David John Jones v Haulwen Griffiths & Anor [2025] EWHC 797 (KB)

[2025] EWHC 797 (KB)

Case No CF026/2024CA

IN THE HIGH COURT OF JUSTICE

KING'S BENCH DIVISION

Venue HIGH COURT APPEAL CENTRE, CARDIFF

ON APPEAL FROAM CAERNARFON COUNTY COURT

HHJ JARMAN KC

Venue Cardiff Civil Justice Centre

Date Date: 9 April 2025

Before

HON SIR PETER LANE

Between

DAVID JOHN JONESAppellant

(1) HAULWEN GRIFFITHSRespondents

(2) NEIL STANLEY JAMESONRespondent

Mr Wilson Horne (instructed on direct access) for appellant

Mr Emyr Jones (instructed by Gamlin Law Ltd)) for second respondent

for The first respondent did not appear and was not represented

Hearing Hearing date: 4 March 2025

HMTL VERSION OF APPROVED JUDGMENT

Crown copyright

The judgment was handed down remotely at 10.30am on 9 April 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

[1]The appellant, David Jones, appeals against the order of HHJ Jarman KC, by which he dismissed the appellant’s claims against the respondents, who are respectively the appellant’s mother and half-brother. Permission to appeal was granted on a single ground, concerning the judge’s dismissal of the appellant’s claim against the second respondent, Neil Jameson, of the claim based on unjust enrichment, asserted to have resulted from works carried out by the appellant on a residential property on Anglesey called Trigfan, 6 Station Road, Rhosneigr. The respondents are the registered owners of Trigfan.

[2]At the appeal hearing on 4 March 2025, Mr Horne appeared for the appellant and Mr Jones for the second respondent, as they had before HHJ Jarman KC. I am grateful to them for the quality of their oral and written submissions, which have greatly assisted the court.

THE JUDGMENT

[3]The appellant’s primary case before the judge was that he was entitled to the entire beneficial interest in Trigfan. The property was purchased for £160,000, with the first respondent paying a deposit of £51,000, part of which also covered the cost of renovation works. The balance of the purchase price was secured by way of an interest only mortgage. Over the next two years, the second respondent worked on the property in his spare time, renovating it with a view to its being sold at a profit. The works were described by the judge as quite extensive in nature. In 2008, with the renovation works completed, Trigfan was put on the market with an asking price of £310,000. Owing to the financial crisis of that year, the only offers received were regarded as far too low. The second respondent lost his employment and the first respondent had difficulty making the mortgage payments. She moved into Trigfan in order to reduce her outgoings. There were family discussions about the future of Trigfan, which included the appellant and a sister, Ms Owens. At that time, the judge said it was common ground that the appellant was not in a position to buy Trigfan. The property was let out for holiday purposes, and, later, on a shorthold tenancy.

[4]In 2010, the appellant repaid a loan that Ms Owens had made to the first respondent. In 2011, the appellant and his family moved into Trigfan. The judge accepted the evidence of the second respondent that the landlord of the property in which the appellant was then living wished to re-take possession of it. After moving to Trigfan, the appellant made monthly payments to the first respondent. Over the next few years, the appellant carried out further work on Trigfan. Materials for the works were purchased by the appellant’s construction company. At paragraph 8 of his judgment, the judge recorded that the appellant had obtained expert evidence to show the value of these works was in the region of £120,000. Most but not all of the works had been carried out before the dispute as to the ownership of Trigfan arose in 2019. The appellant makes the point that this evidence, which is in the form of a report by a quantity surveyor, was commissioned jointly. The judge found that “No evidence was obtained as to the extent, if any, to which these works would have added to the value of the property.”

[5]In 2017, the first respondent wished to retire. From then on, the monthly sum paid by the appellant to the first respondent was in the monthly sum that she would otherwise have received by way of a state pension. By this time, the appellant was in a position to apply for a mortgage to redeem the existing mortgage on Trigfan but he needed a further two years of accounts to obtain the mortgage. He received a mortgage offer in 2019, whereupon he asked the respondents to sign a document transferring title in Trigfan to the appellant. They refused.

[6]At paragraphs 12 to 16, the judge addressed the issue of documentation. In conclusion, he found that the documentation “gives indications one way and then another as to whether that agreement [that the appellant was to acquire the respondents’ interests in Trigfan] was made as alleged by Mr Jones. Accordingly, inherent likelihoods are important in this case, and I shall bear that in mind when dealing with issues of fact ...” (paragraph 16).

[7]At paragraph 17, the judge found as a fact that the appellant did not agree with the second respondent to pay him a sum by way of compensation for the renovation works that the second respondent had carried on Trigfan. At paragraphs 18 to 20, the judge found as a fact that the appellant had not paid the first respondent £1,000 a month from 2009 to 2017. Rather, he had paid her £700. She had not told him in 2017 that he had repaid all that was needed on the mortgage. The judge found that the monthly sum paid by the appellant was “less than the market rental value of the property” (paragraph 20).

[8]At paragraph 23, the judge addressed what he categorised as the subsidiary issue of the extent to which the respondents had knowledge of the works carried out by the appellant on Trigfan:

“23. ... Ms Griffiths accepted that she picked up her grandson from the property occasionally and spent four days recouping there after surgery during this time. However, she also spent time away, visiting her son in Australia two or three times and on cruises and she says she didn’t see the works being carried out. Mr Jameson accepted that he saw re-rendering taking place and heard building noise, but says that [he] was working away during much of this period and was not able to see everything that was going on there from his property. In 2016 Mr Jones obtained planning permission for alterations at the property, including building an extension on top of the kitchen extension built by his brother, but not all of these permitted works have been carried out. I accept the evidence of Ms Griffiths and Mr Jameson as to the extent of the knowledge of these works.”

[9]At paragraphs 24 to 32, the judge addressed what he categorised as the main issue of fact; namely, whether the agreement relied upon by the appellant was made. At the time, the appellant said that the outstanding mortgage was £138,000. His asserted agreement to purchase Trigfan was for £247,000, thereby giving an equity of £109,500. At paragraph 25, the judge found that “the agreement alleged by Mr Jones is inherently unlikely”. Although the respondents were struggling, the repayments were on the whole being maintained. There were also other options, such as the second respondent letting the property. The respondents could have accepted other offers for Trigfan in the region of £240,000 which would have given them an immediate profit rather than waiting for an uncertain time for the appellant to reach a financial position where he was able to apply for a mortgage and without meanwhile having the legal liability of the existing mortgage (paragraph 26). These other options meant that the question arose why the respondents should agree to sell to the appellant at a fixed price lower than the market price, when the housing market had slumped and it was unknown when the appellant would be in a position to complete the agreement. In the event, this took 10 years. All this meant that the existence of the alleged agreement was unlikely (paragraph 27).

[10]The following paragraph of the judgment is important for the present appeal: “28. The question arises as to why Mr Jones should carry out work on the property, albeit mostly through his company, unless he had been given an assurance that he could buy the property. In my judgment the answer to this is that the situation evolved so that such works were carried out over a number of years after he and his family moved in, much of which was to accommodate their particular tastes. One small but telling example is that the works relied upon include the installation of a copper bath. It is also telling in my judgment that expert evidence adduced by him as to these works details the value of these works, but not the extent to which, if any, they have improved the value of the property”.

[11]At paragraph 30, the judge held that the payments made by the appellant to the first respondent were to cover the mortgage repayments and/or by way of an allowance to reflect the appellant’s occupation of the property. The judge accepted as genuine the second respondent’s evidence that he was unsure about the payments to the first respondent. The judge continued as follows:

“32. In my judgment, it is likely that the lets in 2009 were then seen by all concerned as a short term solution at a time when the market had slumped and Ms Griffiths and Mr Jameson were struggling to keep up the mortgage repayments and bills. Once Ms Owens was repaid £20,000 I accept that she no longer had a great deal of interest in the property. It is also likely that Mr Jones saw an opportunity to move into the property when his then landlord wanted to take possession of the dwelling where he was then living. The events after 2009 are more likely to be part of an evolutionary process which he took upon himself than consequent to an agreement to sell as relied upon by Mr Jones.”

[12]At paragraph 36, the judge found, on the balance of probabilities, that there was no promise or assurance on the part of either or both respondents that Trigfan would be sold to the appellant.

[13]At paragraphs 38 and 39, the judge turned to the appellant’s claim for equitable compensation: “38. It is submitted on behalf of Mr Jones that had he known the assurances were false, he would not have made payments in respect of the equity in the property, nor paid the monthly mortgage sums nor carried out works to the property. Instead, he would have bought another home for his family subject to a fixed rate mortgage. He claims equitable damages as against his brother and mother on a joint and severable basis in respect of the repayment of his mother’s contribution to the purchase of the property, the value of the works, and a sum for his time managing the works and the mortgage interest payments in the region of £58,000. He also claims against his mother 28 monthly payments of £470. As to the latter, his claim was that he made those on the basis that his mother told him she was going to retire, which she did not do for this period. To his credit, he accepted in cross-examination that he probably would have made these payments even if his mother had not told him this.

[39]Given that concession, and in light of the findings made above, it follows that no part of this alternative claim is made out.”

THE APPEAL

[14]The appellant’s application for permission to appeal can be summarised as follows. First, the appellant submitted that the judge’s findings of fact in relation to the claim for proprietary estoppel (based on the alleged agreement) were wrong. So too were the findings of “subsidiary issues of fact that may have an impact on the unjust enrichment claim...”. Secondly, the judge was said to have made errors of law in dismissing the unjust enrichment claim, in that he did not answer the four questions posed in Benedetti v Sawris

[2014] AC 938

. These were described by HHJ Jarman KC at paragraph 35 of the judgment as(1) has the defendant been enriched?

(2) Was the enrichment at the claimant’s expense?

(3) Was the enrichment unjust?

(4) Are there any defences available to the defendant? Thirdly, it is said the judge failed to apply what the appellant submits is the correct legal test in valuing the appellant’s services by way of the works he carried out at Trigfan; namely, their open market value.

[15]Permission to appeal was refused on the papers by Nicklin J. He observed that the challenge to the factual findings of the judge faced a high hurdle, which was not surmounted in this case. The challenge fell “comfortably within the area of disagreement with a judge’s factual findings”. As for the challenge to the judge’s findings on the issue of unjust enrichment, Nicklin J observed that the challenge rested on a finding of fact; namely, the finding at paragraph 38 that the appellant would probably have made the payments to the first respondent in any event. In the light of that finding, the claim for unjust enrichment failed.

[16]The appellant orally renewed his application for permission before Pepperall J, who granted permission to appeal on grounds limited to the finding on unjust enrichment in respect of the second respondent. Pepperall J referred to a passage from Chitty onContracts, 34th edition (2022) cited by the deputy judge in Mate v Mate

[2023] EWHC 238 (Ch)

as making it arguable that HHJ Jarman KC had been wrong to require the services provided by the appellant to add to the wealth of the second respondent, where the alleged unjust enrichment concerns free acceptance or acquiescence. Accordingly, the judge should arguably have engaged with the detail of the schedule of works compiled by the quantity surveyor. Whilst Pepperall J was not persuaded that the judge’s factual findings meant the first respondent could be said to have had knowledge of the works undertaken by the appellant at Trigfan, the position was “more nuanced in respect of Mr Jameson given the judge’s findings at paragraph 23 that Mr Jameson had been aware of some of the works being undertaken.” Bearing in mind the low threshold at the permission stage, Pepperall J considered “there is an arguable appeal in respect of the judge’s dismissal of the unjust enrichment claim arising out of the works done as against Mr Jameson but not as against Ms Griffiths.”

FAILURE OF BASIS

[17]In deciding whether there has been unjust enrichment, the case law makes plain that a relevant factor will be whether there has been a failure of basis. Failure of basis (previously called failure of consideration) is one of the ways in which what may appear to be the voluntary action of a party is regarded in law as negated or qualified. What is meant by failure of basis is explained by Professor Birks in An Introduction to the Law of Restitution (revised ed, 1989), cited with approval by the Court of Appeal in Sharma v Simposh Ltd

[2011] EWCA Civ 1383

. A failure of basis means “that the state of affairs contemplated as the reason for the payment has failed to materialise or, if it did exist, has failed to sustain itself”. As Lord Burrows observed at paragraph 232 of his dissenting judgment in Barton v Morris

[2023] UKSC 3

, Professor Birks’s definition applies equally to the restitution of the value of other benefits, including services. Identifying the basis is a matter for objective interpretation.

[18]In Barton v Morris, the majority of the Supreme Court held that the terms of an oral agreement between the parties were that Mr Barton would be paid £1.2 million for making an introduction of a prospective purchaser, if the result were that the prospective purchaser proceeded to purchase a particular property for £6.5 million; but that Mr Barton would get nothing if the property was sold to the purchaser for anything less than £6.5 million. There was no implied term that Mr Barton would be recompensed for his efforts in that eventuality. Given the existence of the contract, which placed the risk squarely on Mr Barton, there was, in the judgment of Lady Rose, no scope for the restitutionary remedy based on unjust enrichment. Contrary to what Mr Barton contended, on the facts there had been no failure of basis. (Although he considered there was an implied term that entitled Mr Barton to compensation in the events that occurred, Lord Leggatt agreed with the majority that there was no scope for the principle of unjust enrichment.)

[19]At paragraph 78, Lady Rose cited Carr LJ in Dargamo Holdings Ltdv Avonwick Holdings Ltd

[2021] EWCA Civ 1149

, where she described a failure of basis as being “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 ... 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.” In so finding, Carr LJ referenced the third edition of Burrows: The Law of Restitution.

[20]At paragraph 87, Lady Rose held that the fact neither party raised with the other what would happen if the property were not sold for £6.5 million did not suggest they were assuming the sale would be for at least £6.5 million. One could not draw from the failure of the parties to deal with a potential eventuality in their contract an inference that such an eventuality was not contemplated by them.

[21]Earlier, at paragraph 81, Lady Rose had noted the judgment of Lord Toulson in Barnes v Eastenders Cash & Carry plc

[2014] UKSC 26

, where he approved the statement in Goff & Jones, The Law of Unjust Enrichment (8th ed (2011), now in 10th ed (2022) that “unjust enrichment is not an abstract moral principle to which courts must refer in deciding cases, but an organising concept that groups decided authorities that share a set of common features.”

[22]At paragraph 233 of Barton v Morris, Lord Burrows considered that, on the facts, there had been a relevant failure of basis. The basis which failed was the sale of the property for £6.5 million. It was that failure of basis that supplied the unjust factor. Lord Burrows referred to counsel for Mr Barton as saying that, when the sale for that price failed to materialise, the parties’ “shared assumption ... failed”.

FREE ACCEPTANCE

[23]Where there has been no failure of basis, mistake, duress, or undue influence that qualifies or negatives consent to the conferring of the benefit, so making restitution necessary, a claimant may invoke the principle of free acceptance as an unjust factor within the third limb of Benedetti v Sawiris. According to Goff & Jones 10th ed (2023), “The principle of free acceptance has a (unique) dual role in the law of unjust enrichment, since it provides both a test for assessing enrichment, and articulates an independent unjust factor ... The principles of free acceptance applicable to unjust enrichment and to free acceptance as an unjust factor are not necessarily interchangeable” (1-02). At 2-03, the principle of free acceptance is articulated as being that a defendant will be held to have benefited from the services rendered if he, as a reasonable man, should have known that the claimant expected to be paid for them, and yet did not take a reasonable opportunity open to him to reject the proffered services. The authors state that this means free acceptance is not like other unjust factors, such as mistake and undue influence, where the claimant’s intention to benefit the defendant is defective. Nor is it like failure of basis, which is concerned with conditions placed on a claimant’s intention to benefit the defendant. Instead, free acceptance focuses on the defendant’s intention. The authors observe that, since in free acceptance, the claimant’s intention to benefit the defendant has been freely formed and fully carried out, it has not been a straightforward matter to identify why, exactly, it is unjust to allow the defendant to receive the benefit. The authors consider that recent authorities, including Benedetti v Sawiris, have not explained the point, instead merely assuming that because a benefit has been freely accepted, it must, therefore, be unjust for the defendant to retain it.

[24]In Barton v Morris, Lord Burrows expressed the view that “free acceptance is not an unjust factor in English law” (paragraph 230). The cases supposedly decided by reference to free acceptance were better explained as examples of other unjust factors, in particular failure of consideration or failure of basis. Approving the views of Day and Virgo in (2020) 136 LQR 349 at 354, Lord Burrows considered that, by holding that the defendant needs merely to be aware that the claimant expects to be compensated for the benefit, the cases supposedly decided on the principle of free acceptance reward risk-taking and cut across the parties’ autonomy.

[25]Although Mr Jones sought at the hearing before me to emphasise the judgment of Lord Burrows, it is manifest that free acceptance remains a discrete way in which the principle of unjust enrichment can operate.

ASCERTAINING THE BENEFIT

[26]In Benedetti v Sawris, the judgment of Lord Clarke was expressly agreed by Lords Kerr and Wilson. The case concerned the ascertainment of the benefit (or enrichment), where there was no issue that the principle of unjust enrichment applied. At paragraphs 15 to 26, Lord Clarke said this: “15. In my view, the starting point in valuing the enrichment is the objective market value, or market price, of the services performed by Mr Benedetti. That is consistent with the view taken by Professor Graham Virgo in ThePrinciples of the Law of Restitution, 2nd ed (2006) (“Virgo”): “Much of the uncertainty concerning the definition of enrichment stems from the lack of consensus about where the analysis should start. Essentially there are two options available. Either we start with an objective test, ascertained by asking whether reasonable people would consider the defendant to have received something of value, or we start with a subjective test, by considering whether the defendant considers that he or she has received something of value. Whilst both the objective and subjective tests are relevant to the identification of an enrichment, the better view is that the objective test should always be considered first . . . : p 64.

[16]I agree. Although Professor Virgo is there considering the approach to the question whether a benefit has been conferred on the defendant at all, as opposed to the question how such a benefit should be valued, it is clear that he takes the same view in relation to valuation: see Virgo, at p98, where he says that the general test of valuation which should be adopted is an objective test. Both the editors of Goff & Jones (eg at para 4-08) and Professor Andrew Burrows in The Law of Restitution, 3rd ed (2011) (“Burrows”), (at p 61) also take this view. The approach is supported by, eg: BP Exploration v Hunt

[1979] 1 WLR 783

, 840, per Robert Goff J; Cressman v Coys of Kensington(Sales) Ltd

[2004] 1 WLR 2775

, para40, per Mance LJ; Cobbe v Yeoman’sRow, para 42, per Lord Scott; and Sempra Metals Ltd (formerly Metallgesellschaft Ltd) v Inland Revenue Comrs

[2008] AC 561

, paras 116—119, per Lord Nicholls of Birkenhead. It is to be noted that Professor Virgo, in the passage quoted above, does not list as an available option the value which the claimant considers that he conferred on the defendant. That is because, as he puts it at p 69, it is not the function of the law of restitution to assess relief by reference to the claimant’s loss . . . compensation is not a function of the law of restitution. It is to my mind for this reason that Mr Benedetti's request for E200—300m in June 2005 has little or no relevance. For these reasons I agree with Lord Neuberger of Abbotsbury PSC and Lord Reed JSC (whose judgments I have read in draft) that the general test, or prima facie position, is that the court should apply an objective test to the issue of market value.

[17]There is a question as to exactly what the objective approach entails. Professor Virgo states the test (at p 98) as the identification of the market value, namely the sum a willing supplier and buyer would have agreed upon. However I agree with Etherton LJ

[2010] EWCA Civ 1427

at [140], that the test is the price which a reasonable person in the defendant’s position would have had to pay for the services. On that approach, although a court must ignore a defendant’s generous or parsimonious personality, it can take into account conditions increasing or decreasing the objective value of the benefit to any reasonable person in the same (unusual) position as the defendant: para 145. The editors of Goff & Jones note that such conditions would seem to include the defendant’s buying power in a market “so that a defendant who can invariably negotiate a better price for a product than any other buyer will be allowed to say that this price reflects the objective value of the product to him, or, in effect, that there is one market for him and another for everyone else”: para 4-10. Thus far, I detect no difference between my approach and that of Lord Neuberger PSC or Lord Reed JSC.

[18]The question then arises whether it is permissible to reduce the objective market value in order to reflect the subjective value of the services to the defendant. In my opinion, it is. The present case does not, of course, concern subjective devaluation, but that is the hook on which Mr Howard seeks to hang the principle of subjective revaluation. It is on the possibility of subjective devaluation that my approach and that of Lord Reed JSC is I think somewhat different. A defendant, in my view, is entitled to prove that he valued the relevant services (or goods) provided by the claimant at less than the market value. That principle is widely accepted by academic commentators and is based on the fundamental need to protect a defendant’s autonomy. It is important to note that subjective devaluation is not about the defendant’s intentions or expectations but is an ex post facto analysis of the subjective value of the services to the defendant at the relevant time. The editors of Goff &Jones put it thus at para 4-06:

“People have different means and spending priorities, and they value benefits differently according to their personal tastes. Consequently, as Lord Nicholls said in Sempra, a benefit is not always worth its market value to a particular defendant, and when it is not it may be unjust to treat the defendant as having received a benefit possessing the value it has to others . The common law ‘places a premium on the right to choose how to spend ones money’ [see Peel v Ontario [1992] 3 SCR 762, para 25, per McLachlin J], and this right might be unfairly compromised if a defendant were forced to make restitution of the market value of a benefit which he would only have bought for himself at a lower price, or which he would not have bought at all. To avoid this, the court may therefore assess the value of the benefit by reference to the defendant’s personal value system rather than the market.”

Professor Andrew Burrows makes the same point at Burrows, p44: “The question of whether the defendant has been benefited/has received value is not straightforward because of the need to respect freedom of choice and individuality of value. Even if the defendant has been objectively benefited (ie a reasonable man could regard himself as benefited by what has occurred or, put another way, the claimant’s performance has a market value) he or she may validly argue that benefit has been of no value to him or her."

[19]It is clear (from p 61) that Professor Burrows takes the view that subjective devaluation applies to both the identification and the value of a benefit. See also, to the same effect, Virgo, at pp 67 and 68, where he noted that, even if the defendant used what had been received it does not necessarily follow that he or she valued it because, as Pollock CB said in his well-known dictum in Taylor v Laird (1856) 25 LJ Ex 329, 332, [if the claimant] cleans another’s shoes; what can the other do but put them on? As Mance LJ said in Cressmanv Coys, at para 28, “The law’s general concern is with benefit to the particular defendant, or so-called ‘subjective devaluation’”.

[20]I would not accept Mr Rabinowitz’s submission that a distinction is to be drawn between the identification of a benefit and the value of the benefit to a defendant and that, while the former can be subjective, the latter is to be objective. He relied upon the approach adopted by Justice James Edelman as to “The Meaning of Loss and Enrichment” in Philosophical Foundations of the Law of Unjust Enrichment (eds Chambers, Mitchell and Penner) (2008), pp 211—241. In my opinion Professor Burrows is correct to conclude (Burrows, at p 61) that “a sharp distinction between choice and valuation may. . .be artificial because a person may choose something but only at a particular price or even on the basis that it is gratuitously rendered.”

[21]After the claimant has adduced evidence of the objective value of the benefit which the defendant received, the burden of proof falls upon the defendant to prove that he did not subjectively value the benefit at all, or that he valued it at less than the market price: Goff & Jones, para 4-08; Virgo, pp 64, 66—67. That principle was established by the majority of the House of Lords in Sempra Metals

[2008] AC 561

: see para 48, per Lord Hope of Craighead, para 116, per Lord Nicholls of Birkenhead and para 180, per Lord Walker of Gestingthorpe. The minority took a different view, namely that it was for the claimant to establish the actual benefit obtained by the defendant: see especially per Lord Mance, at paras 231—232, and Lord Scott of Foscote, at para 147. As I see it, the difference between them is really no more than a different approach to the burden of proof. In each case the question is what was the value to the defendant.

[22]When I first drafted this judgment I thought that Sempra was an example of subjective devaluation in practice. It was held that the claimant could not recover the market interest rate on the sums it had paid to the Revenue by way of unlawfully levied advance corporation tax because the Government was able to borrow money at lower rates than the market rate. The amount saved by the Government was thus less than that which would have been saved by a commercial entity borrowing the same sums of money: see Goff & Jones at para 4-07. However, having read Lord Reed JSC’s judgment I can now see that it may be an example of the objective value of the money to a person in the position of the defendant, namely the Government. This perhaps shows the narrowness of the difference between our two approaches. This can I think be seen from an important passage in the speech of Lord Nicholls at para119:

“What is ultimately important in the law of restitution is whether, and to what extent, the particular defendant has been benefited: see Burrows, The Law ofRestitution, 2nd ed (2002), p 18. A benefit is not always worth its market value to a particular defendant. When it is not it may be unjust to treat the defendant as having received a benefit possessing the value it has to others. In Professor Birks’s language, a benefit received by a defendant may sometimes be subject to subjective devaluation: An Introduction to the Lawof Restitution (1985), p 413.”

[23]Recognising the principle of subjective devaluation raises the question of what a defendant relying on that principle must prove. A defendant can always simply assert that he valued a benefit at less than the market value. However, a court will be very unlikely to accept such an assertion unless there has been some objective manifestation of the defendant’s subjective views. In principle, this can occur before or after a transaction, although conduct after the transaction is likely to carry little weight. Goff & Jones put it thus at para 4-09:

“A defendant is unlikely to persuade a court that he attached a low value to a benefit simply by relying on self-serving testimony that he has a (previously unexpressed) personal value system that attributes a low value to such benefits, particularly if this testimony is not borne out by his previous conduct. If a defendant can produce stronger evidence of his personal spending preferences, however, then we believe that he should be able to rely on this evidence, consistently with the view expressed in the foregoing authorities that the law is concerned to protect his freedom to make his own spending choices.”

[24]An example of subjective devaluation in practice is perhaps Ministry ofDefence v Ashman

(1993) 25 HLR 513

, although caution is needed because that was a case about restitution for a wrong (trespass). The Ministry of Defence in that case were awarded, not the market rent for the property, but a rent equivalent to what would have been charged for suitable local authority accommodation because “Mr and Mrs Ashman would probably never have occupied the premises in the first place if they had to pay £472 a month [ie the market rate] instead of the concessionary licence fee of £95”: see p 520, per Hoffmann LJ. See also Ministry of Defence v Thompson

(1993) 25 HLR 552

, 554, where, in a differently constituted Court of Appeal, Hoffmann LJ, with whom Glidewell LJ and Sir John Megaw agreed, said:

“The principles in Ashman may, in my judgment, be summarised as follows: first, an owner of land which is occupied without his consent may elect whether to claim damages for the loss which he has been caused or restitution of the value of the benefit which the defendant has received. Secondly, the fact that the owner if he had obtained possession would have let the premises at a concessionary rent, or even would not have let them at all, is irrelevant to the calculation of the benefit for the purposes of a restitutionary claim. What matters is the benefit the defendant has received. Thirdly, a benefit may be worth less to an involuntary recipient than to one who has a free choice as to whether to remain in occupation or move elsewhere. Fourthly, the value of the right of occupation to a former licensee who has occupied at a concessionary rent and who has remained in possession only because she could not be rehoused by the local authority until a possession order has been made, would ordinarily be whichever is the higher of the former concessionary rent and what she would have paid for local authority housing suitable for her needs if she had been rehoused at the time when the notice expired.”

[25]If the principle of subjective devaluation is accepted, it can be defeated by a claimant proving that:(i) the defendant received an incontrovertible benefit (eg if the services saved the defendant necessary expense), or

(ii) the defendant requested or freely accepted the benefit: see Goff & Jones, paras 4-12—4-33 and (as to free acceptance) ch 17; Virgo, pp 72—88; Burrows, pp 47—60). These sources show that many different problems may arise, but it is fortunately not necessary in this case to define the circumstances in which the principle of subjective devaluation can be defeated. I agree with Lord Neuberger PSC that the difference between my approach and that of Lord Reed JSC is not likely to lead to a different result in more than very few cases.

[26]The only real difference may be this. We agree that in the case where services have been rendered which, viewed objectively, confer a benefit on the defendant, but a benefit which the defendant did not and does not want and would not have paid for, as in the examples of Pollock CB’s cleaned shoes or Professor Virgo’s cleaned windows (Virgo, p67), the claimant is not entitled to payment for the services because failure to pay would not unjustly enrich the defendant. The question is whether, in such circumstances, where there was no free acceptance of the services before or at the time they are rendered, but the defendant has accepted that he has received some benefit but not that the value of the benefit is as much as its market value, the defendant’s figure should be accepted. In my opinion it should be open to the court so to conclude on the basis, on the one hand there would be unjust enrichment if the defendant paid nothing but, on the other hand, that it would not be just to award more than the benefit conferred on the defendant so calculated. Such an approach seems to me to respect the principle of freedom of choice or autonomy and to meet the case where the defendant sees the value of the benefit but would not have ordered the services save perhaps at a substantial discount to the market rate. I see no reason why a court should not take into account a defendant’s subjective opinion of the value of the claimant’s services in order to reduce the value of them to him, provided of course that the court is satisfied that it is his genuine opinion. If Lord Reed JSC’s approach would produce a choice between a nil award and an award of the market value of the services, I would respectfully disagree. I prefer a nuanced approach, which seems to me to be more consistent with principle. However, given Lord Reed JSC’s conclusions in para 138 of his judgment, there may be little, if anything, between us, especially since we both recognise the importance of respect for the defendant’s autonomy or freedom of choice. It is not necessary to reach a final conclusion on these questions on the facts of this case. I certainly agree with Lord Reed JSC that the expression “subjective devaluation” is somewhat misleading.”

MATE V MATE

[27]In the present case, Mr Horne placed heavy emphasis on Mate v Mate. The claimant, Julie Mate, worked to secure the removal of a Green Belt restriction on land belonging to members of her family, thereby facilitating the sale of the land to residential developers, at a greatly enhanced price compared with what the land would have been worth for agriculture. Her primary case was that promises were made to her that, if the land were sold, the proceeds of sale would be shared equally between her mother and the latter’s five children. The claimant relied on those promises in acting as she did and her two brothers knew of the promises and of what the claimant was doing. Alternatively, the claimant argued that her mother and the two brothers knew the claimant would not have acted as she did unless she was to be rewarded for her work. The defendants would, therefore, be unjustly enriched if the claimant were not given restitution by way of a share of the proceeds of sale or such other compensation as the court saw fit (paragraphs 10 and 11).

[28]The deputy judge found that there was no promise to the claimant of sufficient clarity to establish a claim for proprietary estoppel. Accordingly, she could not have relied on any such promise or assurance (paragraph 237). That did not, however, dispose of the claim in respect of unjust enrichment. At paragraph 242, the deputy judge found that there could be no doubt that the claimant did not do the work gratuitously. The defendants’ pleaded case was that she did so without any anticipation of reward. That was roundly rejected by the deputy judge, who accepted the claimant’s evidence that she never told her brothers or mother that she would work for nothing. At paragraph 243, the deputy judge found as a fact that discussions in 2008 left no doubt the claimant expected to benefit from the sale proceeds if the land were sold for development. This was clear from her letter sent to the claimant’s sisters in 2008. The deputy judge said that “The fact that I have found Shirley [the mother] did not make a sufficiently clear promise or assurance to Julie [the claimant] as to what share of the windfall she could expect to receive in return for her services is irrelevant to this question”.

[29]Dealing with the question whether the enrichment was unjust, the deputy judge found at paragraph 249 that the mother and two brothers had notice of the services; they knew the claimant expected a reward for her services and they could have rejected the services but did not. They were unjustly enriched because they knew the claimant was not providing the services gratuitously.

[30]At paragraph 258, the deputy judge found that the mother and brothers expressly asked the claimant to help them extract the land from the Green Belt and that they knew she expected a reward for her services. Indeed, one of the brothers conceded as much in cross examination.

[31]Beginning at paragraph 259, the deputy judge addressed the question as to the value of the claimant’s services. Having considered the expert evidence and bearing in mind that the claimant was not acting in a professional capacity, the deputy judge concluded at paragraph 294 that the objective market value of the benefit of her services was fairly represented by a fee of 7.5% of the uplift in value of the land which was achieved on the grant of planning permission.

GRAY V SMITH

[32]For the second respondent, Mr Jones drew attention to Gray v Smith

[2022] EWHC 1153 (Ch)

. The court was there concerned with an oral agreement allegedly entered into by the claimant and the defendant to try and build and then jointly manage on a fifty-fifty basis, an open-ended committed investment fund. The claimant contended that the defendant breached the agreement by establishing a rival investment team, taking their joint work as his own and bringing the fund opportunity to a new partner. The claimant’s primary claim was damages for breach of contract. One of the alternative heads of claim was unjust enrichment for a sum said to represent the value of the claimant’s services in building and developing the investment management business.

[33]The judge held that the contractual claim failed, as did an alternative claim based on alleged breach of fiduciary duty. Beginning at paragraph 422, the judge addressed the unjust enrichment claim. The claim was brought on the unjust factor comprising failure of basis. The claimant contended that he worked in anticipation of a 50% share in the fund’s profits. At paragraph 428, the judge noted that “the basis on which services are provided is to be determined objectively: the parties’ uncommunicated thoughts are irrelevant (see Goff & Jones: The Law of Unjust Enrichment (9th Ed.) at [13-02]); Guardian Ocean Cargoes Ltd v Banco do Brasil [1994] CLC 243 (at [251]).”

[34]The judge observed that the claimant’s unjust enrichment case largely mirrored the case based on the alleged oral agreement. But even if that case failed, the claimant submitted that “the parties were working together thereafter on a clear understanding that Mr Gray was providing his services in return for a future 50% economic interest in Blackmoor. In light of my findings concerning the Alleged Oral Agreement ... I have no hesitation in concluding that Mr Gray did not provide his services in anticipation of half of Blackmoor’s profits. To the contrary, Mr Gray provided his services on the clear understanding ... that Mr Gray’s future participation in Blackmoor ... depended on them succeeding in raising capital together and going on to launch the Fund, with Mr Gray (and Mr Gray alone) being at risk that he would be paid nothing if he did not succeed in raising capital in his own right” (paragraph 429, original emphasis). The judge’s findings meant that there was no failure of basis (paragraph 436).

[35]That finding disposed of the unjust enrichment claim, since there was no unjust factor. Had that not been so, however,

the judge considered, obiter, whether the second defendant was enriched:

“440. According to Benedetti (at [15]-[16]), whether the defendant has been enriched is an objective test, ascertained by asking whether the reasonable person would consider the defendant to have received something of value. As Goff & Jones notes (at [5-39]), where the provision of services is in issue, considerable debate can arise as to whether the ‘enrichment’ is properly characterised as the services themselves or their ‘end-product’. In this case, the Defendants contend for the latter, saying that the purpose of Mr Gray’s involvement in Blackmoor was the raising of capital. Goff & Jones suggests (at [5-39]) that, in deciding the proper characterisation of the relevant benefit:- “The best approach is for the court to keep an open mind, and to take all the circumstances into account, including whether the parties themselves thought that the benefit being transferred was the services or their end-product.”

[441]The value of any enrichment is also to be determined, in the first instance, by an objective test, namely “the price which a reasonable person in the defendant’s position would have had to pay for the services” (Benedetti (at [17])). The authorities show that such “price” may take different forms. So, in Brenner v First Artists’ Management Pty Ltd [1993] 2 VR 221, a ‘pure services’ case concerning the provision of management services to a pop group, the Court considered it would be appropriate in many cases to assess the value of the services by applying an hourly rate to the time spent, making a “global assessment” where an itemisation of the hours spent or of the precise services is not possible. However, in other cases, the Court has adopted a different approach to valuation where, for example, a commission, fee, royalty or some other basis reflects industry practice or the parties’ own understanding of the value of the claimant’s services (see Goff & Jones (at [5-45]-[5-46])). Finally, if the defendant can show that he or she valued the enrichment less than its market value, that market value may be reduced to reflect the defendant’s ‘subjective devaluation’ (Benedetti (at [18])).

[442]Applying these principles here, the Claimant says that it would be wrong simply to look at the end-product rather than taking into account “all thecircumstances”, consistent with the approach suggested in Goff & Jones (noted at [440]). I was also referred further to Brenner, including for the proposition that “where the services were requested and accepted, the law will not stop to enquire whether they were, on any other basis, of benefit to the party requesting and accepting them”. However, this did not seem to advance matters much beyond it being well established that the provision of ‘pure services’ can constitute enrichment for the purpose of a claim in restitution.”

[36]The judge concluded at paragraph 451 that, in circumstances where the principal collaboration was the raising of capital, the claimant knowingly took the risk that he would not be paid for his work unless he was successful. The parties’ mutual understanding in that regard was consistent with market practice. Thus, the enrichment of the defendant company could not be said to lie in the individual services provided by the claimant: “Rather, I would have found that such enrichment lay in their end product in the form of committed investor capital and that the appropriate measure of value would have been a fee, commission or percentage share based on the level of capital raised, not the time spent (or expenses incurred) to that end. Since Mr Gray failed to raise any capital, I would therefore have found that BIPL was not enriched” (original emphasis).

DISCUSSION

[37]I start with the pleadings of the appellant and the second respondent. I do so in the light of the objections raised by Mr Horne to the case advanced in Mr Jones’ skeleton argument.

[38]Paragraph 22 of the appellant’s amended particulars of claim plead, further and alternatively to the existence of the agreement, that the appellant should have equitable compensation for, inter alia, the improvement of Trigfan “in satisfaction of his proprietary estoppel and/or on the basis that the [respondents] have been unjustly enriched at the expense of [the appellant]”.

[39]Paragraph 24 of the second respondent’s re-amended defence denied that the appellant was entitled to the compensation claimed in paragraph 22. Any expenditure of time and money in improving the property was incurred of the appellant’s own volition and not pursuant to any contract or other arrangement that would give rise to any right to compensation. Paragraph 24 said that the second respondent was “embarrassed as to the lack of particulars with regards to the alleged proprietary estoppel and/or unjust enrichments claims and complete lack of pleading as to which particular parts of the [appellant’s] claim these elements apply and as to which [respondent].”

[40]Without prejudice to those points, paragraph 24 denied that the second respondent had made any promise as to Trigfan or ever encouraged the appellant to expend any monies with regards to the appellant’s mistaken belief that he was the entire beneficial owner of the property. As for unjust enrichment, any sums paid with regard to the mortgage were in consideration of the appellant’s occupation of Trigfan and any sums expended on it were at the appellant’s own volition. The second respondent denied he had been enriched and/or unjustly enriched. It was submitted that the appellant had in any event not set out what factor would make any enrichment unjust. As regards both the proprietary estoppel and unjust enrichment claims, the second respondent argued that no evidence had been advanced as to whether(i) the works carried out by the claimant had enhanced the value of the property or

(ii) quantifying the extent of any enhancement.

[41]The appellant took issue with the respondent’s notice, in which a number of submissions are made. They include that the respondents did not know and could not be expected to know that the appellant expected to be paid for the works, there being no evidence on which to base such a finding. For example, the appellant had not kept any contemporaneous records of the works done by him to Trigfan. It was further argued that if the respondents were enriched, it was not unjust for them to retain the benefit thereof. As the works were carried out by the appellant’s company, he had not shown that these were at his cost.

[42]I am in no doubt that there is no procedural restriction on the second respondent advancing his case along the lines of the respondent’s notice and the skeleton argument of Mr Jones. The amended particulars of claim plead unjust enrichment by reference to the asserted facts which are said to constitute the agreement to let the appellant take the beneficial interest in Trigfan. Insofar as the unjust enrichment claim may be said to proceed on some other factual basis, the amended particulars vouchsafe no details. Furthermore, the grounds on which permission to appeal was given concern matters of law; namely, whether the judge failed to follow the 4-stage enquiry articulated in Benedetti v Sawiris and whether any benefit to the respondents fell to be assessed by reference to the cost of the works or, instead, any uplift in the value of Trigfan as a result of them. In so saying, and indeed throughout this judgment, I bear in mind that the four questions are broad headings and are not themselves legal tests. Rather, they are “signposts towards areas of inquiry involving a number of distinct legal requirements”. The purpose of the law of unjust enrichment is “to correct normatively defective transfers of value, usually by restoring the parties to their pre-transfer positions”: ITC v HMRC

[2017] UKSC 29

, paragraphs 41 and 42 (Lord Reed).

[43]This leads me to the appellant’s criticism that HHJ Jarman KC in effect wrongly elided the issue of the alleged agreement with the issue of unjust enrichment. That criticism is at the heart of the assertion that the judge failed to address the third Benedetti v Sawiris question of whether the respondents had been unjustly enriched.

[44]At paragraph 38 of the judgment, the judge dealt expressly with the issue of unjust enrichment by reference to the payments made by the appellant to the first respondent. That claim failed because the appellant conceded that he would have made those payments in any event. Permission to appeal that aspect of the judge’s order was not granted. Nor was permission granted in respect of the unjust enrichment claim concerning the appellant’s works to Trigfan, as that claim applied to the first respondent.

[45]At paragraph 39, the judge referred not only to the concession but to “the findings made above”, when concluding that “no part of the alternative claim is made out”. So far as concerns the appellant’s works, paragraph 28 of the judgment addressed the issue head on. The judge asked himself “why Mr Jones should carry out work on the property ... unless he had been given an assurance that he could buy the property.” The answer was that “the situation evolved so that such works were carried out over a number of years after he and his family moved in, much of which was to accommodate his particular tastes”. At paragraph 32, the judge added that “The events after 2009 are more likely to be part of an evolutionary process which [the appellant] took upon himself ...”.

[46]Mr Horne says that these findings are insufficient to dispose of the claim in unjust enrichment in respect of the works. Mr Jones demurs. There was, he says, no separate factual basis being put forward by the appellant, other than the agreement which the judge found not to exist. That can be seen from the amended particulars of claim. It can also be seen, he says, from the transcript of the hearing, where Mr Horne is recorded as saying “there is also the freestanding unjust enrichment claim against the first defendant, and that falls to be dealt with separately”.

[47]I agree with Mr Jones. The judge’s findings of fact (which the appellant does not have permission to challenge) were a proper basis for concluding, not just that the alleged agreement did not exist, but also that the elements of unjust enrichment were not made out, as regards the appellant’s works to Trigfan.

[48]The present claim is, I find, not made by reference to failure of basis. Plainly, there was nothing conditional in the parties’ understanding of why the appellant was undertaking the works. Nor has it been suggested by the appellant that this aspect of the unjust enrichment claim is founded on a mistake vitiating the appellant’s consent to the conferring of the benefit.

[49]Accordingly, the foundation of this aspect of the unjust enrichment claim can lie only in the concept of free acceptance (see paragraph 23 above). In free acceptance, it is crucial that the defendant, as a reasonable person, should have known that the claimant expected to be paid for the services. The judge’s findings of fact, however, mean that the appellant failed to surmount this hurdle. There is no finding that the appellant expected to be paid, as he carried out the various works. On the contrary, the plain thrust of the judge’s findings is that he did not. He was carrying out the works because he was living in Trigfan with his family. The works were for their convenience. They were part of the “evolutionary process” described by the judge.

[50]In his skeleton argument, Mr Horne contends that this “evolutionary process” is “consistent with [the appellant’s] mistaken belief as to his ownership of Trigfan, which should have been obvious to [the second respondent]”. Since the appellant had paid for his occupation of the property, “it should have been obvious to [the second respondent] that [the appellant] expected to be paid for the works he carried out at Trigfan.” For the reason just given, I reject this submission. The only inference that can be properly taken from the evidence before the judge is to the opposite effect. The rationale was that the works benefited those who were living in the property. It is too late for the appellant to try to construct a factual matrix to support this aspect of the unjust enrichment claim.

[51]The appellant takes issue with the judge’s description in paragraph 28 of the judgment of much at least of the works being carried out to accommodate the family’s particular tastes; and of the example given of the copper bath. Mr Horne draws attention to the schedule compiled by the quantity surveyor, which shows far more than this. There are, for example, electrical works, renewed plumbing and heating, new kitchen walls and ceiling, new floors, extensive garden works in the form of “hard” landscaping; as well as the external rendering, which features heavily in the appellant’s case that the second respondent accepted the works because he knew about them but allowed the appellant to continue with them.

[52]I do not consider that the schedule of works takes the appellant’s case anywhere. The basic finding of the judge at paragraph 28 was that the appellant carried out the works because he was living at Trigfan with his family on a basis that was not time-limited, which resulted from him finding himself in need of a family home and which was not said to be more financially onerous than if he had secured accommodation elsewhere. On the contrary, at paragraph 20 of the judgment, the judge said it was apparently undisputed that the monthly sum paid by the appellant was less than the market rental value of the property.

[53]The appellant submits that pursuant to CPR 52.21(4), I may draw any inference of fact I consider to be justified from the evidence. So far as the schedule is concerned, the only inference that emerges from the evidence, as disclosed in the transcript of the trial before HHJ Jarman KC, is that the schedule was necessitated because the appellant had not kept a contemporaneous record of the time spent on the works or the cost of materials. The plain inference is that the appellant did not keep such a record because, for the reasons given above, he did not expect to be paid.

[54]In the circumstances, nothing therefore turns on the judge’s comment that the schedule was a document filed by the appellant rather than a joint production with the respondents.

[55]As I have already mentioned, the appellant relies heavily on Mate v Mate for the submission that the judge erred in his approach to the Benedetti v Sawiris questions. In Mate v Mate, the claimant failed in her proprietary estoppel claim but succeeded on the claim of unjust enrichment. In the present case, Mr Horne criticises HHJ Jarman KC for treating the two causes of action as inextricably linked. I do not consider this criticism is justified. A claim for unjust enrichment needs to rest on a proper factual basis. The closer the facts said to support such a claim are to the facts said to support a proprietary estoppel, the more likely it will be that the unjust enrichment claim will add nothing to the proprietary estoppel claim. Gray v Smith is a case in point: see paragraphs 32 to 34 above.

[56]In Mate v Mate, the success of the unjust enrichment claim depended on findings of fact by the deputy judge that were conceptually different from those made in respect of the claim based on promissory estoppel. The deputy judge found that the claimant expected to be paid for her services and the mother and two brothers knew this: see paragraphs 27 to 30 above. In stark contrast, the appellant in the present case advanced no conceptually separate factual scenario. In any event, the judge’s findings were that there was an explanation for the carrying out of the works which did not engage the free acceptance head of unjust enrichment.

[57]Since the appellant failed to show that he expected to be paid for the works to Trigfan, there is no question that the second respondent should have known the appellant expected to be paid. We therefore do not reach the point articulated in Goff & Jones (paragraph 23 above) where it is necessary to ask whether the second respondent had a reasonable opportunity to reject the proffered services.

[58]This means the judge cannot have erred in failing to find that the second respondent accepted the works undertaken by the appellant, at the various times these were being carried out. In any event, however, I do not consider that the judge erred in his finding as to the second respondent’s awareness of the works. The judge heard extensive oral evidence about what the respondents knew of the works undertaken by the appellant. At paragraph 27 of the judgment, the judge said that he accepted the evidence of the respondents as to the extent of their knowledge of the works. The second respondent’s evidence was that he saw re-rendering taking place and heard building noise but that he was working away during much of the period in question and was not able to see everything that was going on at Trigfan from his property. Even if the appellant could surmount the problem regarding payment for the works, the limited extent of the second respondent’s knowledge meant the judge was under no obligation to find that the works had been freely accepted. Despite what Mr Horne appeared to suggest, I do not consider that any de minimis principle applies to the evidence, such that the second respondent’s knowledge of the rendering works fixed him with acceptance of everything that was undertaken by the appellant at Trigfan. I also observe that, at paragraph 14 of his witness statement dated 15 September 2023, the second respondent did not know until the Spring of 2020 that the appellant had obtained panning permission in November 2014 to undertake works to Trigfan; and that this had been done without the second respondent’s knowledge or permission. There is no indication that this statement collapsed under cross examination.

[59]Since, on the judge’s findings there was no unjust element vis a vis the works undertaken by the appellant, it may be thought to be irrelevant whether the second defendant was enriched and, if so, to what extent. There are, however, dicta in Benedetti v Sawiris that indicate the position might not be so straightforward. In that case, there was no question but that there had been free acceptance by the defendant of the claimant’s services and of the need to compensate him for this. Both Lord Reed at paragraphs 113 and 138 and, more explicitly, Lord Clarke at paragraph 26, posited that there may be cases where it would be unjust not to compensate a claimant for services even though “there was no free acceptance of the services before or at the time they are rendered but the defendant has accepted that he has received some benefit...” (paragraph 26).

[60]In the present case, the second respondent’s primary case is that he does not accept he received any benefit from the works undertaken by the appellant. The fact is, nevertheless, that he and the second defendant own a property that may, as a result of the appellant’s actions, be worth more than would have been the case if those works had not been undertaken. The judgments in Benedetti v Sawiris suggest that there could be scope for a restitutionary remedy in such a scenario. Importantly, Lord Clarke considers that, in such circumstances, the court should respect the defendant’s position if it is that the value of the benefit is not the market value of the services but something less.

[61]Before the judge, the appellant adduced the quantity surveyor’s evidence, which valued the works at around £119,000. The judge noted that the appellant had not adduced any evidence as to the extent to which Trigfan’s value on the open market had been enhanced by the works. Before me, the appellant’s case was that the correct measure of the value was £119,000; whereas the second respondent submitted that, since this was not a case where the recipient of the service had asked for it, the correct measure if unjust enrichment applied would be any uplift in value. Given that the appellant had not seen fit to adduce evidence on this, he had failed to prove his case.

[62]If the appellant had succeeded in showing that the requirements of free acceptance, as articulated by Goff & Jones, had been met, then there would have been a case for saying that the market value of the services was the correct measure; or, at least, that it would be the starting point for the restitutionary assessment. But, for the reasons I have given, the appellant has not so succeeded. Accordingly, the most that can be said on the appellant’s behalf is that – despite the second respondent’s pleaded position – the present case may be of the kind envisaged by Lord Clarke. I do not consider it can properly be said that, given the way in which the appellant chose to proceed before the judge, any issue arises as to the burden of proof shifting from the appellant to the second respondent. It was sufficiently clear before the judge that the second respondent was, in effect, contending that the value of the works, as set out in the schedule, was not the way he saw any benefit accruing to him and the first respondent; and that any such benefit could only be the unevidenced uplift in value.

[63]Although he did not put it quite in the way I have done, this analysis broadly corresponds with the stance taken before me by Mr Jones. He submitted that where the recipient of services has not requested them, the starting point is not the value of those services but the “end product”, which in this case would be the effect on Trigfan’s value. Even leaving aside Benedetti v Sawiris, the cases make plain that any starting point is just that; it is not a rigid rule. Thus, in Mate v Mate, the claimant was entitled not just to compensation for her services on a time basis but to a fee that took account of the uplift in the value of the land: see paragraph 29 above. In Gray v Smith, the judge said that, if it had been necessary to do so, he would have found that the enrichment lay in the end product of the services provided: see paragraphs 35 and 36 above. In short, a fact and context-specific approach is called for. Having said all that, one can readily see why, in the sort of case Lord Clarke had in mind in paragraph 26 of Benedetti v Sawiris, awarding a sum equivalent to the value of the services would often be unjust to the recipient. In conclusion, HHJ Jarman KC was not wrong to highlight the fact that there was no evidence before him as to any uplift in the value of Trigfan as a result of the appellant’s works.

[64]Mr Horne submitted that it would not have been possible to obtain evidence that could show the extent to which Trigfan’s value had been enhanced by the appellant’s works. I do not accept that submission. It would plainly be within the competence of a professional valuer to opine on the amount by which works of improvement to a property have enhanced its open market value. I agree with Mr Jones that the likely explanation for the appellant’s stance before the judge was tactical, in that the cost of the works was likely to be greater than any uplift in value. The appellant cannot now be heard to complain if the tactic proved to be unsuccessful.

[65]For the above reasons, the appellant has not shown that the judge erred in either of the ways asserted in the grounds upon which permission to appeal was granted. For completeness, I should say that, if the appellant had succeeded, I would have agreed with Mr Horne that, as a joint owner of Trigfan with the first respondent, the second respondent is in the position of a single owner, as regards everyone other than the first respondent. He would, therefore, have been liable for 100% of any restitutionary remedy.

[66]The appeal is dismissed.