The mortgage advance had been against an express requirement that the client use the property as his private residence. After the client defaulted, the appellant lender discovered that the solicitors acting for themselves and the lay client had known of his intention to use it as a guest house. The Society now appealed against strike out of its claim for restitution from the solicitors.
Held: The appeal failed. This was not a claim in restitution: ‘any claim to restitution raises the questions: (l) has the defendant been enriched? (2) If so, is his enrichment unjust? (3) Is his enrichment at the expense of the plaintiff? There are several factors which make it unjust for a defendant to retain the benefit of his enrichment; mistake is one of them. But a person cannot be unjustly enriched if he has not been enriched at all. That is why it is necessary to ask all three questions and why the fact that a payment may have been made, e.g. by mistake, is not by itself sufficient to justify a restitutionary remedy. ‘
Judges:
Millett, Morritt, Brooke LJJ
Citations:
[1998] 4 All ER 202, [1998] EWCA Civ 686
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Mothew (T/a Stapley and Co) v Bristol and West Building Society CA 24-Jul-1996
The solicitor, acting in a land purchase transaction for his lay client and the plaintiff, had unwittingly misled the claimant by telling the claimant that the purchasers were providing the balance of the purchase price themselves without recourse . .
Cited – Holland v Russell 13-Jun-1861
holland_russell1861
Insurance. Suppression of material fact. Principal and agent. Money had and received. A, as agent for a foreign owner, entered into a policy of insurance on a ship in the usual form. At the time of effecting the insurance, A was in possession of a . .
Cited – Barclays Bank v WJ Simms and Cooke (Southern) Ltd QBD 1979
The customer made out a cheque to pay his builder, but countermanded it. The bank paid the cheque when it was presented by mistake, and now sought repayment from the builder.
Held: The bank succeeded. The court discussed the extent of a . .
Cited – Re Chapman ex parte Edwards CA 1884
The solicitor for the petitioning creditor was liable to account to the trustee for money which he had received from the debtor after he (necessarily) had notice of the act of bankruptcy on which the petition was founded and which he had paid to his . .
Cited by:
Cited – Jeremy D Stone Consultants Ltd and Another v National Westminster Bank Plc and Another ChD 11-Feb-2013
The claimants asserted an equitable claim against funds held by the defendant bank in the name of a company owned by another defendant who they said defrauded them through a Ponzi investment scheme.
Held: The claim failed. On the evidence, the . .
Lists of cited by and citing cases may be incomplete.
Torts – Other, Equity
Updated: 30 May 2022; Ref: scu.144164