A claim for money had and received fell within section 5 Limitation Act, should be treated with caution. Hobhouse J said: ‘The cause of action in money had and received arises when the relevant money is paid by the plaintiff to the defendant.’
As to the general claim for recovery after unjust enrichment: ‘The position is therefore that if a plaintiff is entitled to a proprietary remedy against a defendant who has been unjustly enriched, the court may but is not bound to order the repayment of the sum with compound interest. If on the other hand the plaintiff is only entitled to a personal remedy which will be the case where, although there was initially a fiduciary relationship and the payer was entitled in equity to treat the sum received by the payee as his, the payer’s, money and trace it, but because of subsequent developments he is no longer able to trace the sum in the hands of the payee, then there is no subject matter to which the rationale on which the compound interest is awarded can be applied. The payee cannot be shown to have a fund belonging to the payer or to have used it to make profits for himself. The legal analysis which is the basis of the award of compound interest is not applicable. (It is possible that in some cases there might be an intermediate position where it could be demonstrated that the fiduciary had, over part of the period, profited from holding a fund as a fiduciary even though he no longer held the fund at the date of trial and that in such a case the court might make some order equivalent to requiring him to account for those profits; but that is not the situation which I am asked to consider in the present case.)’
Hobhouse J
[1994] 4 All ER 972
Limitation Act 1980 5
England and Wales
Cited by:
Followed – South Tyneside Metropolitan BC v Svenska International plc 1995
The question was asked as to whether an anticipatory change of position could support a defence to a claim for restitution: ‘save perhaps in exceptional circumstances, the defence of change of position is in principle confined to changes which take . .
Cited – Fuller v Happy Shopper Markets Ltd and Another ChD 6-Mar-2001
A tenant complained to the landlord about his failure to repair. He ceased paying rent, and the landlord eventually distrained for rent by direct action.
Held: The tenant was unable to claim a legal set-off because there was no context of . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 August 2021; Ref: scu.188269