Lloyd's Maritime and Commercial Law Quarterly
RESTITUTIONARY CLAIMS FOR SERVICES: IDENTIFYING AND QUANTIFYING THE BENEFIT
Charles Mitchell *
Claims in unjust enrichment to recover the value of services raise some special issues that do not arise in connection with claims to recover other types of benefit. The article examines these after setting out the basic principles governing the identification and quantification of benefits in all cases, including services claims.
A. INTRODUCTION
The law of unjust enrichment is concerned with reversing transfers of value between claimants and defendants.1 In Mummery LJ’s words, a claim in unjust enrichment is “not a claim for compensation for loss, but for recovery of a benefit unjustly gained … at the expense of the claimant”.2 The question whether a defendant has been enriched is therefore “centre stage”,3 and proving the defendant’s enrichment “is not merely material to success, but the whole essence of the action”.4 Claims in unjust enrichment to recover the value of services raise some special issues that do not arise in connection with claims to recover other types of benefit. These will be discussed after an account has been given of the main principles governing the identification and quantification of benefits in all cases, including services claims.
B. GENERAL PRINCIPLES OF ENRICHMENT
1. Subjectivity of value
People have different means and spending priorities, and they value benefits differently according to their personal tastes. Consequently, “a benefit is not always worth its market
* Professor of Law, University College London.
1. Commissioner of State Revenue (Victoria) v. Royal Insurance Australia Ltd (1994) 182 CLR 51, 75 (Mason CJ); followed Roxborough v. Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516, [26]; Gribbon v. Lutton [2001] EWCA Civ 1956; [2002] QB 902, [60]; Pacific National Investments Ltd v. City of Victoria [2004] SCC 75; [2004] 3 SCR 545, [25] and [34]; Kingstreet Investments Ltd v. New Brunswick (Department of Finance) [2007] SCC 1; [2007] 1 SCR 3, [32].
2. Boake Allen Ltd v. HMRC [2006] EWCA Civ 25; [2006] STC 606, [175]. See too Lord Wright, “Restatement of the Law of Restitution”, in Legal Essays and Addresses (CUP, Cambridge, 1939) 34, 36; Benedetti v. Sawiris [2010] EWCA Civ 1427, [142].
3. Gibb v. Maidstone and Tunbridge Wells NHS Trust [2010] EWCA Civ 678; [2010] IRLR 786, [32].
4. Deutsche Morgan Grenfell Plc v. IRC [2005] EWCA Civ 78; [2006] Ch 243, [294] (Buxton LJ). See too Sempra Metals Ltd v. IRC [2007] UKHL 34; [2008] AC 561, [28] (Lord Hope of Craighead): “It is the gain that needs to be measured, not the loss to the claimant.”
RESTITUTIONARY CLAIMS FOR SERVICES
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