Restitution an old concept

Restitution v Compensation (most cases) i.e.: remedy of compensation

Unjust enrichment has 4 main elements (confirmed in Banque Financiere) **** sets out the structure.

i) defendant’s enrichment (money is very clearly a benefit to you) (can spend it, can use it) ii) at the claimant’s expense? (did the money come from the bank?) transfer of value from the C or substraction from C … didn’t lose money, but lost time and expertise i.e.: repairing a table iii) was the enrichment unjust? (unjust factors: i.e.: could be a mistake, failure of consideration benefit has passed, but had failed to provide consideration., exploitation) iv) Are there any valid defences? We don’t want the defendant to suffer as well. The claimant doesn’t necessarily gain back everything. (CHANGE OF POSITION THE DEFENDANT RELIED ON THE ENRICHMENT). Reliance, detrimental reliance, links with estoppel. i.e.: textbook, nightout, books. Instead of buying new textbooks, could have bought 2nd hand. Instead of spending the nightout, could have paid individually. The court only look at the gain you still HAVE. They might take away your books, laptop (require to sell off the laptop) depends on REASONABLENESS /SENSIBILITY. So, i.e.: if you spend on HOLIDAY, on other things, i.e.: spend on nightout dinner, the court cant take back anything!

Chase Manhanttan. made 2 payments, only should made 1.
After being made, the bank went bankrupt, found a constructive trust over the 2nd payment. They didn’t know about the mistake, their consciounse was not effected. a person pays money with mistake, can get back through restitution, retain rights in the money and entitled to have it back. Constructive trust arises as soon as mistake arises.

Westdeutche whether entitled to compound interest. The majority held that constructive trust arise until… if compound interest was due, can only be calculated from the day he knew.

Can get restitution because, not just the money, the enrichment is just more than the sum given. Islington could have invest and bought stuff with it, could also avoided to borrow money.

Islington did not have to pay the compound interest.

2007, the inland revenue tax, contrary to EU law, the HoL said that the full restitution, full amount + full interest.

Lord Goff restitution lawyer
Lord Browne – Wilkinson Equity lawyer

Remedial v Institutional
Remedial : A remedy imposed by a judge for the cause of action of unjust enrichment

Institutional: the judge declares the existence of a constructive trust which vindicates a preexisting property right.

Re Goldcorp