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This case shows the dangers of being too trigger-happy in allowing recovery for piddling mistakes. A couple of further thoughts:

1. A similar problem arose earlier in the CA. I employ solicitors to handle a lawsuit: they cock it up. I can get damages for the loss of the lawsuit, but can I get back the fees I paid? On normal contractual principles, no. If a contractor does the work, but does it badly, he has a right to be paid (and to keep the payment) subject to a counterclaim for breach of contract: see Hoenig v Isaacs [1952] 1 T.L.R. 1360. But I then discover that my solicitors actually got an unqualified clerk to do the work (but his job was no worse than one of their proper lawyers would have done). Does this change matters? Yes, apparently. Whoopee! See Adrian Alan v Fuglers [2003] PNLR 305.

2. Has the redoubtable Mr Anandh changed his position by doing the work he shouldn't have done?

Best

Andrew T

Date: Thu, 29 Jan 2004 09:32:29 -0000
Reply-To: "Hedley, Steve"
Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues
Subject: [RDG:] New case: ultra vires, mistake, illegality, change of position .. .

A nice little problem in the Court of Appeal, especially for those of us who may be thinking about exam questions around this time. Unfortunately it is just at the pleading stage, so no firm ruling, though there are various observations on the strength of some of the arguments involved.

A ophthalmologist administered numerous sight tests, for which he received payment from the claimant health trust. It later emerged that he was not properly qualified, a qualification certificate having been issued in error. This made it illegal for him to charge for his services (though the precise nature of the illegality isn't awfully clear). Also, there was suspicion that some of his claims for payment may have been fraudulent. He was prosecuted for fraud; critical defects then appeared in the prosecution's case; before a re-formulated prosecution could be brought, he had a heart attack and died. The health trust are now suing for repayment of all monies paid, alleging mistake, illegality and constructive trust; the estate admits that the money must be repaid where no test was actually carried out, but otherwise defends.

Estate of Anandh v. Barnet Primary Health Care Trust [2004] EWCA Civ 5 (27 January 2004).