“25. At about this time Nigel Chambers carried out the following: (i) Between 2004 and 2007 he helped to resolve issues regarding public rights of way access across the Skelton site; (ii) He met with Leeds City Council and other stakeholders regarding the transfer of the lake at the Skelton site to Leeds City Council; (iii) Between April and July 2005, he represented the joint venture companies in negotiations with Innogy pic concerning a boundary dispute and a dispute about the rights over a disused pipeline; (iv) Between February and May 2006, he worked with the joint venture companies concerning the East Leeds Link Road; (v) Between July and September 2006, he attended a number of different presentations on behalf of SBPL regarding public transport access to the Skelton site; (vi) Between June 2005 and October 2007 he represented the joint venture companies at the Aire Valley Investor Forum and Aire Valley Regeneration Initiative. In this period, he worked closely with lain Robertson a director of SBPL/the Defendant in promoting a housing development at the Skelton site and in the initial stages of the Leeds City Council Local Development Framework Plan to support housing uses at the Skelton site. 26. During 2008 there was continued activity with the Leeds Local Development Framework Plan but by early 2009 James Pitt took over day to day responsibility for the Skelton site. 27. Since that time Nigel Chambers has remained in contact with James Pitt and has offered to assist the Defendant. He has attended the Leeds City Council Plans Panel meetings where the new community and motorway services applications were discussed. He monitored applications including key outline planning applications made by the Defendant in January 2016 and July 2018.”
“65. On22 March 2016 , James Pitt wrote on behalf of the Evans Property Group to Nigel Chambers and denied the existence of a contractual relationship between the Defendant and Nigel Chambers. This was followed by a similar letter dated8 April 2016 from Christopher Hill, the Defendant’s company secretary. 66. Notwithstanding, Nigel Chambers and the Claimant having provided the Defendant with significant amounts of documentation over the past 7 years, the Defendant continues to deny the existence of a contract. Further, the Defendant continues to deny that the Claimant is entitled to receive payment whether under a contract or whether by reason of an estoppel or restitutionary remedy.”
“80. In the further, alternative, the Claimant claims a restitutionary remedy in that the Defendant should not be unjustly enriched at the expense of the Claimant/Nigel Chambers. 81 Nigel Chambers was the introducer of the Skelton site. 82 Further, Nigel Chambers spent thousands of hours working on the potential development both before SBPL had an interest in the Skelton site and since it acquired that interest in 2001. 83 In the 2005-08 period alone Nigel Chambers worked on the project for in excess of 520 hours. Full details concerning the hours spent working on the project will be provided in advance of trial. 84 The Claimant claims a reasonable fee for Nigel Chambers’ work as a land promoter. The case of Mate v Mate[2023] EWHC 238 (Ch) is noted. The court awarded a sum of 7.5% of the uplifted value of the land as a result of obtaining planning permission where work had been carried out over an 8-year period in order to obtain planning permission. In the present case Nigel Chambers worked on the Skelton site project without any remuneration since 1996 and thus the sum awarded should be higher than 7.5% and an appropriate figure would be the 10% of net pre-tax profit.”
“27. As to the third limb of the Claimant’s case, an alternative claim for a restitutionary remedy in quantum meruit, on a proper analysis a reasonable fee payable to Mr Chambers for the work he undertook on behalf of the Defendant would be minimal, or in any event much less than the£5.8m now claimed by the Claimant. Further, the limitation period for such a claim runs from the date the cause of action accrues, which is the date the Defendantreceived the benefit from Mr Chambers. The last instance pleaded in the Particulars of Claim where Mr Chambers provided a service to the Defendant at the Defendant’s request was in early 2009 (see paragraph 26 of the Particulars). It follows that this element of the Claimant’s cause of action is time-barred in any event, and therefore that the final limb of the Claimant’s case must also fail. 28. Finally, by way of an overarching comment, the Particulars in this matter are confusing, and often do not provide proper particulars of the causes of action advanced. The Defendant consequently reserves the right to seek further particulars from the Claimant in the event it becomes necessary to do so, and to amend its case accordingly in response.”
“87. Paragraph 80 is denied. The Defendant was not unjustly enriched at the expense of Mr Chambers. If Mr Chambers had raised a reasonable invoice for the services he provided to the Defendant it would have been discharged. He elected, at his own risk, not to do so. Further, as pleaded above, this will be the subject of expert evidence in due course but on a proper analysis a reasonable fee payable to Mr Chambers for the work he undertook on behalf of the Defendant would be minimal, or in any event much less than the£5.8m now claimed by the Claimant. Yet further, the limitation period for such a claim runs from the date the cause of action accrues, which is the date the Defendant received the benefit from Mr Chambers. The last instance pleaded in the Particulars of Claim where Mr Chambers provided a service to the Defendant at the Defendant’s request was in early 2009 (see paragraph 26 of the Particulars). It follows that this element of the Claimant’s cause of action is time-barred in any event. The Claimant is consequently not entitled to any restitutionary remedy. 88. Paragraph 81 is admitted, but its relevance is denied. Mr Chambers provided this service to White Rose Development not the Defendant and was in any event paid for his services at that time. 89. Paragraph 82 is denied. So far as the Defendant is aware, the work provided by Mr Chambers to White Rose Development and the Defendant was standard for a self-employed property and planning consultant, and was unlikely to involve “thousands of hours”
“47 As to paragraph 27 it is denied that a reasonable fee for the work carried out by Nigel Chambers would be minimal. Further, it is denied that the cause of action would accrue when the Defendant received the benefit from Nigel Chambers. In the present case the limitation would not run from when the services were provided but from when the unjust element occurred. This is when the Defendant first realised profit and refused to pay 10% of the net pre-tax profit to Nigel Chambers. It is expected that this was in 2022 but the precise date will only be ascertainable upon disclosure.”
“The parties have agreed to this claim proceeding by way of a split trial broadly as to: 1. Liability; and 2. Quantum.”
“This agreed list of issues sets out the issues that the Court will be asked to determine at Stage 1.”
“18. Was the Defendant unjustly enriched by Mr Chambers’ services? 19. If the Defendant was unjustly enriched, on what basis should a reasonable fee for the services rendered by Mr Chambers be calculated, i.e. by reference to an hourly rate or to an increase in value of the underlying property? 20. If the Defendant was unjustly enriched by the provision of such services, is any claim in respect of such enrichment in any event time barred?”
“72 If the court should find that a contract did not exist then there has been a failure of basis. This is a total failure of basis. The court is referred to Goff & Jones at 12-16 and also to Barton v Morris[2023] AC 684 where Lady Rose relied on Lord Toulson in Barnes v Eastenders Cash & Carry plc[2015] AC 1 at [106] namely, that the failure of basis “may consist of the failure of a state of affairs on which the agreement was premised”. 73 The court would then need to analyse the enrichment in the same way as the court did in Mate v Mate[2023] EWHC 238 (Ch) at [239]. The stages would be: (i) Has D been enriched? (ii) Was the enrichment at NC’s expense? (iii) Was the enrichment unjust? (iv) If the answers above are all yes then what is the appropriate remedy? 74 D has very obviously been enriched as it is now the beneficiary of owning land which has risen significantly in value as a result of NC’s efforts. The level of profits which D could achieve has steadily increased throughout the past 20 years as can be seen from D’s internal calculations. These profits would have now increased further as a result of the housing based development. 75 NC was the introducer of the land and the promoter of the land who sought to facilitate its development potential. As he was expecting to be compensated for this and having given up short term financial benefit for a hope of a longer term share of profit, it is evident that D’s enrichment was and continues to be at his expense. NC’s further detriment is in the thousands of hours committed to this project over a period of almost 20 years. 76 The enrichment was unjust. In Mate at [249] the judge said “They were enriched by Julie’s services in circumstances which were unjust because they knew she was not providing those services gratuitously and they made no attempt to reward her for them.”
“80 In relation to unjust enrichment, the claim accrues when the Defendant is enriched – see Chitty 32-060. Where the claim is made on the failure of basis, the unjust enrichment occurs when the basis fails. This approach was adopted in Anron Bunkering DMCC v Glencore Energy UK Ltd[2023] EWHC 295 (Comm) . At [45] the deputy judge held that the cause of action accrues when “the state of affairs contemplated as the basis or reason for that payment [had] failed to materialise”
“46. Finally, even if the Court was to be satisfied that the terms of the December 1996 Fax amounted to a binding agreement which required the Defendant to pay Mr Chambers 10% of its profit at any point when it realised such profit from the Skelton site, this claim is, in those circumstances, premature (at least in terms of monetary relief). As set out in paragraphs 83-84 of the Amended Defence ([1/B/8/78-9]), the Defendant says that it will be several years before any final profit from the Skelton site can be identified. It follows that, any payment obligation is therefore yet to accrue, and that the Defendant accordingly cannot be in breach for non-payment.”
“60. The question of whether or not such enrichment is unjust is not an open-ended inquiry into the justice of a particular case, but rather it requires a claimant to plead and prove an ‘unjust factor’. As observed by Mann J in Uren v First National Home Finance Ltd[2005] EWHC 2529 (Ch) 36, it is not the case that “there is a freestanding claim of unjust enrichment in the sense that a claimant can get away with pleading facts which he says leads to an enrichment which he says is unjust … A claimant still has to establish that his facts bring him within one of the hitherto established categories of unjust enrichment, or some justifiable extension thereof” (at [16]). Established categories of unjust factors include, for example, mistake, duress, undue influence, failure of basis, necessity and legal compulsion. There is also seemingly a category of ‘free acceptance’ (see Jones v Griffiths[2025] EWHC 797 (KB) at [23]-[25]).”
“61.d. Similarly, an unjust enrichment claim on the ground of failure of basis accrues when the basis has failed. Where the basis fails immediately, the claim in unjust enrichment will accrue upon the receipt of the benefit. Where the basis fails subsequently, the claim will accrue at the point in time when the basis subsequently fails (Anron Bunkering DMCC v Glencore Energy UK Ltd[2023] 1 WLR 1912 at [39]).”
“63.a. Fundamentally, the Claimant has failed to plead an ‘unjust factor’ which would allow it to satisfy one of the necessary requirements of a claim in unjust enrichment, and it is not clear from the pleading even approximately what such a factor might be said to be. There is a reference at paragraph 47 of the Reply [1/B/9/89-90] to the “unjust element” occurring “when the Defendant first realised profit and refused to pay 10% of the net pre-tax profit to Nigel Chambers” but it is not clear how this pleading could fall within one of the established categories of unjust factors described above. The Defendant says that the Claimant is therefore seeking, as deplored by the Board of the Privy Council in Samsoondar at [19]-[20], to rely on a broad appeal to generic principles of justice to satisfy this limb of the test, which is inadequate for these purposes. If there was any enrichment, therefore, it is not unjust in the necessary legal sense.” “c. Thirdly, the Defendant says that on any analysis, this claim is out of time. As the Claimant has not identified a specific unjust factor that it relies upon the analysis as to when the cause of action has allegedly accrued is necessarily somewhat theoretical but in any event: i. These proceedings were issued on13 February 2024 . The Claimant does not allege that Mr Chambers provided any services to the Defendant later than early 2009 (see paragraphs 26-27 of the Amended Particulars of Claim [1/B/7/45], and paragraph 55 of the Reply [1/B/9/91]). It follows that latest time the Defendant could have received any benefit was in early 2009, some fifteen years before this claim was issued. Under normal principles of limitation, therefore, this claim is significantly out of time. ii. Even if, for the sake of argument, the Claimant were to have advanced a claim which fell within one of the established categories of unjust factors – such as a failure of basis, or free acceptance – this also cannot assist the Claimant, because Mr Chambers was aware that the Defendant was not intending to pay him any profit share from at least 2013. As set out above, on25 February 2013 , almost exactly 11 years before this claim was issued, James Pitt wrote to Mr Chambers to say: “we do not recognise the document you attached and it does not appear to form the basis of a binding agreement. As you know the matter dates back to before my time but nevertheless I am not aware of any other documentation we hold in this regard…Sorry I can’t be of more help” [3/G/292/1373]. Moreover, if there was any possibly ambiguity from that response (which is denied by the Defendant), that was removed in 2016 when Mr Pitt formally wrote to Mr Chambers on22 March 2016 on behalf of the Evans Group to state that he could find no evidence of such a contractual relationship or obligation to pay the profit share, and in the absence of such evidence then the request for a profit share could not be honoured (see [3/G/302/1394]). A concurring letter was then sent to Mr Chambers from the Defendant’s board on8 April 2016 (see [3/G/303/1396]). iii. It follows from this that from at the very latest April 2016 – just under eight years before this claim was issued – Mr Chambers could have been in no doubt that his position, and that of the Defendant, were opposed on this issue. Consequently, even if the Claimant were able to remedy the deficiency in its pleading to rely on an appropriate unjust factor, this claim is nevertheless significantly out of time.” eight years before this claim was issued – Mr Chambers could have been in no doubt that his position, and that of the Defendant, were opposed on this issue. Consequently, even if the Claimant were able to remedy the deficiency in its pleading to rely on an appropriate unjust factor, this claim is nevertheless significantly out of time.”
“MR BLAKER: Yes. And then there's the unjust enrichment. MR JUSTICE LEECH: And then there's the unjust enrichment. MR BLAKER: That's the third element. MR JUSTICE LEECH: And that's the −− MR BLAKER: And we see that at 80, paragraph 80, page 54. It's 80 through to 84. Again, what is said there is that he spent thousands of hours working on the project, that if you found that there was a failure of basis and there was no contract in place −− MR JUSTICE LEECH: No, it's the anticipated contract case, isn't it? MR BLAKER: Exactly. MR JUSTICE LEECH: Although I haven't read Mate v Mate yet. There's a disagreement about it. MR BLAKER: What we say in Mate is in that case, which was a family dispute about development of agricultural −− I think it was agricultural land, the court there awarded 7.5%. They didn't award it on a pure quantum meruit basis, as, for example, like in Cobbe. It's awarded on an uplift because the experts there were all in agreement that a land developer, land promoter, I should say, would ordinarily get an uplift of between and 30%, and what Andrew Sutcliffe KC, sitting as a deputy, found that Julie Mate had only an informal arrangement there, and she shared the work with Persimmon Homes. And so he halved the uplift in terms of the percentage and gave −−instead of 15, she got 7.5. There are other −−I mean, I've simplified the reasons, but we will look at that again on Friday. MR JUSTICE LEECH: Sure. MR BLAKER: What we say there is that there's a very clear benefit. They get the benefit −−the defendant gets the benefit of services over a very long period of time, in excess of 15 years, in the various different identities, and unlocking the potential, the development potential of the land. Again, the failure of basis −−because the limitation point is taken. I should just say on the limitation, there's never been any application before now in relation to limitation. This is the −−whilst it was flagged up in the defence, not pleaded by −−well, Ms Gailey, but not Mr Banner. But it is flagged up, but it never led to any actual applications in that regard. But in terms of the unjust enrichment, again, what we say is that the failure of basis only occurs when the profit is made in 2022, and they turn round and say, "We are not prepared to give you your 10% share". I should note actually on the limitation point, just to cover that off, there is something in the skeleton submissions of the defendant where they say that actually, if the court does find in my client's favour, actually it's premature because in fact overall profits can only be −−will only come in the next few years, and that one shouldn't assess this in terms of an ongoing obligation as the various lands sold. One has to look at the whole project, and that actually we've kind of in a way gone too soon. So I say you certainly can't have it both ways.”
“MR BANNER: Finally then, unjust enrichment. This is obviously an either no contract or an anticipated contract case, however you want to put it as between those two silos. Broadly, we accept we did enjoy some enrichment at Mr Chambers' expense, in that we were −−we benefited from the value of his time services for his work on the business park. And he hasn't asked to be paid for those services on a time basis, and that's where we are with that. But the enrichment we now enjoy is as a result of buying land ourselves, developing it for residential purposes using our money, and therefore sitting on a development of some land which Mr Chambers frankly never had anything to do with. By which I mean the development is something he never had anything to do with. The events that have generated value took place a long time after he parted ways with the project. And that's where we say there is a causal break between the work he did and the enrichment we enjoy. And that means it's not −−that breaks the unjustness. And that's where it's different to Mate, where Julie did work on precisely the application that generated value in the land.” “MR JUSTICE LEECH: So you say that in relation to the housing development, he's not entitled to quantum meruit at all. You say it's just you've not been enriched by the services he's provided. MR BANNER: Correct. It's a temporally distinct episode for the housing development. MR JUSTICE LEECH: If he was entitled to, let's say, payment on a time basis for the earlier work he did in assisting you to get planning permission for the business park, which had value in itself , although not ultimately, that's what −−that's now long −− MR BANNER: That's now time−barred. If one −−it's now −− my learned friend puts this as a failure of basis case. If the basis was, "I won't charge on a time basis for my work on the business park because I expect to get a profit share," he was disabused of that notion in, I think, either 2013 or, at the latest, 2016. That's when the basis fails. MR JUSTICE LEECH: Right. MR BANNER: And that therefore is when the clock starts ticking. He could have at that point issued proceedings for a declaration as to his rights and entitlements, and he didn't. MR JUSTICE LEECH: And to claim quantum meruit. MR BANNER: Yes. MR JUSTICE LEECH: What is the actual limitation here? What is the rule so far as this kind of unjust enrichment claim? MR BANNER: It's treated −−it's a six−year period, and the trick is pinning down when it starts. MR JUSTICE LEECH: When do you say it starts? MR BANNER: We say it's when the basis fails. MR JUSTICE LEECH: And you say that the basis failed? MR BANNER: Once he is aware that the profit share is not going to be something −− MR JUSTICE LEECH: So you're not going to enter into a contract and you're not going to pay? MR BANNER: Yes. Which is, at the latest, 2016. MR JUSTICE LEECH: So if you say, "Well, I'm taking a risk that I will −−you know, that they will be so pleased with my services that they will give me a very lucrative contract." The basis there is having no contract, isn't it ? It's being told, "Well, actually , we are never going to give you a contract, and we are not" −−and do you go further than saying, I suppose, "We are never going to renew it." So the basis fails at that point; is that what you're saying? MR BANNER: One of the difficulties with failure of basis is it can be a bit like constructing a duty of care. A claimant could construct the basis to suit its particular circumstances. But we say, on any footing here, the basis must have failed more than six years before proceedings were issued. MR JUSTICE LEECH: The alternative is: well, time hasn't even begun to run yet, it's only when the profits are earned and you refuse to pay me that time begins to run. MR BANNER: Well, that's not how a failure of basis claim works, we say.” works, we say.”
“Q. Then if you go to 1398 −−sorry, 1399. We see Iain Robertson −−this is the tail−end of an email from Iain Robertson to John Bell. Iain Robertson writes in October 2016 to John Bell, at the top of 1399: "The reason for writing ... is that out of the blue Nigel Chambers contacted me. He got my details from LinkedIn ... Skelton ... are trying to disassociate themselves from the profit share agreement. Obviously, my memory ... is vague ... he has been asking for my help. I recall ... I was not involved directly with Skelton for long and lan Gray took over. I don't want to get involved ... so would appreciate your guidance ... I understand that he may have roped in Geoff Goodwill. I am not taking sides on this but obviously I still have loyalty to you and EPG." So by this stage, we are now at the end of 2016, you have been told pretty unequivocally by Templegate they don't recognise you have a contract. You've been invited to provide documentation. You haven't thought to provide the August 2005 note. You've been in contact with Iain Robertson for some help; presumably that was a dead end. Why didn't you resort to legal proceedings at that stage? A. Yes. This is the point at which I engaged Irwin Mitchell after the letter of 8 April, which requests me in the final paragraph, "happy to consider your written evidence of a contractual arrangement". So I engaged Irwin Mitchell −− Q. Sorry, which letter are you reading from? MR JUSTICE LEECH: 1396. A. The letter of8 April 2016 , page 1396. MR BANNER: In the middle of the second paragraph −− A. The second paragraph. Q. So you engaged Irwin Mitchell in 2016? A. Yes, after this letter. Yes. Q. Right. But you didn't issue proceedings until 2024? A. Yes, because we were trying to resolve our position via Irwin Mitchell, and ultimately Walker Morris, without the necessity of court proceedings.”
“We are instructed to write in response to your letter dated8 April 2016 regarding the profit-sharing agreement between you and our client concerning the development of a site at Skelton, near Leeds. In your letter, a copy of which we enclose, you referred to the fact that the profit-sharing agreement was entered into prior to your current management team’s involvement and, as a result, you were unable to confirm the existence of the same. Your letter invited our client to produce “written evidence of a contractual arrangement” for your consideration which is the context in which we have been instructed. In accordance with your request our client has now procured documentary evidence which proves the existence of the profit-sharing agreement as well as independent witness evidence which corroborates his position and attests to the existence of a profit-sharing agreement to which you and our client are parties. Our client now seeks to agree a process to implement the terms of that agreement.”
“it cannot be said that your Client has fulfilled our Client's original requirement contained in its letter dated8 April 2016 for the production of written documentation to substantiate the position that our Client owes any contractual duties.”
“we do not consider that TDL has any realistic prospect of defending Mr Chambers’ claim.”
“74. In paragraph 72 of the Claimant’s skeleton argument the Claimant suggests – without explanation - that the failure of basis in this case is a “failure of the state of affairs on which the agreement was premised”
“79…b. Even if the Claimant relies on a failure of basis at a later date, however, this cannot assist it, because Mr Chambers was aware that the Defendant was not intending to pay him any profit share from at least 2013. As set out above, on25 February 2013 , almost exactly 11 years before this claim was issued, James Pitt wrote to Mr Chambers to say: “we do not recognise the document you attached and it does not appear to form the basis of a binding agreement. As you know the matter dates back to before my time but nevertheless I am not aware of any other documentation we hold in this regard…Sorry I can’t be of more help” [3/G/292/1373]. Moreover, if there was any possibly ambiguity from that response (which is denied by the Defendant), that was removed in 2016 when Mr Pitt formally wrote to Mr Chambers on22 March 2016 on behalf of the Evans Group to state that he could find no evidence of such a contractual relationship or obligation to pay the profit share, and in the absence of such evidence then the request for a profit share could not be honoured (see [3/G/302/1394]). A concurring letter was then sent to Mr Chambers from the Defendant’s board on8 April 2016 (see [3/G/303/1396]). c. It follows from this that from at the very latest April 2016 – just under eight yearsbefore this claim was issued – Mr Chambers could have been in no doubt that his position, and that of the Defendant, were opposed on this issue. That he was in fact aware of this is also apparent (i) from the fact that he instructed solicitors after receipt of the April 2016 letter and (ii) from the fact that he approached Iain Robertson on LinkedIn in October 2016 to say that the “Skelton JV are trying to disassociate themselves from the profit share agreement” (see [3/G/304/1399]). d. In paragraph 80 of the Claimant’s skeleton argument it was argued (without any explanation) that the “basis only fails in 2022 once profits are made that could be shared with NC”
“Now, what is said against me is that −−again, it's sort of pleading point −−that I haven't expressed with clarity that it's a failure of basis . In my submission, the facts are set out in terms of the narrative with great clarity in that particular claim. We have set it out as to what happened, and that the failure of basis comes, and there is a failure of basis here because when they start making a profit and he pops up and says, "Can I have my 10% share", they say, "No, you can't, you've done all this work and you have brought the land to us and you have worked for all those years and you are not entitled to anything". So I rely in my paragraph 72 to Goff & Jones at 16 12−16 and Barton v Morris, where Lady Rose relies on Lord Toulson in Barnes, that the failure of basis will consist of the failure of a state of affairs on which the agreement was premised. What I say there is that if there has been this failure, then we would be in that territory. Now, again, it's said against me very briefly that Mate isn't relevant and that we're in a very different case to Mate. In my submission, that is not the correct position . Mate −−would you be helped by me taking you to Mate? I'm just conscious of the time. MR JUSTICE LEECH: What do you think? Can I read it to myself? I mean, Mr Banner says that it's a very different case. MR BLAKER: He says it's very different. I say actually this situation is well beyond the territory of Mate because of the length of time, the bringing the land, the sole agent in terms of in Mate – to Mate.”
“MR BANNER: So Mate v Mate turned on two very distinct factors that are absent from this case. One is the judge found as a matter of fact that Julie had −−was causal in releasing the land for allocation. MR JUSTICE LEECH: Yes. MR BANNER: So that was a fact; and therefore that was the benefit that the defendants were on the hook for. He also found that Julie , on the basis of expert evidence, that Julie had fulfilled the role of a land promoter. MR JUSTICE LEECH: Yes. MR BANNER: Now, that, I have to say, I find a questionable finding, but there's not much I can do about it now. A promoter, as I understand it, is someone who takes the financial risk of applying for permission in respect of a piece of land, and if it comes good, they take a cut of the uplift. MR JUSTICE LEECH: Is that actually in the report? MR BANNER: No, no, that's my understanding of what a promoter is. Mr Sutcliffe QC deals with it on the basis of the experts' reports that were before him. MR JUSTICE LEECH: So he says there's a direct analogy with the land promoter? Because I'll have to look at what he says about the expert evidence in that case, but he did have expert, one, that it would have been 15−20%, I think −− MR BANNER: Yes, I do urge you to look at −−it's from about paragraph 275 onwards. Go through Mate, because the longer one spends studying it, the more one realises it's just removed from where we are in this case. MR JUSTICE LEECH: There's no allegation, is there, of the causal connection between −−it's more important maybe for this point, that the −−the pleading point. There's no suggestion that the work Mr Chambers did after the original allocation under the UDP was −− MR BANNER: Causal of the residential development, no.” “Mr Chambers gave evidence that he had −−I think he initially claimed that the land had been allocated as residential in October 2007. That unravelled pretty quickly. That was just, as he ended up conceding, the commencement of a process. And as you know, it wasn't actually allocated until November 2017. So the causal link is just broken. And then, finally, on unjust enrichment, my learned friend puts it as failure of basis. One does have to identify what the basis is though that is said to have been failed, that are said to have failed. We're still a bit in the dark about that. It’s now coming up to 3.50 on the last day. It's just not a – it’s not a coherent or complete claim. It's contract or bust.”
“MR BLAKER: As I say, the failure of basis is quite evident from what Mr Chambers was expecting was for all that work that he carries out, and it leads to a development actually being carried out at the site to be paid for that when he says that he was told that he would be. This wasn't a loose or informal arrangement, but he would be paid his 10% share of the profits If I can turn to my Lord's −− MR JUSTICE LEECH: So the failure of basis is what, being told that, "No, we are not going to pay you 10%"? MR BLAKER: Yes, exactly.”
“MR BLAKER: I have set out there in six bullet points, in six roman numerals, work that was particularly carried out. That work leads and has a direct link to then at paragraphs 81, 82 and 83. Again, it's put quite simply. He's the introducer. He spends thousands of hours developing −−working on the potential development. Then in 83, a little bit more specific as to what he's doing, and that his work was akin to that of a land promoter. So Mate is an authority in my submission that actually is particularly helpful because he does unlock the land. Here he not only gives them that opportunity, but the work that he carries out −−now, the fact that Mr Bell couldn't see it, he had very little day−to−day −−he was busy doing so many other things. He wasn't sort of looking at what Mr −−it was well below his pay grade to be looking at what Mr Chambers was up to. So this is absolutely on all fours with that type of situation as Mate, where Mr Chambers has gone off, worked with others, with others at the defendant, to promote −−to promote this.”
“18. It has now become conventional to recognise (see, eg, Benedetti v Sawiris[2013] UKSC 50 ;[2014] AC 938 , para 10 and Investment Trust Companies v Revenue and Customs Comrs[2017] UKSC 29 ;[2018] AC 275 , paras 24, 39-42) that a claim in the law of unjust enrichment has three central elements which the claimant must prove: that the defendant has been enriched, that the enrichment was at the claimant's expense, and that the enrichment at the claimant's expense was unjust. If those three elements are established by the claimant, it is then for the defendant to prove that there is a defence. The ideal pleading of a statement of case by the claimant should indicate that the claim is for restitution of unjust enrichment and should identify facts that satisfy each of those three elements. While it may be desirable, it is not essential, that the words "unjust enrichment" are used but the claimant must identify sufficient facts to show how those three elements are satisfied: see Goff and Jones, The Law of Unjust Enrichment (eds Mitchell, Mitchell and Watterson, 9th ed (2016), para 1-38). The important purpose of a statement of case is to ensure, as a matter of fairness, that the defendant knows the case it has to meet. 19. Moreover, as regards the third of those elements, the claimant must identify what was referred to by counsel for the claimant - using the term coined by Peter Birks (see, eg, "Unjust Enrichment - a Reply to Mr Hedley" (1985) 5 Legal Studies 67, 71; Restitution - the Future (1992), p 41) - as the "unjust factor" and is sometimes alternatively referred to as the ground for restitution. See Goff and Jones, The Law of Unjust Enrichment (eds Mitchell, Mitchell and Watterson, 9th ed (2016), para 1-21). Examples of unjust factors are mistake, duress, undue influence, failure of consideration, necessity and legal compulsion. For judicial acceptance of the need for, and terminology of, an unjust factor, see, eg, Kleinwort Benson Ltd v Lincoln City Council[1999] 2 AC 349 , 408-409 per Lord Hope; Chief Constable of the Greater Manchester Police v Wigan Athletic AFC Ltd[2008] EWCA Civ 1449 ;[2009] 1 WLR 1580 , paras 50, 62 and 67; Test Claimants in the FII Group Litigation v Revenue and Customs Comrs[2012] UKSC 19 ;[2012] 2 AC 337 , para 81, per Lord Walker. In the Court of Appeal of Trinidad and Tobago in Jaipersad v Shiraze Ahamad, in a judgment delivered on24 February 2015 , Mendonca JA (with whom Bereaux JA and Narine JA agreed) said the following at para 23: "English law, which the parties agree is the law applicable in this context to this jurisdiction … identifies specific grounds for restitution sometimes referred to as unjust factors. These factors are the trigger for the restitutionary remedy on the ground that it is unjust to retain the benefit." 20. The need to identify an established unjust factor, or some incremental development from it, also lies behind the obiter dicta of Mann J discussing pleading in unjust enrichment cases in Uren v First National Home Finance Ltd[2005] EWHC 2529 (Ch) at para 16: "[I]t seems to me that it has not been established that the authorities have yet moved to a position in which it can be said that there is a freestanding claim of unjust enrichment in the sense that a claimant can get away with pleading facts which he says leads to an enrichment which he says is unjust … A claimant still has to establish that his facts bring him within one of the hitherto established categories of unjust enrichment, or some justifiable extension thereof."” "English law, which the parties agree is the law applicable in this context to this jurisdiction … identifies specific grounds for restitution sometimes referred to as unjust factors. These factors are the trigger for the restitutionary remedy on the ground that it is unjust to retain the benefit." "[I]t seems to me that it has not been established that the authorities have yet moved to a position in which it can be said that there is a freestanding claim of unjust enrichment in the sense that a claimant can get away with pleading facts which he says leads to an enrichment which he says is unjust … A claimant still has to establish that his facts bring him within one of the hitherto established categories of unjust enrichment, or some justifiable extension thereof."”
“I will pause here to consider what would have been the fate of this application if the Pirelli decision had not been published during the course of the hearing. I have never in my experience at the Bar or on the Bench heard of an application to amend to plead a limitation defence during the course of the final speeches. Such an application would, in my view, inevitably have been rejected as far too late. A defence of limitation permits a defendant to raise a procedural bar which prevents the plaintiff from pursuing the action against him. It has nothing to do with the merits of the claim which may all lie with the plaintiff; but as a matter of public policy Parliament has provided that a defendant should have the opportunity to avoid meeting a stale claim. The choice lies with the defendant and if he wishes to avail himself of the statutory defence it must be pleaded. A defendant does not invariably wish to rely on a defence of limitation and may prefer to contest the issue on the merits. If, therefore, no plea of limitation is raised in the defence the plaintiff is entitled to assume that the defendant does not wish to rely upon a time bar but prefers the court to adjudicate on the issues raised in the dispute between the parties. If both parties on this assumption prepare their cases to contest the factual and legal issues arising in the dispute and they are litigated to the point of judgment, the issues will by this time have been fully investigated and a plea of limitation no longer serves its purpose as a procedural bar. If a defendant decides not to plead a limitation defence and to fight the case on the merits he should not be permitted to fall back upon a plea of limitation as a second line of defence at the end of the trial when it is apparent that he is likely to lose on the merits. Equally, in my view, if a defence of limitation is not pleaded because the defendant's lawyers have overlooked the defence the defendant should ordinarily expect to bear the consequences of that carelessness and look to his lawyers for compensation if he is so minded.”
“246. The basic definition of failure of basis was set out by Professor Birks in An Introduction to the Law of Restitution (1989), p 223 and has since been cited with approval by Toulson LJ, with whom Black and Laws LJJ agreed, in Sharma v Simposh Ltd[2013] Ch 23 at para 24 and by Lord Burrows JSC in Barton v Morris at para 232. That definition is that: “failure of consideration or basis means that the state of affairs contemplated as the basis or reason for the payment has failed to materialise or, if it did exist, has failed to sustain itself.” 247. This is amplified in Virgo as follows, at p 340: “Failure of basis occurs where the counter-performance, event or state of affairs which constitutes the basis for which the transferor of the enrichment had bargained has failed to materialize or to sustain itself … The basis must be shared between the parties and cannot be established from the mere failure of the claimant's expectations, nor the imposition of secret conditions. The basis is to be determined objectively by reference to whether a reasonable person in the position of the defendant would have understood that receipt of the enrichment was conditional, rather than by reference to the subjective motives of the claimant. Any particular purpose or motive of the claimant in transferring the enrichment can, however, be taken into account in identifying the basis, but only if such a purpose or motive had been communicated to the defendant before the enrichment was transferred or any contract was made so that the defendant had an opportunity to object to it and so that the basis can be considered to be shared.” 248. Goff & Jones at para 16-03 put the point as follows: “In accordance with the general principles that govern failure of basis as a ground of recovery, the basis must be ascertained by an examination of the dealings between the parties. The objectively understood joint basis of the transfer must be identified. It is not necessary to show that the defendant either knew, or ought to have known, that the claimant expected to be paid for his services, nor that the defendant freely accepted those services. As with the position in failure of basis more generally, there may be several conditions to which the transfer is subject.” 249. The failed basis may be that the services will be paid for.” “253. Failure of basis is commonly relied upon in the context of failed or anticipated contracts, in respect of which there is no difference in principle—as Barry J said in William Lacey (Hounslow) Ltd v Davis[1957] 1 WLR 932 , 939: “I am unable to see any valid distinction between work done which was to be paid for under the terms of a contract erroneously believed to be in existence, and work done which was to be paid for out of the proceeds of a contract which both parties erroneously believed was about to be made.” 254. The question here is as to when—if at all—a joint understanding was reached between H&P and Randgold that they would be instructed as financial adviser and paid accordingly.”
“127. It is common for the most difficult question to concern when enrichment is “unjust”
“The core concept of "failure of basis" is that a benefit has been conferred on a joint understanding that the recipient's right to retain it is conditional. If the condition is not fulfilled, the recipient must return the benefit (see Goff & Jones at 12-01). Whilst failure of basis ranks alongside the unjust factors of mistake, duress and undue influence as a factor negativing consent, it differs in that it is concerned with qualification of consent, as opposed to impaired or vitiated consent (see Burrows, The Law of Restitution, 3rd ed, 2011).”
“829. Had the unjust enrichment claims succeeded in this case, it would have been on the basis that what was expected to happen (in terms of entering into subsequent binding agreements) did not happen. At the time that the payment was made, on30 December 2009 , there had yet to be the failure of consideration which gave rise to the entitlement to claim in restitution. It follows that the cause of action cannot by that stage have accrued. 830. Support for Mr Foxton QC's alternative position is also to be found in Nu Line, in which Young AJA observed at [193] that it "is very difficult to put a time on when something doesn't happen" , before going on to say this at [194]: "… one must be looking to the time when both parties would be reasonably considered to have taken the position that the arrangement between them was finally and definitely not going to proceed. Only at that time did it, to use the modern jargon, become unjust, or, to use the ancient jargon, become inequitable for the person who received the money to retain it." 831. Barrett JA in the same case stated as follows at [108]: "… a shared intention to enter into a contract should be taken to have ended if a contract has not been concluded by the time impliedly envisaged by the shared intention and there is, in an objective sense, no sufficient evidentiary basis for a finding that the mutual commitment continued beyond that time. Unless the parties' conduct shows some contrary consensus, the envisaged time for the making of the contract will be the time that is reasonable in the circumstances of the case." 832. These are observations which I find persuasive. They strengthen my view that, as a matter of principle, Mr Foxton QC's submissions must be right, and so that time for limitation purposes starts to run in a case such as the present not when the payment is received but when it became inequitable (or unjust) for the recipient to retain the money received. 833. In this case, it was Mr Foxton QC's submission that a period of between 18 months and 3 years was equally a reasonable time for the parties to conclude contracts for the transfer of the interests in NET and Agro Holding. I agree with Mr Foxton QC about this. It is a timescale within which the Gaiduk Parties, in fact, made transfers to the Mkrtchan Parties, which, as Mr Foxton QC submitted, no doubt reflected the complexity of the arrangements which had to be put in place for each of the relevant transfers.”