages could be said to be adequate in relation to the relay, therefore preventing an order for specific performance being granted.

It seems to me a totally incoherent use of restitution - anyone else have any thoughts?

Regards
Monica

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monica chowdry