IMPLICATIONS OF MENELAOU FOR THE LAW OF UNJUST ENRICHMENT: ‘ALL THE WORLD’S A STAGE’: THE SEVEN AGES OF UNJUST ENRICHMENT Professor Graham Virgo Professor of English Private Law University of Cambridge Pro-Vice-Chancellors’ Office

Shakespeare, As You Like It, Act 2, scene VII All the world's a stage, And all the men and women merely players; They have their exits and their entrances, And one man in his time plays many parts, His acts being seven ages…. … And then the justice, In firm round belly with good capon lined, With eyes severe and beard of formal cut, Full of wise saws and modern instances;

A Brief History of the Law of Unjust Enrichment (a)The conception of Unjust Enrichment Moses v Macferlan (1760) 2 Burr 1005 United Australia Ltd v Barclays Bank Ltd [1941] AC 1, 28 ‘These fantastic resemblances of contracts invented in order to meet requirements of the law as to forms of action which have now disappeared should not in these days be allowed to affect actual rights. When these ghosts of the past stand in the path of justice clanking their medieval chains the proper course for the judge is to pass through them undeterred.’ (Lord Atkin)

A Brief History of the Law of Unjust Enrichment Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32, 61 ‘It is clear that any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is to prevent a man from retaining the money of or some benefit derived from another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or tort, and are now recognised to fall within a third category of the common law which has been called quasi-contract or restitution.’

A Brief History of the Law of Unjust Enrichment (b) The birth of unjust enrichment Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32, 61. ‘It is clear that any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is to prevent a man from retaining the money of or some benefit derived from another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or tort, and are now recognised to fall within a third category of the common law which has been called quasi-contract or restitution.’ Lipkin Gorman v Karpnale [1991] 2 AC 548

The facts Rush Green Hall - £2.2 million borrowed from Bank of Cyprus Great Oak Court – purchased for £875,000 - given to Melissa to be held on trust Bank sanctioned the arrangement on the basis that it would have a charge over Great Oak Court. Melissa unaware. The charge was void.

Unjust Enrichment (i) whether the defendant had been enriched; (ii) whether the enrichment was at the claimant’s expense; (iii) whether the enrichment was unjust; and (iv) whether there were any defences available to the defendant. These are ‘broad headings for ease of exposition’ (Lord Clarke). Unjust enrichment claim distinct from claim to vindicate property rights.

Enrichment (i)The freehold of Great Oak Court; or (ii)receipt of the freehold uncharged. ‘In so far as the quantification would result in an unfair or oppressive sum, the court could adjust the sum to avoid any unfairness or oppression.’ (Lord Neuberger)

At the expense of the claimant ‘there was in reality a single transaction, and it was from that transaction that Melissa directly benefitted, even though the benefit was effected at the direction of the Menelaou parents. The benefit to Melissa was direct because it arose as the immediate and inevitable result of the very transaction to which she was party and which gave rise to the unjust enrichment…’ (Lord Neuberger)

The ground of restitution (i)Mistake But surely a misprediction: Pitt v Holt; Futter v Futter [2013] UKSC 26, [2013] 2 AC 108. (ii) Total failure of basis But the basis needs to be shared or communicated to the defendant: Giedo van der Garde BV v Force India Formula One Team Ltd [2010] EWHC 2373 (QB), [286] (Stadlen J).

Defences (i) Change of position (ii) Bona fide purchase

Remedy Banque Financière de la Cité v Parc [1999] 1 AC 221 Foskett v McKeown [2001] 1 AC 102 Orakpo v Manson Investments Ltd [1978] AC 95 Menelaou: there is a ‘flexible approach to the remedies appropriate in a particular case’ (Lord Clarke) Boscawen v Bajwa [1996] 1 WLR 328 Cf. FHR European Ventures LLP v Cedar Capital Partners LLC [2014] UKSC 45, [2015] AC 250

An alternative proprietary analysis (i)Express trust (a) Held by the solicitors for the Bank (b) Held by the solicitors for the parents (ii) Resulting trust: Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567.

The state of the law ‘the standard response to unjust enrichment is a monetary restitutionary award in order to reverse the unjust enrichment’. (Lord Clarke) “Last scene of all, That ends this strange eventful history, Is second childishness and mere oblivion, Sans teeth, sans eyes, sans taste, sans everything.”