“What is the appropriate measure of restitution? In particular, are the Claimants entitled to restitution of: a. The difference between (i) the sums paid by the Claimants under the unlawful 2015 SI and (ii) the sums that were properly due under the lawful 2011 SI; or b. The difference (if any) between (i) the sums paid by the Claimants under the unlawful 2015 SI and (ii) the sums that would have been due had Ofcom acted lawfully in accordance with the judgment of the Court of Appeal; or c. Sums calculated by some other measure.”
“(1) A person to whom a wireless telegraphy licence is granted must pay to OFCOM- (a) On the grant of the licence, and (b) If regulations made by OFCOM so provide, subsequently at such times during its term and such times in respect of its variation or revocation as may be prescribed by the regulations, The sums described in subsection (2). (2) The sums are- (a) such sums as OFCOM may prescribe by regulations, or (b) if regulations made by OFCOM so provide, such sums (whether on the grant of the licence or subsequently) as OFCOM may determine in the particular case.”
“(4) Before making any regulations or order under such a power, OFCOM must- (a) Give notice of their proposal to do so to such persons representative of the persons appearing to OFCOM to be likely to be affected by the implementation of the proposal as OFCOM think fit. (b) Publish notice of their proposal in such manner as they consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it and are not given notice by virtue of paragraph (a); and (c) Consider any representations that are made to OFCOM, before the time specified in the notice. (5) A notice for the purposes of subsection (4) must- (a) state that OFCOM propose to make the regulations or order in question; (b) set out the general effect of the regulations or order; (c) specify an address from which a copy of the proposed regulations or order may be obtained; and (d) specify a time before which any representations with respect to the proposal must be made to OFCOM. (6) The time specified for the purposes of section (5)(d) must be no earlier than the end of the period of one month beginning with the day after the latest day on which the notice is given or published for the purposes of subsection (4).”
“(1) After completion of the Auction OFCOM must revise the sums prescribed by regulations under section 12 of [WTA 2006] for 900 MHz and 1800 MHz licences so that they reflect the full market value of the frequencies in those bands. (2) In revising the sums prescribed OFCOM must have particular regard to the sums bid for licences in the Auction.”
“The licence fees for your radio equipment are due on or before the above due date. If you wish to continue to use your radio equipment, payment must be received by Ofcom by the due date shown above. If you fail to do so, you will be in breach of your licence terms and conditions and will be operating illegally. This may result in revocation of your licence(s) and possible enforcement action.”
“Does one discount the sums unlawfully demanded, the 2015 charges, by reference to either the 2011 regulation levies or must you include additional sums that Ofcom would and could have charged if they had made lawful regulations? In other words, do the 2011 regulations exhaust the material obligations of the MNOs and the corresponding entitlements of Ofcom?”
“They are intended to ensure a structured approach to the analysis of unjust enrichment, by identifying the essential elements in broad terms. If they are not separately considered and answered, there is a risk that courts will resort to an unstructured approach driven by perceptions of fairness, with consequent uncertainty and unpredictability. At the same time, the questions are not themselves legal tests, but are signposts towards areas of inquiry involving a number of distinct legal requirements.”
“It is fundamental that a payment cannot amount to enrichment if it was made for full consideration; and that it cannot be unjust to receive or retain it if it was made in satisfaction of a legal right. As Professor Burrows has put it in his Restatement of the English Law of Unjust Enrichment (2012), para 3(6), “in general, an enrichment is not unjust if the benefit was owed to the defendant by the claimant under a valid contractual, statutory or other legal obligation”
“The general rule should be to uphold contractual arrangements by which parties have defined and allocated and, to that extent, restricted their mutual obligations, and, in so doing, have similarly allocated and circumscribed the consequences of non-performance. That general rule reflects a sound legal policy which acknowledges the parties' autonomy to configure the legal relations between them and provides certainty, and so limits disputes and litigation. The following cases support its application to the present case.”
“One policy justification for the Woolwich entitlement mentioned by Lord Goff is that a general right to recover payments of tax levied without the authority of Parliament is needed to give full effect to the constitutional principle enshrined in article 4 of the Bill of Rights 1689, that the Crown and its ministers may not impose direct or indirect taxes without Parliamentary sanction. Another, latent in their Lordships' speeches, is the related but wider public law principle of legality, that bodies invested with power by the state must respect the rule of law, and adhere to the limits of the jurisdictions conferred upon them.”
“If a person is authorised to receive money by virtue of an act of Parliament, it is like a contract between the parties that the sum allowed shall be all which he is to receive, and he is as much bound by the entirety of what he is authorised to take as he would be by the entirety of a sum in contract.. It is the duty of a person to whom an Act of Parliament gives fees, to receive what is allowed, and nothing more.”
“It makes no difference that the obligation to pay the money is expressed in the form of an agreement. It was illegal for the Food Controller to require such an agreement as a condition of any licence. It was illegal for him to enter into such an agreement. The agreement itself is not enforceable against the other contracting party; and if he had paid under it he could, having paid under protest, recover back the sums paid, as money had and received to his use.”
"It is reasonable that a man who denies the legality of a tax should have a clear and certain remedy. The rule being established that apart from special circumstances he cannot interfere by injunction with the state's collection of its revenues, an action at law to recover back what he has paid is the alternative left. Of course we are speaking of those cases where the state is not put to an action if the citizen refuses to pay. In these latter he can interpose his objections by way of defence, but when, as is common, the state has a more summary remedy, such as distress, and the party indicates by protest that he is yielding to what he cannot prevent, courts sometimes perhaps have been a little too slow to recognise the implied duress under which payment is made. But even if the state is driven to an action, if at the same time the citizen is put at a serious disadvantage in the assertion of his legal, in this case of his constitutional, rights, by defence in the suit, justice may require that he should be at liberty to avoid those disadvantages by paying promptly and bringing suit on his side. He is entitled to assert his supposed right on reasonably equal terms."
“The whole regulation would have to be rewritten and it is entirely a matter of speculation what form the rewriting would take if the draftsman had appreciated the error into which he was falling.”
“I would therefore hold that money paid by a citizen to a public authority in the form of taxes or other levies paid pursuant to an ultra vires demand by the authority is prima facie recoverable by the citizen as of right.”
“The justice underlying Woolwich's submission is, I consider, plain to see. Take the present case. The revenue has made an unlawful demand for tax. The taxpayer is convinced that the demand is unlawful, and has to decide what to do. It is faced with the revenue, armed with the coercive power of the state, including what is in practice a power to charge interest which is penal in its effect. In addition, being a reputable society which alone among building societies is challenging the lawfulness of the demand, it understandably fears damage to its reputation if it does not pay. So it decides to pay first, asserting that it will challenge the lawfulness of the demand in litigation. Now, Woolwich having won that litigation, the revenue asserts that it was never under any obligation to repay the money, and that it in fact repaid it only as a matter of grace. There being no applicable statute to regulate the position, the revenue has to maintain this position at common law. 59. “Stated in this stark form, the revenue's position appears to me, as a matter of common justice, to be unsustainable; and the injustice is rendered worse by the fact that it involves, as Nolan J. pointed out[1989] 1 WLR 137 , 140, the revenue having the benefit of a massive interest-free loan as the fruit of its unlawful action. I turn then from the particular to the general. Take any tax or duty paid by the citizen pursuant to an unlawful demand. Common justice seems to require that tax to be repaid, unless special circumstances or some principle of policy require otherwise; prima facie, the taxpayer should be entitled to repayment as of right. “To the simple call of justice, there are a number of possible objections. The first is to be found in the structure of our law of restitution, as it developed during the 19th and early 20th centuries. That law might have developed so as to recognise a condictio indebiti - an action for the recovery of money on the ground that it was not due. But it did not do so. Instead, as we have seen, there developed common law actions for the recovery of money paid under a mistake of fact, and under certain forms of compulsion. What is now being sought is, in a sense, a reversal of that development, in a particular type of case; and it is said that it is too late to take that step. To that objection, however, there are two answers. The first is that the retention by the state of taxes unlawfully exacted is particularly obnoxious, because it is one of the most fundamental principles of our law - enshrined in a famous constitutional document, the Bill of Rights 1688 - that taxes should not be levied without the authority of Parliament; and full effect can only be given to that principle if the return of taxes exacted under an unlawful demand can be enforced as a matter of right. The second is that, when the revenue makes a demand for tax, that demand is implicitly backed by the coercive powers of the state and may well entail (as in the present case) unpleasant economic and social consequences if the taxpayer does not pay. In any event, it seems strange to penalise the good citizen, whose natural instinct is to trust the revenue and pay taxes when they are demanded of him”
“It must be borne in mind that an order made under statutory authority is as much the law of the land as an Act of Parliament unless and until it has been found to be ultra vires.”
“The second point of the appellants is that, on the assumption that the first appellants have exercised undue discrimination against the respondents, the latter have no remedy by way of recovery of any sums paid under a tariff which has been brought into force. The appellants seek to draw a distinction between the effect of an equality section and an undue preference section. I do not think that they succeed. In my opinion, the first governing principle is that a tariff which imposes a charge upon the respondents involving their being unduly discriminated against is contrary to section 37 (8) of the Electricity Act, 1947. The respondents were charged more than is warranted by the statute. Then it is clear that, until a court so declares, the respondents have no alternative but to continue to pay the charges demanded of them. In principle the appellants should not be permitted to retain payments for which they have no warrant to charge. The respondents may therefore recover whatever sum they may be able to prove was in excess of such a charge as would have avoided undue discrimination against them. I did not understand it to be disputed that the charges to the low voltage consumers are correct. It is fully within the competence of a court on the evidence before it to estimate the amount by which the respondents have been overcharged, and the respondents have, in my view, averred with sufficient specification the standard by which that amount should be estimated.”
“It would be unjust not to allow MAF to retain a reasonable portion of WRAL’s payments to it (reasonable based on a proper s 135 assessment). Section 135 was enacted specifically to enable MAF to recover any shortfall in Crown funding appropriated for the enforcement of the Biosecurity Act. It follows that, on a “reverse-restitutionary” view, it would be unjust for WRAL to succeed on a claim for full repayment.”
“There is no injustice in their claims to partial recovery being allowed. But their Lordships can see no ground for departing from the Judge’s decision to allow partial recovery only (that is, of the excess over what would have been a fair and proportionate charge).”
“The claimants accept that they should not be able to recover the whole of the sums they paid for those years. They claim the difference between the sums they paid and whatever would have constituted reasonable fees for those years.”
“As far as the first period is concerned, the council failed to determine the fee it was entitled to determine. Although it will now have to determine a lawful fee retrospectively, it is entitled to do this on the basis that it would have been entitled to do at the time.”
“Even before any new and lawful decision, the payee will only be regarded as unjustly enriched to the extent of the excess of what might have been lawfully demanded.”
“It also has the practical attraction of entitling the person who overpaid in circumstances in which the public authority is able to levy the fee or part of it lawfully to recover only the excess. In this way it reflects the economic reality of what happened notwithstanding the public law flaw in the circumstances of the original payment.”
“I think it is likely that the court which grants relief in a Woolwich claim will need to quash the earlier charge or levy to enable the public body to impose a new charge or levy (if it would be lawful for it to do so); alternatively, it may be sufficient for the court to declare that the earlier charge or levy is void in public law and therefore has no legal effect; one or other of these steps was taken in both the Waikato Regional Airport Ltd case and Hemming's application. “Where it is held that the original charge or levy was not lawfully imposed but the public authority would be able lawfully to impose a lower charge or levy, the court takes the view, in favour of the public authority, that the public authority is not necessarily unjustly enriched to the full extent of the first charge or levy but only to the extent that the first charge or levy exceeds the second possible lawful charge or levy: see the Waikato Regional Airport Ltd case and Hemming's application.”
“Money has the peculiar character of a universal medium of exchange. By its receipt, the recipient is inevitably benefited; and (subject to problems arising from such matters as inflation, change of position and the time value of money) the loss suffered by the plaintiff is generally equal to the defendant's gain, so that no difficulty arises concerning the amount to be repaid.”
“It is barely necessary to say anything about money received. There is no room for argument as to the value of money… Money has value and is the measure of value.”
“Money is incontrovertibly enriching. It is the measure of enrichment.”
“In some situations, the courts are highly unlikely to hold that a defendant’s freedom to make his own spending choices would be compromised by ordering him to repay the objective value of a benefit. The most obvious example is where defendants receive money. Money is a universal means of exchange and defendants invariably desire things that money can buy. Hence the court is certain to find that he has been enriched by the receipt of money, and that its face value is a reliable measure of his enrichment at the time when he received it.”
“The benefit of the payment of that money may not be strictly incontrovertible, but the presumption that the Government was thereby enriched by the full amount of the receipts must be a very strong one.”
“… it is never possible for defendants to rely on the subjective devaluation principle and argue that they do not value the money which has been received.”
“Where payments both ways have been made the correct view is to treat the later payment as, pro tanto, a repayment of the earlier sum paid by the other party. The character of the remedy, both in law and equity, is restitution, that is to say putting the parties back into the position in which they were before. Accordingly, the remedy is only available to a party on the basis that he gives credit for any benefit which he has received. He must give credit for any payments which have been made by the opposite party to him and, where the court thinks appropriate, pay a quantum meruit or quantum valebat.”
“The nature of the various legal requirements indicated by the “at the expense of” question follows from that principle of corrective justice. They are designed to ensure that there has been a transfer of value, of a kind which may have been normatively defective: that is to say, defective in a way which is recognised by the law of unjust enrichment (for example, because of a failure of the basis on which the benefit was conferred). The expression “transfer of value” is, however, also too general to serve as a legal test. More precisely, it means in the first place that the defendant has received a benefit from the claimant. But that is not in itself enough. The reversal of unjust enrichment, usually by a restitutionary remedy, is premised on the claimant's also having suffered a loss through his provision of the benefit.”
“It should be emphasised that there need not be a loss in the same sense as in the law of damages: restitution is not a compensatory remedy. For that reason, some commentators have preferred to use different terms, referring for example to a subtraction from, or diminution in, the claimant's wealth, or simply to a transfer of value. But the word “loss” is used in the authorities, and it is perfectly apposite, provided it is understood that it does not bear the same meaning as in the law of damages. The loss to the claimant may, for example, be incurred through the gratuitous provision of services which could otherwise have been provided for reward, where there was no intention of donation. In such a situation, the claimant has given up something of economic value through the provision of the benefit, and has in that sense incurred a loss.”