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I don't think any of this was assumed on the facts of the case. Indeed, Sempra argued that if the Government had changed its position then bars, such as the unlawful nature of the demand, would apply. But, just as it was unnecessary to decide the appropriate label to put on this defence, it was also unnecessary to explore its scope because there was no evidence that the Government had dissipated the time value of the money. But, in future cases, the scope of this defence (however it is labelled) will be of crucial importance.

JE

From: Elise Bant
Subject: Re: [RDG] Sempra
Date: Thu, 19 Jul 2007 11:04:04 +0100

I agree with James. I would add that it seems to have been assumed that the Government was an 'innocent' recipient and, on that basis, the change of position defence should be open. But there are two further, related issues, both of which raise a possible policy bar to the defence. The first is that the Government obtained the benefit in breach of statute. On the unjust enrichment claim, that breach is incidental to the action and so might be thought to be irrelevant to the application of the defence (the Government is only an 'incidental' wrongdoer and so the bar alluded to by Lord Goff in Lipkin Gorman should not apply.). The second is that one of the pleaded grounds for restitution - namely that the benefit was conferred pursuant to an unlawful demand - may not be the kind of claim to which the defence automatically applies. In both cases, I think it would be necessary to consider whether permitting the change of position defence would undermine the policy of the statute in question.