It is first necessary to outline Swadling’s case.5 It begins with the proposition that, where an asset is received by a defendant, but property in the asset remains in the plaintiff, it is not possible, so far as the law of restitution is concerned, to identify any relevant “enrichment” of the defendant by virtue of the bare receipt of that asset. Further, even where the original title of the plaintiff is destroyed (for instance, by interposition of a bona fide purchaser or by mixing), the defendant cannot be said to be enriched “at the expense” of the plaintiff. This is because the title to the asset held by the defendant is an original title, not one derived from the plaintiff. It follows that there is no transfer of value to the defendant at the expense of the plaintiff and no basis for the law of restitution to operate. Swadling makes the point that in “ignorance” cases consent to transfer the plaintiff’s property is by definition wholly absent. It follows that in such cases property in the asset received by the defendant will either remain in the plaintiff, or have been destroyed in the ways set out above. In neither event will the law of restitution have any role to play.

Grantham and Rickett agree with Swadling that, where the plaintiff retains title to the asset in question, a restitutionary claim is not normally available.6 However, they argue