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Lloyd's Maritime and Commercial Law Quarterly

UNJUST ENRICHMENT IN ENGLAND AND WALES

Gerard McMeel*

ANNUAL DIGEST

This year has proved a bumper one for the sometimes unloved concept of “free acceptance”, despite, or perhaps because of, Lord Burrows’s pronouncement in Barton v Morris [2023] UKSC 3; [2023] AC 684; [2023] LMCLQ 496 §76, [230], that “free acceptance is not an unjust factor in English law”. Professor Virgo is also a sceptic: G Virgo, The Principles of the Law of Restitution, 4th edn (Oxford, 2024), 139–141. Peter Birks travelled the road from believer to denier, but his intermediate position in “In Defence of Free Acceptance”, in A Burrows (ed), Essays on the Law of Restitution (Oxford, 1991), 105, was perhaps the most persuasive. As a matter of positive law, the safer view would appear to be that “free acceptance” has a secure foothold as a ground for restitution or unjust factor, distinct from failure of basis, C Mitchell, P Mitchell and S Watterson, Goff and Jones on Unjust Enrichment, 10th edn (London, 2022) (“Goff & Jones”), [17.01] and [17.18]. Following on from last year’s rejection of the unjust factor in H&P Advisory Ltd v Barrick Gold (Holdings) Ltd [2025] EWHC 562 (Ch); [2025] LMCLQ 534 §51, there has been further, more hospitable, discussion in Jones v Griffiths §75, RMK Maritime (Europe) Ltd v CMB.Tech NV §78 and Rogers v Wills §79.
The relationship between contract and unjust enrichment has been addressed in RMK Maritime, Lunak Heavy Industries (UK) Ltd v Tyburn Film Productions Ltd §76 and Somerset Equipment Finance (UK) Ltd v Lan Support Ltd §80.
Whilst Rogers v Wills may have generated much interesting discussion of principle in inverse proportion to the sums involved (save from the perspective of the protagonists), perhaps the largest restitution claim in the English courts, running into the billions of US dollars, was the mammoth judgment of Trower J in SC Commercial Bank Privatba nk v Kolomoisky [2025] EWHC 1987 (Ch), concerning misappropriation of monies from what had been Ukraine’s largest bank against two of its founding shareholders and various corporate defendants. However, the governing of law of the unjust enrichment claims was either Ukrainian or Cypriot law. Similar litigation on a major scale saw the trial of the Danish tax authority’s claim for recovery of sums paid on dividend tax refund claims in a sum of some £1.4 billion in the wake of the decision in Skatteforvaltningen (the Danish Customs and Tax Administration) v Solo Capital Partners LLP [2023] UKSC 40; [2024] AC 539; [2024] LMCLQ 505, §83. However, the trial before Andrew Smith J in Skatteforvaltningen v Solo Capital Partners LLP [2025] EWHC 2364 (Comm) resulted in all the contested claims being dismissed because the claimant could not establish inducement for the purposes of misrepresentation. Appeals look likely in both.


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