chapter  2
Change of position is now recognised as a defence in itself to a claim based on the principle of unjust enrichment. Did not the casino in Lipkin change its position when it gave the solicitor who had embezzled the cash the chance of winning a lot of money from the casino? 3 What does change of position do that the equitable defence of estoppel could not do? 4 Will change of position ever be available as a defence to an action for damages? 5 Is tracing an unjust enrichment claim or a claim belonging to the law of property? If a plaintiff can succeed in a tracing claim on the basis of title (ownership), what is the relevance of unjust enrichment? 6 What, if any, is the role of fault in unjust enrichment? 7 D, a manufacturer of ginger beer, deliberately puts only 98 centilitres of beer in bottles sold as litre bottles. Over several years, D makes a profit of £250,000 from this behaviour. Is D entitled to keep this profit? If not, who should have it? 8 D, an employer, deliberately fails to make his workplace safe for his employees. As a result of this behaviour, D makes a saving over the years of £1,000,000. No employee is actually injured, but they have all been exposed to much higher risks of injury than employees working in similar, but safer, workplaces elsewhere. Is D entitled to keep the £1,000,000? If not, who should have it? If the employees had threatened to go on strike and the court had given the employer an interlocutory injunction on the basis of threatened breaches of contract, ought the employer be able to set off against tax the costs of the injunction against his £1,000,000 profit? 9 These recent restitution cases are of interest from a legal system point of view in that they are cases that are openly influenced by academic writing (doctrine). Admittedly, Lord Goff himself is part of this doctrine, but the acceptance of an independent law of restitution appears to be taking English law beyond the position as seen by Lord Diplock in Orakpo v Manson Investments (see p 268). In some ways, this independence is a good thing, as indeed the Roman lawyers discovered. An independent law of restitution not only allows for an orderly distinction between contractual and non-contractual debt cases, but provides a category in which one can class a whole range of common law and equitable remedy cases devoted to the prevention of unjust enrichment. There are, however, problems. 10 The first problem is that an English law of restitution can never fully integrate itself into an English law of obligations, since it uses the law of property as one of its tools; such an intermixing of property and obligation notions is particularly evident in Lipkin Gorman (and see also Agip (Africa), above, p 240). Secondly, the idea that one can build up a logical model of rules founded upon the ‘axiom’ that no one should be enriched at another’s expense is impractical nonsense. Certainly, one may wish to take an Occam’s razor to the old forms of action, but it must be remembered that people who slash about with razors are likely to cut off their own vital
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