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Published online by Cambridge University Press: 16 January 2003
Where two parties are liable in respect of the same obligation and one party discharges the obligation, he may be able to recover some or all of his outlay from the other. This article addresses the rationale underlying the relief granted in such circumstances. While restitution theorists tend to emphasise the claimant’s lack of choice, it is argued that this focus is misleading. Moreover, using unjust enrichment to explain relief is unnecessary and inaccurate. An alternative explanation is put forward, which derives support from the case law on contribution—that relief aims to ensure equitable distribution of the burden of liability.
I wish to thank Richard Nolan, Craig Rotherham and Michael Prichard for their comments on earlier drafts.
1 Virgo, G., The Principles of the Law of Restitution (Oxford 1999)Google Scholar (hereafter Virgo, Principles), p. 224.
2 Ibid., p. 223.
3 Ibid., p. 224.
4 Birks, P., Introduction to the Law of Restitution (Oxford 1989)Google Scholar (hereafter Birks, Introduction). Two recent works by Birks suggest that he has quietly changed his mind on this issue: see Birks, P. and Mitchell, C., “Unjust Enrichment”, in Birks, (ed.), English Private Law (Oxford 2000)Google Scholar, paras. [15.150]–[15.155] and Birks, P., The Foundations of Unjust Enrichment: Six Centennial Lectures (Victoria University Press 2002), pp. 71–72Google Scholar. He no longer believes that relief here should be explained by reference to the vitiation of the claimant's intent and makes no reference to any concept of ‘legal compulsion’. He still views the relief granted in such circumstances as a response to the unjust enrichment of the defendant but now regards the defendant's enrichment to be unjust “for reasons of policy”, namely “the policy in favour of matching burdens and benefits”. However, he does not acknowledge the shift in his stance on the issue or give any reasons for it.
5 This is also the case with duress, failure of consideration etc.
6 H. Dagan “Mistakes” (2001) Texas Law Review 1795, 1798-1799.
7 [1999] 2 W.L.R. 1292.
8 Virgo, Principles, p. 188.
9 [1976] Q.B. 402, at pp. 409-410.
10 [1999] 2 W.L.R. 1292, at pp. 1300H and 1303F-G.
11 Moran, M. “Rethinking Winnipeg Condominium: Restitution, Economic Loss, and Anticipatory Repairs” (1997) 47 University of Toronto Law Journal 115, 145Google Scholar.
12 Cane, P., The Anatomy of Tort Law (Oxford: Hart Publishing 1997), pp. 197–204Google Scholar.
13 (1787) 2 Bos. & Pul. 270, at p. 273.
14 [1992] Q.B. 887, at pp. 891-892.
15 [2002] UKHL 14, para. [2], Lord Hope made a similar comment at para. [37].
16 Virgo, Principles, p. 239.
17 (1915) 84 L.J.K.B. 1986.
18 [1992] Q.B. 887, at p. 898.
19 Ward L.J. in Royal Brompton Hospital National Health Service Trust v. Watkins Gray International (UK) [2000] EWCA Civ 120, para. [36], a judgment which was confirmed in the House of Lords: see [2002] UKHL 14. In the Scottish case of Caledonia North Sea Ltd. v. London Bridge Engineering Ltd. [2000] S.L.T. 1123, the Lord President did suggest that contribution was based on unjust enrichment (at pp. 1141L-G). However, (1) these remarks are unnecessary to his decision, (2) they conflict with those of Lord Coulsfield (at pp. 1198H-I), (3) there is no suggestion he subscribes to Birks's four stage inquiry, (4) his detailed explanation of the rationale (at pp. 1141H-I) is in fact in very similar terms to mine.
20 The only reference to unjust enrichment being in the context of a rejected argument in Eastgate Group Ltd. v. Lindsey Morden Group Inc., Q.B. Div. (Commercial Court), 22/3/01, paras. [28]-[34]. A similar comment was made on appeal by Longmore L.J.: see [2002] 1 W.L.R. 642, para. [21].
21 [1991] 2 A.C. 548.
22 This article will not attempt to define when it is “fair”. This task is necessary irrespective of which approach is adopted and so such a definition would not help to choose between them.
23 When the Civil Liability (Contribution) Act 1978 applies: Downs v. Chappell [1996] 3 All E.R. 344 at p. 363 per Hobhouse L.J. (Roch and Butler-Sloss L.JJ. agreeing). The Act does not apply in the case of common debts, where the burden is shared equally.
24 R. Williams “Preventing Unjust Enrichment” [2000] R.L.R. 492, 508, in the context of simple subrogation.
25 [1892] 2 Q.B. 452.
26 Op. cit., at pp. 507-508.
27 [2000] S.L.T. 1123.
28 Ibid., at pp. 1138J-L, 1142E-F and 1143F-I. No doubt was cast on this aspect of the judgment by the House of Lords: see [2002] UKHL 4.
29 In order that C may take over B's “live” rights of recovery against A.
