From: Enrichment - Restitution & Unjust Enrichment Legal Issues <ENRICHMENT@LISTS.MCGILL.CA> on behalf of Lionel Smith <lionel.smith@MCGILL.CA>

Sent: Friday 18 July 2025 15:06

To: ENRICHMENT@LISTS.MCGILL.CA

Subject: [RDG] Free acceptance

Those who recall with fondness the debates about free acceptance in the 1990s may enjoy reading the decision last month of HHJ Paul Matthews (sitting as a judge of the High Court) in Rogers v Wills [2025] EWHC 1367 (Ch), which itself follows closely on the March judgment of Mr Simon Gleeson (sitting as a deputy judge of the High Court) in H&P Advisory Ltd v Barrick Gold (Holdings) Ltd [2025] EWHC 562 (Ch).

In Rogers, after a meticulous review of the facts and of other areas of the law, the section on unjust enrichment begins at [183]. At [191] the judge describes Robert Stevens' The Laws of Restitution as 'rather stimulating' but goes on to say: 'Of course, I have not the academic freedom enjoyed by Professor Stevens, and must proceed in this case on the basis of what the authorities tell me is the current English law.'

This leads him into a lengthy discussion of failure of basis, followed by an almost equally lengthy examination of free acceptance. Disagreeing with a number of people, including Lord Burrows and Simon Gleeson in the earlier case, HHJ Matthews concludes that free acceptance as a ground of restitution is distinct from failure of basis: 'The unjustness in each case springs from different things.' ([234])

All of this seems however to be obiter, as the judge finds that recovery in contract is available. But he goes on to say that had there been no contract, the defendant would have been liable in unjust enrichment on the ground of free acceptance, but not on the ground of failure of basis.

With best wishes to all,

Lionel

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