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1 An Introduction to Equity 1.4.3 Unjust enrichment

The law of unjust enrichment was recognized by the House of Lords in 1991, 78 but this was simply the formal recognition of a doctrine the elements of which had been developing for many hundreds of years, and this historic development remains relevant to the contem porary understanding of unjust enrichment. 79 Much of this development had occurred in the Common Law, but Equity had a significant influence on that development too. The es sence of the law of unjust enrichment is that, where the defendant has been enriched at the expense of the claimant in circumstances which fall within one of the recognized grounds of restitution, a restitutionary remedy will be awarded which is assessed by reference to the value of the enrichment received by the defendant. 80 The function of restitutionary reme dies is to correct what has been described as ‘normatively defective transfers of value’ from one party to another by restoring the parties to their pre-transfer position. 81 A transfer of value will be ‘normatively defective’ if one of the recognized grounds of restitution can be identified, such as mistake, duress, or a total failure of the basis for the transfer. These grounds were all developed by the Common Law. But Equity has influenced the interpreta tion and recognition of the grounds of restitution too. So, for example, the defendant will be liable to make restitution to the claimant of the value of any benefit received if the defen dant unduly influenced the claimant to transfer the benefit or the defendant induced the claimant to transfer the enrichment as the result of a non-fraudulent misrepresentation. This equitable jurisdiction within the law of unjust enrichment will be especially sig nificant if the defendant has unconscionably induced the claimant to make a gift to the defendant. So, for example, in Allcard v Skinner , 82 the claimant was a nun who was per suaded by the defendant, her Mother Superior, to make gifts to her. Eventually, the claim ant left the convent and, some years later, sought to recover the gifts. It was held that she would have been able to do so but for the delay in bringing the claim, on the ground that she had been unduly influenced by the defendant to make the gifts. Similarly, where the claimant has mistakenly made a gift to the defendant by deed, the defendant will be re quired to make restitution to the claimant if it would otherwise be unconscionable for the defendant to retain the gift. 83 1.4.4 Land law Equity has had a profound influence on the development of land law, both as regards the recognition of different interests in land, 84 and by protecting particular property interests. This is illustrated by three examples. The first concerns the law of mortgages. At Common Law, a mortgagee would be able to retain the mortgaged property if there was the slight est delay in the mortgagor discharging the mortgage. This was considered to be unfair in Equity and so the equity of redemption was developed as a mechanism for avoiding the © Oxford University Press 78 Lipkin Gorman (a firm) v Karpnale Ltd [1991] 2 AC 548. 79 The Commissioners for Her Majesty’s Revenue and Customs v The Investment Trust Companies [2017] UKSC 29, [2018] AC 275, [40] (Lord Reed). 80 Banque Financière de la Cité v Parc (Battersea) Ltd [1999] 1 AC 221, 227 (Lord Steyn). The different ques tions which need to be considered to establish unjust enrichment have been described as ‘signposts towards areas of inquiry’ rather than being ‘legal tests’: The Commissioners for Her Majesty’s Revenue and Customs v The Investment Trust Companies [2017] UKSC 29, [2018] AC 275, [41] (Lord Reed). 81 The Commissioners for Her Majesty’s Revenue and Customs v The Investment Trust Companies [2017] UKSC 29, [2018] AC 275, [42] (Lord Reed). 82 (1887) 36 Ch D 145. 83 Pitt v Holt [2013] UKSC 26, [2013] 2 AC 108. See Section 9.3.3, p. 296. 84 See Section 1.5.1, p. 19.

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