Unjust Enrichment and Public Law A Comparative Study of England, France and the EU

This book examines claims involving unjust enrichment and public bodies in France, England, and the EC. A central focus of the work is to explore the law as it now stands in the UK following cases such as Woolwich EBS v IRC and cases involving swaps transactions. The author argues that so far these cases have been viewed from either a public or private law perspective, whereas in fact both branches of the law are relevant, and that the courts ought not to lose sight of the public law issues when a claim is brought under the private law of unjust enrichment. No understanding of cases concerning public law illegality can be complete without an examination of cases where that illegality is provided, not by domestic public law, but by the law of the EC. Thus a further aspect of the book is that it investigates the division of labor between the European courts and the domestic courts in such cases, and examines the extent to which the two relevant issues, public law and unjust enrichment, a

This book examines claims involving unjust enrichment and public bodies in France,England and the EU. Part 1 explores the law as it now stands in England and Wales as a result of cases such as Woolwich EBS v IRC, those resulting from the decision of the European Court of Justice (ECJ) in Metallgesellschaft and Hoechst v IRC and those involving Local Authority swaps transactions. So far these cases have been viewed from either a public or a private law perspective, whereas in fact both branches of the law are relevant, and the author argues that the courts ought not to lose sight of the public law issues when a claim is brought under the private law of unjust enrichment, or vice versa. In order to achieve this a hybrid approach is outlined which would allow the law access to both the public and private law aspects of such cases. Since there has been much discussion, particularly in the context of public body cases, of the relationship between the common law and civilian approaches to unjust enrichment, or enrichment without cause, Part 2 considers the French approach in order to ascertain what lessons it holds for England and Wales. And finally, as the Metallgesellschaft case itself makes clear, no understanding of such cases can be complete without an examination of the relevant EU law. Thus Part 3 investigates the principle of unjust enrichment in the European Union and the division of labour between the European and the domestic courts in the ECJ's so-called 'remedies jurisprudence'. In particular it examines the extent to which the two relevant issues, public law and unjust enrichment, are defined in EU law, and to what extent this remains a task for the domestic courts.

Part 1 Unjust Enrichment and Public Law in England and Wales 1—Definitions and Controversies 'RESTITUTION' OR 'UNJUST ENRICHMENT' Using the Map The Criteria for a Claim in 'Autonomous' Unjust Enrichment 'PUBLIC BODIES' AND 'PUBLIC LAW' CONCLUSION 2—Woolwich and the Creation of the Public Law Reason for Restitution THE FACTS THE BACKGROUND TO THE CLAIM A WHOLLY PRIVATE APPROACH? POTENTIAL UNJUST FACTORS AVAILABLE TO THE WOOLWICH Duress or Colore Officii Inequality No Consideration Failure of Consideration Mistake of Law TWO NEW OPTIONS FOR RECOVERY WHAT IS THE WOOLWICH UNJUST FACTOR? Illegality Incapacity Absence or failure of basis Inequality A WHOLLY PUBLIC APPROACH: COULD RESTITUTION SIMPLY BE A RESPONSE TO A PUBLIC LAW EVENT? THE SOLUTION: A HYBRID APPROACH 3—The Scope of the Public Law Reason for Restitution THE SCOPE OF THE PUBLIC LAW REASON FOR RESTITUTION: EIGHT KEY QUESTIONS Need There Have Been a Demand for the Public Law Reason for Restitution to Operate? Need There Have Been a Protest for the Public Law Reason for Restitution to Operate? To What Extent is the Public Law Reason for Restitution Overridden by Statute? What Exactly Does the Claimant Recover? Is it Always Necessary to Bring Two Separate Cases, One Action for Judicial Review and One Private Law Claim? Over What Subject Matter does the Public Law Reason for Restitution Extend? What Sort of Invalidity Triggers this Reason for Restitution? Which Kinds of Body Will Give Rise to this Reason for Restitution? THE SCOPE OF THE PUBLIC LAW UNJUST FACTOR: RESTITUTION FOR PUBLIC BODIES The 'Swaps' Cases 4—A Hierarchy of Reasons for Restitution THE ADVANTAGES OF THE PUBLIC LAW REASON FOR RESTITUTION OVER THE PRIVATE LAW UNJUST FACTORS REASONS FOR RESTITUTION AND TIME LIMITS: IS A HIERARCHY POSSIBLE? Deutsche Morgan Grenfell v IRC FURTHER ARGUMENTS AGAINST THE HIERARCHY Does Mistake Provide a Broader Ground of Recovery than the Public Law Reason for Restitution? HOW WIDE ARE THE EFFECTS OF THE PUBLIC LAW REASON FOR RESTITUTION? How Wide is the Finding of Ultra Vires? How Far does a Claim in Unjust Enrichment Extend into Consequential Loss? EVIDENCE FOR THE HIERARCHY AND THE ISSUE OF 'CLOSED' SWAPS CONCLUSION 5—Defences WHAT GENERAL IMPLICATIONS DOES THE HYBRID NATURE OF THE REASON FOR RESTITUTION HAVE FOR DEFENCES? TIME LIMITS PRIVATE LAW DEFENCES Change of Position Estoppel Bona Fide Purchase Impossibility of Counter-Restitution Submission to an Honest Claim Ultra Vires Passing On SPECIAL DEFENCES IN PUBLIC LAW UNJUST FACTOR CASES Fiscal Disruption The Law Commission's 'Special' Defence of Exhaustion of the Statutory Mechanism Prospective Overruling CONCLUSIONS AND FURTHER IMPLICATIONS Part 1 Conclusions and further implications Part 2 Unjust Enrichment and Public Law in France 6—Public Body Unjust Enrichment Claims in France; Lessons for England and Wales THE PUBLIC/PRIVATE DIVIDE IN FRANCE THE FRENCH LAW OF UNJUST ENRICHMENT Enrichissement Sans Cause Répétition de l'indu Gestion d'affaires ENRICHMENT WITHOUT CAUSE AND PUBLIC BODIES Quasi-Contracts are Automatically Adjusted in their Application to Public Bodies If Courts Have to Choose Between Two Events, Both of which are Actually Relevant to the Basis of the Claim, Some Courts Will Choose One, and Others the Other As well as Adjusting its Quasi-Contracts to Take Account of Public Bodies, French Law Also Distinguishes between Public Law Rules and Public Law Procedure, so that even within the Private Procedure Adjustments can be Made to Take Account of the Public Nature of one of the Parties to the Claim The 'Absence of Cause' Approach does not Necessarily Provide a Better Solution for Public Body Enrichment Cases The Need to Accommodate Public Bodies in Private Claims has a Tendency to Change the Rules of Private Law Itself CONCLUSION Part 3 Unjust Enrichment and Public Law in the European Union 7—Unjust Enrichment and the EU Institutions AN EU LAW OF UNJUST ENRICHMENT? UNJUST ENRICHMENT AS A GENERAL PRINCIPLE OF EU LAW Staff Cases Annulment Cases Three Party Cases UNJUST ENRICHMENT: ONLY A 'GENERAL PRINCIPLE' OF EU LAW CONCLUSION 8—Unjust Enrichment in National and European Law, and the 'Remedies' Jurisprudence of the ECJ HISTORICAL DEVELOPMENT OF THE RELEVANT EUROPEAN UNION LAW THE MEMBER STATE/EU DIVIDE: REMEDIES IN NATIONAL COURTS FOR BREACH OF EUROPEAN LAW The Principles of National Procedural Autonomy, Equivalence and Effectiveness, and the Three Phases of the ECJ's Case Law UNJUST ENRICHMENT AND ULTRA VIRES IN NATIONAL AND EU LAW; TWO DIFFERENT MODELS FOR ANALYSING THE DIVISION OF LABOUR BETWEEN THE MEMBER STATES AND THE EU Two important factors against Model 2 Cases in which a Member State or a National Intervention Agency Levies Money in Contravention of EU Law Cases in which an NIA or the EU Pays Out Money in Breach of EU Law which it then Seeks to Recover IS THERE AN EU LAW 'EVENT' OF ULTRA VIRES IN CASES INVOLVING BOTH EU AND NATIONAL LAW? CONCLUSION—THE IMPACT OF EU LAW ON NATIONAL UNJUST ENRICHMENT CLAIMS INVOLVING PUBLIC BODIES