Fairmont Residential Limited v North Central London Integrated Care Board [2026] EWHC 1672 (KB)

[2026] EWHC 1672 (KB)APPEAL REF.: KA-2025-000230
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Venue ROYAL COURTS OF JUSTICEDate 02.07.2026
Before
MR JUSTICE RITCHIE
Between
FAIRMONT RESIDENTIAL LIMITEDAppellantNORTH CENTRAL LONDON INTEGRATED CARE BOARDRespondentMr Simon Butler (counsel instructed by HCR Legal LLP) for Claimant/Appellant.Mr Laurence Page (counsel instructed by Hill Dickinson LLP solicitors) for Defendant/Respondent.Hearing Hearing date: 25.6.2026
APPROVED JUDGMENTThis judgment was handed down remotely at 14.00pm on Thursday 2 nd July 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

The appeal

[1]This is an appeal from a decision of Deputy Master Charles Bagot KC (the DM) arising from a judgment dated 31.10.2025. The Judge ordered that the claim for unjust enrichment was struck out and ordered summary judgment for the Respondent, with costs. By notice of appeal issued on 24.11.2025 the Appellant seeks, on 7 Grounds, to set those decisions aside. Permission to appeal was granted on the papers by me.

Bundles and evidence

[2]The Court was provided with an appeal bundle, two authorities bundles, two skeleton arguments and one additional case report.

The issues

[3]I consider that the appeal raises the following key issues:(i) Did the Amended Particulars of Claim (POC) plead unjust enrichment sufficiently in law and by way of asserted facts and matters, for the action to progress?(ii) Did the evidence before the DM support the claim for unjust enrichment so as to give the Appellant a real, as opposed to a fanciful, prospect of success? Appeals - CPR r. 52

Review of the decision

[4]Under CPR r. 52.21 every appeal is a review of the decision of the lower Court, not a rehearing, unless the Court decides otherwise (or a Regulation or Act provides that it is a rehearing) and will only be granted if the decision below was wrong or unjust due to a serious procedural or other irregularity. In this appeal, in my judgment, the general rule that the appeal is by way of review applies. Findings of fact and credibility[5]In relation to appeal from findings of fact made at a trial the decisions in Henderson v Foxworth [2014] UKSC 41, per Lord Reed at [67] and Grizzly Business v Stena Drilling [2017] EWCA Civ. 94, per Longmore LJ at [39-40] and Deutsche Bank AG v Sebastian Holdings [2023] EWCA Civ. 191, by Lord Justice Males at [48] - [55], apply so that that any challenges to findings of fact in the Court below have to pass a high threshold test (if the case was determined at trial). The Appellant needs to show the Judge was wrong in the sense that there was no sufficient evidence upon which the decision could have been reached or that no reasonable Judge could have reached that decision, or that the Judge took into account an irrelevant matter or failed to take into account a material and relevant matter. Two deferential principles are applied. Firstly, where the trial judge heard and saw the evidence being given live over the course of the trial he/she was better placed to assess the evidence than the appellate court is having only the transcript and documents. Secondly, there is a generous ambit for disagreement allowed on such findings. The threshold for appeals against findings of fact at trial was also summarised by Lord Justice Lewison in Volpi v Volpi [2022] EWCA Civ. 464, [2022] 4 WLR 48, at paras. 2-4 and 52. In this appeal those principles do not apply. No live witnesses were called before the DM and no cross examination took place. The DM was deciding the applications on written evidence, without hearing any witnesses, so I am not disadvantaged in comparison with the DM when reading that evidence. However, the normal test under CPR Part 52.21 applies and this is a review not a rehearing.

Striking out applications under CPR r.3.4

[6]Under this rule the Court may strike out a claim where, inter alia, it discloses no reasonable grounds for bringing a claim. The Court’s approach when considering this power is generally to accept, as provable and true, the facts and matters set out in the pleading, unless they are contradictory or obviously wrong: see MF Tel Sarl v Visa [2023] EWHC 1336 (Ch), Per Master Marsh, at [10].[7]It is not appropriate to strike out a claim in a developing area of law or one where the law is in flux or properly disputed, see for instance Barrett v Enfield BC [2001] 2 AC 550, in which Lord Slynn ruled [at p560] that:
“With great respect to the opinion of the members of the Court of Appeal, I have come to the view that this claim should not be struck out at this stage on that Ground. It may well be that many of the allegations will be difficult to establish and that they will fail. In my opinion, however, the importance of seeing in each case whether what has been done is an act which is justiciable or whether it is an act done pursuant to the exercise or purported exercise of a statutory discretion which is not justiciable requires in this kind of matter, except in the clearest cases, an investigation of the facts. This is not the clearest case taken as a whole, even though some allegations if they stood alone might justifiably be struck out. I consider also that the question whether it is just and reasonable to impose a liability of negligence is not to be decided in the abstract for all acts or omissions of a statutory authority, but is to be decided on the basis of what is proved. The comment of Andenas and Fairgrieve that one of the problems about the uncertainty of the law in this area is that many cases are decided on an application to strike out or on a preliminary issue on assumed facts as stated in the statement of claim—"Dealing with such hypothetical facts deprives the courts of the opportunity to apply the operational-policy distinction to concrete facts. It is likely to exacerbate the formulation of clear statements of principle"—is to be borne in mind. See, also the discussion of the facts in Phelps v Hillingdon London Borough Council [1999] 1 WLR 500 where the importance of investigating the precise nature of the service provided was made clear.”

Chronology of the action

[8]The key events occurred between April 2023 and May 2024. The background was that since 2008 the Appellant had provided residential accommodation, care and support to WG, who has severe autism, lacks capacity and has complex disabilities. Both parties agreed that the duty to provide such accommodation and care was imposed on the Respondent by S.3 of the National Health Services Act 2006, so the Respondent placed WG with the Appellant and paid for the placement. After WG settled in, the 2008 fee agreed between the parties for the annual services was £3,757 pw. The contracts were arranged annually, in writing. Remarkably, in the first 10 years, the Respondent did not uplift the annual fee but eventually it was uplifted by negotiation in 2018 to £4,250 pw. By around that time there was a benchmarking service provided by a not-for-profit organisation called CareCubedCalculator (CCC), which indicated a figure of £3,600. However, as Mr MacDonald wrote in his evidence, WG had additional needs and additional hours were needed, so a higher fee was negotiated than that CCC base figure. The next negotiation took place in 2020 when the parties eventually agreed £5,055 pw and in 2021 it rose to £5,133 pw by negotiation. In 2022 protracted negotiations took place and the Appellant asked for £5,439 pw but the Respondent offered less and (according to Mr MacDonald) had shifted away from the CCC benchmarking, despite the assertion that 80-90% of London Local authorities and many ICBs used CCC as a benchmark. The Appellant gave notice to terminate. The Respondent then agreed the sum which the Appellant had originally sought.[9]In 2023 the annual negotiations started again and the Appellant sought an increase to £5,983 pw. The Respondent refused to pay that much and in May 2023 served notice on the Appellant, asserting that they were entitled to a 6 months’ notice period and terminating the annual contract on 5.11.2023. During that time the Respondent tried, but failed, to find any alternative provider. The Respondent’s staff worked together with WG’s parents, and from time to time the Appellant’s staff, during that period.[10]Before the DM the parties agreed that the contract ended on 5.11.2023 for the purposes of the unjust enrichment claim. WG had not been removed. From then on, the Appellant continued to accommodate and provide care services to WG, on what the Claimant pleaded was an “unstable placement”. I shall call it an “out of contract” placement (OOC), to use the words of Ms Jones, the Appellant’s expert. Mr MacDonald and Ms Jones gave written evidence that, for OOC placements, the Appellant and other comparable residential care providers charged the “fair and reasonable” cost of providing the services, which was equivalent to the market value of the OOC. Such charges were “uplifted”, so higher than the long term “in contract” rate (IC). The DM found that the Respondent continued to pay to the Appellant the old 2022 rate (£5,439 pw) but stopped paying altogether in March 2024 and paid nothing from then until WG left. It took the Respondent 6 months after termination to find another IC placement and WG was moved in May 2024. The IC rate they negotiated with the new provider was less expensive than the Appellant’s proposed IC rate, at £4,240 pw. The DM was not informed of the details of the new placement or whether it has proved to have been adequate to meet WG’s needs or involved the same number of hours of care.[11]The Appellant delivered monthly invoices to an address of the Respondent from December 2023, claiming £7,500 pw, its OOC rate for WG. It was the Appellant’s case that this was the actual weekly cost, including some profit element, for WG taking into account that he was not being provided with services in contract (IC) - long term, he was staying OOC, for an uncertain duration and could leave at short notice, which incurred higher agency staff costs and involved commercial uncertainty. Because the Respondent did not pay the invoiced rate, the Appellant sued. The claim form was issued on 2.1.2025. The Appellant sought the difference between the sums which the Respondent had paid (at the 2022 IC rate of £5,439 pw) and the invoiced 2023 OOC rate (of £7,500 pw, rising to £8,250 pw in 2024).

Pleadings

[12]At paragraph5.1 of the POC the Appellant pleaded that the Respondent served notice on 5.5.23 bringing the contract to an end on 5.11.23. This was admitted in the defence. At para5.2 the Appellant pleaded that, on termination, the Appellant was required to stop providing care and accommodation but had to cooperate with the Respondent to enable WG to transfer to another provider, along with his medical notes. This was denied in the defence, instead the Respondent pleaded that a further contract had arisen between the Appellant and the Respondent based on the Respondent paying the 2022 weekly fee. Alternatively, the Respondent pleaded a variation. At paragraph5.3 the Appellant pleaded that the Respondent’s obligation to make payments under the contract ceased when the contract ceased. The Respondent admitted this but pleaded the post termination contract and in the alternative the variation.[13]The Appellant also claimed restitution on the basis that the Respondent had failed to transfer WG elsewhere at the end of the contract and the Appellant had continued to accommodate and service his needs without a contract. The Appellant alleged the Respondent was therefore unjustly enriched at the Appellant's expense because the Appellant provided the services and the Respondent failed to discharged Appellant’s reasonable costs and expenses of doing so. Particulars of the unjust enrichment were pleaded at paragraph 6.4. The Appellant asserted that the “market rate” for the services provided was £7,500 per week and asserted that rate was set based upon the CCC figure for the base fee and adding the additional hours needed by WG on top of the CCC figure for the “unstable placement”. The Appellant relied upon the lack of an annual review in 2023 and 2024 in support of the higher market rate. The Appellant asserted it was receiving similar market value fees for other service users and that its method of calculating the claimed fee was fair, proportionate and reasonable and aligned to the “uplifts” of alternative providers at the time and was in keeping with the “market value” of “comparable providers”. The Appellant asserted that a reasonable person in the Respondent's position would have had to pay the claimed rates which were the “market rates”. The Appellant asserted that it was unable to accept a new admission until WG had left and that the Appellant would have achieved the market value rates with a different service user from the 5th of November 2023, had WG been moved then. The Appellant pleaded the Respondent had received an “incontrovertible benefit”, namely specialist care services at the Appellant’s expense and the Respondent would have had to get another service provider to provide the same services. In addition, the Appellant pleaded the Respondent freely accepted the specialist services and never rejected them and “would have known that the Appellant needed to be paid the market rate for the services.” The Appellant pleaded that the Appellant never agreed for the work to be done at the old 2022 rate and had refused to continue working at that rate during the April-May 2023 negotiations. The Appellant pleaded that the Respondent benefited from the Appellant providing the services (OOC) and that the Respondent knew the Appellant would need to be paid the market rate for the services. The Appellant pleaded the Respondent's duty towards WG. The Appellant denied that the tendered weekly payments at the 2022 rate were an acceptance of those as the relevant fee and asserted the weekly fees received were on account. Particulars of the value of the unjust enrichment were then provided.[14]In the Amended Defence, dated August 2025, the Respondent asserted that the Appellant knew of and was aware that the Respondent required the Appellant to continue to provide services because they could not find alternative services. They pleaded a post termination contract or an alleged variation. In relation to restitution, the Respondent asserted that the payment made of £5,439 pw discharged the Appellant’s “reasonable costs”. The Respondent pleaded that their payments related to the market rate which was related to the CCC benchmark rate. The Respondent alleged the CCC benchmark covered all hours and there were no additional hours needed by WG. The Respondent alleged that staffing needs did not change for WG. They alleged the Appellant’s (OOC) invoices were sent to an old address in Leeds and they admitted they had failed to pay anything between March and May 2024. They denied any enrichment because they had paid the market rate. The Respondent denied that the Appellant had suffered any commercial uncertainty; pleaded that the claim for unjust enrichment should be struck out due to failure to identify the unjust element and asserted that the facts did not support the claim.[15]In the Amended Reply dated September 2025 the Appellant pleaded that the CCC figure was a simplistic calculation, not used for complex users, because it did not take into account specialisations or special complex user needs. The Appellant had used agency staff for WG because he could have left at any time. The Appellant pleaded the Respondent had been enriched by expecting the Appellant to house and care for WG, with no contract, at a rejected rate.[16]Before any case management directions, disclosure of documents, before witness statements and expert reports were served, the Respondent applied by a notice dated March 2025 to strike out the claim and for summary judgment. When the case first came before the DM he very properly adjourned and suggested the pleadings could be fleshed out more. The amended pleadings were served and the matter came back before the DM. The evidence which the DM had before him from the Appellant consisted of three witness statements from Mr MacDonald and an expert report from Ms Charlie Jones, dated 8.7.25. The evidence from the Respondent was contained in witness statements from Ms Burge, their solicitor, employed by Hill Dickinson.

The Judgment

[17]The DM described his Judgment as extempore but he had reserved it and delivered it a week after the hearing. He made findings of fact in relation to the termination of the contract which the parties agreed occurred on 5.11.23. He summarised the law in relation to striking out applications and summary judgment applications, accepting that strikeout should only occur in plain and obvious cases. He then summarised the law in relation to unjust enrichment and set out four key elements which the Appellant had to prove and the need for quantification of the value of the services. He referred to Benedetti [2013] UKSC 30, at [10] and [17] and ruled that the Appellant had to prove the objective market rate of the benefit which would be the price which a reasonable person in the Respondent's position would have to pay. He ruled that such a valuation did not ignore the cost to the Appellant but was not directed towards only the cost. The burden of proof lay on the Appellant for factors one to three. He relied on the case of Samsoondar v Capital [2020] UKPC 33, and ruled that:
“A party must identify sufficient facts to show how the three elements on which the burden falls on the Appellant to prove are satisfied.”
And that includes “The need to identify and plead the unjust factor.” At paragraph 38 of the judgment, which I shall refer to in short as [J38], he ruled that the Appellant had to show the case came within an established category. He briefly summarised the pleadings at [J41 to 49]. He then turned to the evidence at [J50-96]. At [J51] he rejected the Appellant’s criticism of the lack of evidence from any Respondent employed witness and the fact that the only evidence came from the Respondent’s solicitor. He then summarised Mr MacDonald's first witness statement as asserting that CCC was used to cost placements by the Appellant, there was no defence to it, and 80 to 90% of London Local Authorities used it but the Respondent had moved away from using it due to budget constraints. The Appellant relied on CCC figures for the requested April 2023 uplift. However, the calculation of the post termination fees was made at the true cost, which Mr MacDonald asserted was fair and reasonable. The DM found this was a “change in approach” and that CCC figures were not used. He then dealt with the expert’s report and noted she had been asked only whether the fee was fair and reasonable. He ruled that asking such a question was not applying the correct test. At [J76] the DM noted that the expert advised that it was usual for providers to charge the cost of care after termination of the contract and they had a duty to maintain their financial viability. At [J77] he ruled that the expert had applied the wrong focus and was not looking at the market value from the Respondent's perspective. Taking into account competition, the actual objective value was the correct test. The DM then turned to the evidence of Ms Burge and noted the lower fee charged after WG’s placement was transferred. He noted Ms Burge asserted that the Respondent had paid the Appellant more than the CCC figure and so she asserted that there was no basis for a claim for unjust enrichment. At [J81] the DM considered that, in his second witness statement, Mr MacDonald had taken a “strikingly different” approach by asserting that the CCC figure was only the starting point. At [J86] the DM decided that he had serious reservations about the later allegations made by Mr MacDonald and the expert and held that they addressed the wrong question. At [J94] the DM ruled that the Appellant’s focus on the cost of the care was not the correct method of calculating the market rate for what I have termed the OOC fee. He accepted that the CCC figure was not the end of the assessment of market value because higher figures could be negotiated. At [J96] he found that the Respondent had established that the Appellant would fail at trial to prove unjust enrichment based on a figure substantially greater than the CCC figure. He went on to rule at [J97 and J99] that the Appellant’s pleading was inadequate. The DM accepted the Appellant had pleaded the first two elements of unjust enrichment but ruled that the Appellant had failed to plead that it was unjust for the Respondent to retain the benefit. He did so because the Respondent had paid the Appellant substantial sums per week over and above the CCC figure and because the Appellant's evidence had focused on costs not the objective market rate for a reasonable Respondent. He put aside altogether Mr MacDonald's evidence and the expert’s evidence and therefore held there was no basis for claiming a greater sum than the sum paid. At [J105-107] he ruled that the POC were deficient because the Respondent had paid the weekly fee (at the 2022 rate) which was greater than any realistic market rate, using the correct test. He ruled the Appellant would need a subjective revaluation to succeed, which was impermissible. At [J108] he ruled there was no previous case on part payment leading to unjust enrichment and he gave summary judgment for the Respondent.[18]In a nutshell, at the interlocutory stage, the DM:(i) rejected and set aside all of the Appellant’s evidence, both from their financial controller who had set and negotiated fees and their expert, on the objective market rate for OOC, unstable placement services to be paid by a reasonable person in the Respondent’s shoes;(ii) accepted the evidence of the Respondent’s solicitor on the objective market rate for OOC services to be paid by a reasonable person in the Respondent’s shoes, despite the fact that the solicitor was not an expert and was not a witness of relevant facts;(iii) found that the pleadings were deficient because injustice could not be proven because the Respondent had paid what the DM had found to have been the market rate, based only on the Respondent’s solicitor’s evidence and in the absence of any relevant or credible evidence from the Appellant.

The Grounds of Appeal

[19]Ground 1, expert evidence wrong excluded. The Appellant submits that the DM fell into error by excluding the Appellant's expert evidence. The expert evidence went to the assessment of the objective market value in issue, namely the price a reasonable person would pay in the Respondent's shoes for specialist residential care services of a bespoke nature, dependent on the needs of WG, and the staff necessary to provide for those needs. This was also dependent on an evaluation of comparator practises and costs. Expert evidence was needed to advise on that and it was not right for the DM to rule that a fixed tariff applied. The Appellant submitted that a fair and reasonable charge for the OOC services was the same as the market rate and in any event summary judgment was not the appropriate forum for determining what the market rate was when the facts were disputed, only trial was the correct forum.[20]The Respondent submitted that Ms Jones had been asked only whether the rates were fair and reasonable, which was the wrong question. The Respondent asserted that no “emergency rate” had been pleaded, all the Appellant had pleaded was commercial uncertainty but the Appellant had done nothing new after the contract had ended. The Respondent relied on the evidence of Ms Burge and asserted that the rate which they paid was the market rate. The Respondent submitted that the Appellant's failure to ask Ms Jones what the objective market rate was undermined her whole report. They stated that the expert did not set out comparators.[21]To resolve this Ground a detailed reading of the report of Ms Jones is needed. She was clearly an expert in care consultancy. Her expertise was not an issue before the DM. She was asked to advise on whether the charges which the Appellant had made after termination of the contract were fair and reasonable. The context is crucial here. She was not asked to advise whether the charges were fair and reasonable within an annual negotiated care contract. The first part of her report related to a summary of the general in contract (IC) negotiations. She set out the various costing models, including the CCC model for annual IC negotiations. She advised that the CCC model was not sufficiently bespoke for complex cases. This therefore went directly to the dispute between the parties about whether the CCC figure was determinative or a mere baseline or a benchmark for WG’s IC rates.[22]Ms Jones then turned to termination. She advised that care and residential suppliers negotiated annually with bodies like the Respondent and, if they did not reach agreement, contracts were terminated. She advised on the various different notice periods needed for different types of residents with different needs. Longer notice periods were needed for those with complex needs, like WG. She advised that if no new placement was found then the services provided after the contract were, to use her words: “out of contract”. That is why I have used the phrase OOC. When such a contract is ended the Respondent has various options. They can:(1) put the resident in permanent new accommodation with care or(2) put the resident in temporary accommodation with care or(3) can ask the OOC residential care provider to continue providing residential care pending the move. The expert advised that it was challenging for providers such as the Appellant to decline such a request and one can fully understand that, particularly in the case of a resident with complex care needs like WG. The expert advised that the usual practice after the termination of the contract, hence for OOC services, instead of using the previous IC style fee, was to “cost” the services provided. The expert advised that WG was particularly difficult because he had a record of 222 “behaviours”, therefore it would be difficult to find another placement with staff sufficiently well trained to cope with him. So, the expert concluded that, with WG, there was a risk to staff and an experienced team would be needed, because he presented significant challenges, which would make finding a new placement difficult. I note that this was the case because the Respondent wholly failed to find a new placement in the six-month notice period and failed for the six months thereafter. On a key point, namely comparables for OOC rates, Ms Jones advised that, for the services that she had supported in the last year, 85 had terminated their contracts with the state supplier (or vice versa) and hence had charged OOC rates. Those rates were “uplifted” above their IC rates. The higher rates were invoiced to the relevant ICB/local authority panels and were all paid. The expert advised that no care home should be providing services at a loss. When an ICB cannot source an alternative placement and a resident is left placed with a service provider, out of contract, the fee charged became the fee which was fair, proportionate and reasonable in the OOC market based on costs.[23]In his judgment the DM did not adequately summarise and appears to have misunderstood the second part of the evidence of Ms Jones. So, he set it all aside and did not take it into account, because he considered that the question asked of Ms Jones missed the point at issue in the case. I consider that in doing so he fell into error. What the DM did not appreciate was that the issue which the expert was advising upon in the case was not the market rate for IC services, negotiated annually, based on the CCC as a baseline/benchmark factor but not the only factor. The DM misled himself into focusing on the IC rate, not the OOC market rate. He ignored the second part of the expert’s report on the OOC rate and how that was calculated in the market. It seems to me that the Appellant’s submissions here are correct on this. The OOC market was arguably different from the annually negotiated IC market. As pleaded by the Appellant, different factors applied. When considering the cost of long-term annual staff services, a service provider can plan and hire accordingly. That is quite different from servicing a complex needs resident on an “unstable”, indeterminate, short-term basis which is OOC. The Appellant did not know whether WG would be staying one week, one month, three months, six months or nine months. Hiring well qualified agency staff is likely to be more expensive than hiring on annual contracts or employing the staff. The DM did not grapple with this key issue.[24]In my judgment the DM fell into error at [J75, 77, 94, 96, 100, 116 and 117] when he rejected the Appellant’s expert evidence on the OOC market rates and how they were calculated. He did not consider the evidence of the 85 other terminations in the same year, which the expert specifically referred to, all of which charged uplifted fees over and above the previous IC fee rates based on costs. He did not address the expert's evidence that the OOC market rate was the fair and reasonable rate in the OOC market. He mistakenly found that the OOC rate should have been the same as either:(1) the long term previously negotiated IC rate in 2022, or(2) the CCC rate.[25]Ms Burge. CPR PD32, at para 18.2, requires that, in a witness statement, the witness must indicate those statements made from her own knowledge and those which are matters of “information and belief”. If the latter, she must state the source of the information and belief. The DM accepted the evidence of Ms Burge. He specifically considered the Appellant’s submissions that it was not appropriate for the Respondent’s solicitor to give evidence, but he rejected those. In doing so I consider the DM fell into error. Ms Burge did not purport to be an expert on care service rates. She is not qualified as a nurse, an occupational therapist or a case manager. In addition, Ms Burge was not a witness of fact who could give evidence about negotiating appropriate market rates either in contract (IC) or out of contract (OOC), for residents with complex needs. She could give evidence of facts about the meetings which she herself attended. Therefore, the assertions which she made in her witness statements could not have been her own. If one looks at her first witness statement Ms Burge stated that the knowledge she used to assert the facts in her statement were true and were her own knowledge. Then she stated that where matters were not within her own knowledge she had indicated the source. She was perfectly entitled, as she did, to exhibit interparty correspondence. However, she then went on to make many important factual assertions. She asserted there was no reasonable basis to assert that the Respondent had been enriched. She asserted the weekly payments made to the Appellant were proper value for the services provided. She provided no source for those assertions and she had no expertise. She had no relevant facts which she herself could put in the witness statement. She went on to give her opinion evidence on the care cubed assessments. The only reference she made to the hearsay source of her assertions was in paragraph 21 in which she started she was “informed by the Respondent” that the CCC assessments are an independent benchmarking tool. She did not say who asserted this from the Respondent. For all the DM knew, it could have been a secretary or junior in the Respondent's organisation.[26]Regretfully, in her second witness statement, Ms Burge criticised the evidence of the complex care needs of WG, but had no medical expertise for being able to do so. She stated she was instructed that WG’s needs remained the same but did not say the source of those instructions. This was a point in issue. The Appellant’s case was that WG was made anxious by the news that he would be moved out of the Appellant's accommodation (after many years living there). It was not for the Respondent’s solicitor to seek to give evidence where there was a dispute concerning the care needs of a disabled person. She went on to correct a serious error of fact which she had put in paragraph 19 of her first witness statement. She had asserted that the Respondent had paid the Appellant in full from November 2023 to May 2024. That was not correct. They had not made any payments since March 2024. This again shows the danger of a party's solicitor purporting to give evidence without citing the source. In her second witness statement she again gave detailed evidence about the CCC rate, stating only, as her source, that the Respondent informed her of matters. She does not say who within the Respondent's organisation did so. I regret to say that I consider that the DM misdirected himself, when relying on Ms Burge’s evidence and her opinions, about the relevance of the CCC assessments. I doubt that Ms Burge will be permitted to give evidence at trial, in relation to either the market rate for IC or OOC services in this case, she having no expertise and, as far as I can tell, no evidence of fact to contribute to the relevant issues. Ms Burge was present during some of the negotiations over the 2023 IC rate, so she could have given evidence of fact about her involvement.[27]The Respondent could have put in a witness statement from a person with experience, who negotiated IC and OOC rates, and had dealt with some of their many needy service users, but wholly failed to do so.[28]For these reasons I uphold Ground one of the appeal.[29]Ground 2, misunderstanding the CCC tool. The Appellant submitted under this Ground that the DM placed weight on the CCC tool as indicating or being equivalent to the market rate. The Appellant submitted that the CCC tool benchmarked part of the IC rate to assist the parties and was a starting point but it was not a bespoke care valuation tool and did not cover, inter alia, the additional hours needed by WG. The Appellant submitted that the CCC rate did not properly reflect the Benedetti valuation test, which involved looking at all the relevant factors objectively to determine the market value of the OOC services provided by the Appellant on the Respondent's behalf, in the Respondent circumstances.[30]The Respondent’s response was that they had paid substantial sums to the Appellant which were more than the CCC benchmark and hence there was no element of unjust enrichment. The Respondent relied on the DM’s finding [J107] that injustice cannot arise where the Appellant has received substantial sums. The sums paid were greater than the market rate and the Respondent submitted that there was no previous case law on unjust enrichment where the value claimed was the net difference between a previously agreed contract rate and the costs actually incurred. The Respondent submitted that the Appellant's evidence from their expert was irrelevant because it was focused on the wrong factor. The Appellant's evidence from their financial controller was undermined by his U-turn in his witness statements and the DM was correct in his findings.[31]At [J116] the DM ruled that the only evidence which was put before the Court to counter the proposition that the objective market rate was in the region of the CCC assessment was an expert report directed at the wrong question and Mr MacDonald's later witness evidence which included a U-turn from what he previously accepted and expressed in strident terms, that the CCC figures should be a guide. At [J109] the DM concluded that the Appellant had no real prospect of establishing that the market rate was more than the actual sum paid.[32]In my judgment the DM fell into error by failing to separate out in his mind the difference between:(1) the annually negotiated “in contract” (IC) rate using the CCC assessment either as a baseline or a benchmark but with additional elements for WG; and(2) the OOC rate charged by service providers, after the termination of the annual contract, for which the market was, on the Appellant’s case, completely different. So, for instance, in addition to the factors I have set out above, which affect only the OOC rate, for a resident with complex care needs and the need for highly trained staff to deal with his behaviours, the market for temporary accommodation and services maybe small and difficult or even non-existent. To know what actually was possible to find as a permanent or temporary placement in November 2023 the DM would have needed to hear what the Respondent did by way of searches (which were not successful) and hear expanded evidence from Ms Jones about the 85 terminations in the previous year which she set out in her report. He would have needed to ask himself:
“what happens with OOC placements”
Ms Jones said that an uplifted rate was charged and that it had to be a fair and reasonable rate. The DM had no evidence from the Respondent about whether there was any available after termination market for short term placements for patients with complex needs. If there was no market at all for such placements, other than admission to hospital, if there was any space in any such hospitals, then the question would be:
“what are the rates which could apply to the services provided by the Appellant other than the fair and reasonable charges?”
All of this is arguable on the Appellant’s evidence. The DM did not consider this. Instead, he found that the CCC rate was the market rate and because the Respondent had paid more than the CCC rate no enrichment arose. Thus, he discarded the Appellant’s evidence altogether. The DM also did not take into account that Mr MacDonald stated that the Appellant asserted that the CCC figure was NOT the market IC rate. He asserted, with undisputed evidence, that in previous years it was uplifted for WG considerably. I deal with this further below.[33]For these reasons I consider that the appeal succeeds on Ground two.[34]Ground three. No evidence of market rate from the Claimant. In this Ground the Appellant asserts that the DM was wrong to find that the Appellant had put in no evidence of the relevant market rate. It is partly a rehash of the first two Grounds but adding the rejection of the evidence of Mr MacDonald. The Appellant asserts that the expert evidence and the evidence of Mr MacDonald did provide such costings and that this issue should have been left to trial, because it was arguable and evaluative. Further, it was submitted that if the Respondent's solicitor's evidence was at all relevant it was simply different evidence to be evaluated at trial.[35]In response the Respondent submitted, as they had done in relation to Grounds one and two, that the DM was right to ignore the Appellant’s expert evidence because she had been asked the wrong question and right to reject the Appellant's financial controller’s evidence because he had changed his position.[36]I have already dealt with the issue of whether the Appellant’s expert’s evidence should have been excluded, when analysing Ground one. I have also dealt with Ms Burge’s evidence. To analyse the evidence of Mr MacDonald one needs to understand the content of his three witness statements. In witness statement one, dated 8.7.2025, he set out his qualifications and experience as financial controller. He set out the full history of the negotiations between the Appellant and the Respondent between 2008 and the date of termination. He set out the explanations for why uplifts were requested in each of the preceding years. He asserted that the Appellant did rely on the CCC rate when requesting IC uplifts, but that was a basis for them not a determinant of the figure that they requested, because there were additional hours for WG due to his severe and complex needs. One key example of the difficulty of the negotiations was his evidence about the April 2022 negotiations. He took part. The Appellant asked for an increase of 5.95% to £5,439 and the Respondent refused to agree an increase based on the uplift in the CCC figures. They only offered 2.4%. So, the Appellant served notice to terminate, then the Respondent did an about turn and offered the sum requested. A different negotiation occurred in 2023, the Respondent held its Ground and never agreed to an increased fee of £5,983 per week. I do not understand why any of that evidence should have been rejected by the DM at an interlocutory stage. Mr MacDonald asserted in that witness statement that the Respondent terminated the agreement because the Respondent refused to pay what the Appellant stated was the relevant market rate, benchmarked according to the CCC figure but much higher than the CCC figure due to WG’s specific needs.[37]In my judgment, when considering the CCC figures, it is obvious that there were two separate meanings of the word “uplift”. Firstly, there was the CCC figure produced for WG which was uplifted by the additional hours which WG needed to produce the IC figure. Secondly, there was the inflationary uplift year on year in the base CCC figure. So, if the base CCC figure rose by 5% the Appellant might ask for at least a 5% rise in the whole IC figure. In 2022 and 2023 the parties appear to have been arguing over the inflationary uplift, as I understand Mr MacDonald's evidence, because the IC market value figure which had been paid had always been higher, inter alia, to the additional hours WG needed. Furthermore, in relation to OOC rates, in that witness statement, Mr MacDonald recited and relied on the supportive expert evidence from Ms Jones about OOC rates and repeated her evidence that 85 notices to terminate had arisen within her clients in the year before her report. He also pointed out the factual errors in Ms Burge’s first witness statement sworn on 28.3.2025, namely that the Respondent had paid nothing between March and May 2024. He raised the fact that Ms Burge was their solicitor, not a witness of fact or an expert. The DM rejected those concerns in his judgment.[38]In his second witness statement Mr MacDonald responded to Ms Burge’s further evidence. He alleged Ms Burge had misconstrued his witness statement about the relevance of CCC. He asserted that the Appellant’s IC rates were based on CCC figures but those were only the base fees and additional hours were charged, for instance for community activities and extra support. These varied per residents, but for WG they amounted to 10 hours per day, or 70 hours per week, or £1,225 per week. He answered Ms Burge's assertion that the CCC maximum for the year to April 2023 was £4,214 by asserting that was only the base fee. He stated it was disingenuous of Ms Burge to assert that it was the maximum fee which the Respondent had paid to the Appellant. The DM completely rejected this evidence as an “about turn”. I struggle to understand why he did so. The figures speak for themselves. If the CCC figure for the year 2022/2023 was £4,214 pw but the Respondent agreed with the Appellant to pay £5,439 pw, and that precisely matches the additional hours uplift (£1,225) which Mr MacDonald described. The third witness statement maintains the same approach. The DM overlooked this or failed to deal with the detail of Mr MacDonald's evidence. In addition, in my judgment, he fell into error by conducting a mini trial of the credibility of Mr MacDonald's evidence which was not right in a summary judgment hearing. No live evidence was given, no cross examination had taken place, no re-examination had taken place and Mr MacDonald's evidence was sufficiently internally consistent, as I have analysed above, to have at least a real prospect of success as opposed to a fanciful one.[39]I consider that the DM fell into error in finding that the CCC’s numerical figure was determinant of the market value of the services provided to WG by the Appellant. This was a key disputed issue. This was so both in relation to the IC rate and more particularly in relation to the OOC rate. Therefore, the appeal is allowed on Ground three.[40]Ground four, the injustice factor. Under this Ground the Appellant submits that the DM fell into error in finding that there was inadequate evidence to prove injustice. I shall deal with pleadings under Ground 5.(1) The Appellant submits that the Respondent knew very well that the Appellant would be charging the fair market value for its OOC services after termination. The Respondent had clear knowledge that the Appellant had asked for a higher IC rate for 2023, had the contract continued, than the 2022 IC rate. It was obvious the Appellant would not be charging a lower fee, out of contract, than the 2022 IC rate.(2) The Appellant was providing specialist services, which the Respondent had been wholly unable or unwilling to find or pay for from an alternative provider in the 6 month notice period and so they had failed to withdraw WG.(3) The Respondent had freely accepted the Appellant’s services, so it was submitted that the Respondent was prevented from relying on any subjective lower valuation.(4) The appropriate valuation of the Appellant’s services was the objective open market valuation for OOC services which would be paid by a reasonable person in the Respondent's circumstances. It was submitted that the market value was the fair and reasonable cost of those services, as opined by the expert, Ms Jones.[41]Leaving aside the alleged inadequate pleading, the Respondent submitted that:(1) the Appellant could not prove injustice through free acceptance because the Respondent had paid substantial sums to the Appellant which were more than the CCC benchmark figure. The DM was correct to find that, having received substantial sums, there was no injustice.(2) The Respondent submitted that injustice was not equivalent to a broad view of unfairness or an idiosyncratic view of unfairness, it had to be fitted within established case law categories. Furthermore, there was no previous case law on the type of claimed injustice for the net difference between the old contract rate which had been paid and a higher value placed on the services by reference to what the Appellant thought was fair and reasonable by way of their costs of provision. The Respondent submitted that without established case law this was not a principled analogy case.(3) There was no incontrovertible benefit.(4) The Respondent also submitted that they had received no benefit because their budget had been spent on the Appellant and, insofar as there was any shortfall, it had been spent on other service users. The Respondent relied on Skibinski v Community Living [2012] 317 BCAC 15, BCCA 17in which a Canadian Court of Appeal held that no enrichment arose because the Respondent had spent the budget on others.(5) In verbal submissions the Respondent submitted that the claim based on the free acceptance requirement in the injustice factor could not succeed because the Appellant had not notified the Respondent, before 5.11.2023, that it would charge more for OOC services than the 2022 IC services agreed rate so free acceptance had not been proven.[42]In submissions in reply the Appellant relied upon Surrey County Council v NHS Lincolnshire CCG [2020] EWHC 3550 (QB), a decision of Thornton J. In that case the Respondent funded the care and accommodation of X, a vulnerable adult with autism under a statutory duty to do so. They claimed contribution from the NHS body who had an equivalent duty (under S.3 of the NHSA 2006) on the basis of unjust enrichment. The claim was granted. The Appellant had discharged a liability which, but for the NHS Trust’s unlawful refusal, would have fallen on the Respondent and so the Respondent had been unjustly enriched. Thornton J distinguished Skibinski, see [117 and 121]. The 5 relevant factors in unjust enrichment. At the summary judgment and strike out stage, what the Appellant was required to do was to have evidence to show a real, as opposed to a fanciful, prospect of proving the 5 key elements of unjust enrichment. The factors are set out in Chitty in chapter 33-016; in Benedetti v Sawiris [2013] UKSC 3, in the majority judgment of Lord Clarke, at [10] and in Investment Trust Companies v Revenue and Customs Comrs [2018] AC 275, [2017] UKSC 29, Lord Reed JSC [24], which can be summarised thus:(i) the Respondent has been enriched by receiving a benefit;(ii) the enrichment was at the expense of the Appellant;(iii) the retention of the enrichment was unjust;(iv) there is no defence or bar to the claim.(v) The fifth factor which the Appellant must prove is the quantum or value of the enrichment.[43]Services not provided to us. There was no dispute between the parties about the assertion by the Appellant that enrichment can occur by the provisions of services by the Appellant. There was an issue raised by the Respondent that the services were provided to WG, not them, so there was no enrichment. The DM did not accept that submission and I reject it on the basis that it was at least arguable that where the Appellant provides services to a needy person, which the Respondent had a statutory duty to provide and pay for, those services can constitute unjust enrichment to the Respondent. The Surrey County Council case is sufficient authority for that, if any is needed.[44]No notice of higher charges. Taking the no notice point next. The defence did not plead that point. Even if it had, it is based on an unreal assumption. The plain facts were that the Appellant had requested a higher IC rate in April 2023 and the Respondent had refused to pay it, so the contract was terminated. The Respondent was therefore well aware that the Appellant refused to accommodate and serve WG’s needs at the 2022 IC rate. It is fanciful to suggest that the Respondent believed that the Appellant would charge either a lower rate for OOC services post termination or the rejected rate. The Appellant was obviously going to charge more than the 2022 IC rate. The Respondent never asked how much the rate would be but, by the time they were sent the first invoice, they knew the exact level of charging. They did not withdraw WG then either. I do not accept that it was in any way a legal or evidential defect defeating the unjust enrichment claim that the Appellant did not expressly write to the Respondent so say that if the Respondent failed to remove WG on 6.11.2023, the OOC charges would be at the market rate which would be higher than the 2022 IC rate. I do not consider that the case law on unjust enrichment requires written notification in advance to the Respondent of the precise rates to be charged as any part of the 5 stage test, nor did the DM so find.[45]Injustice factor. The base pleaded injustice arises from the asserted underpayment. In the Appellant’s evidence this arose from the following:(i) The Respondent sought to impose the 2022 IC rate on the Appellant, as the market value for their OOC services after the contract ended in November 2023.(ii) The 2022 IC rate ignored: staff wage inflation; income tax inflation; council tax inflation; power inflation and food and transport inflation for over 18 months.(iii) The 2022 IC rate ignored the short term, uncertain duration of the placement of WG.(iv) The 2022 IC rate ignored the increased cost of highly qualified agency staff over long-term staff, hired due to the placement being of uncertain duration (per Mr MacDonald’s evidence).(v) The 2022 IC rate ignored the CCC inflation uplift on the base or benchmark figures between 2022 and 2023/2024.(vi) Thus, the Respondent was enriched by obtaining services at the 2022 IC rate when the Respondent should have had to pay at the OOC market rate in 2023/2024.[46]Substantial payment. The DM ruled that the Respondent’s tendered payments were substantial and, depending on the meaning of that word, they were. But that was not the issue in relation to the injustice factor. The issue was whether they represented the objective market value of the services provided to the Respondent in their particular circumstances. I have already found that the Appellant’s evidence of the market value was wrongly excluded. Once that evidence is taken into account there is an arguable case that the sums paid were well below the objective market value. In any event the substantial payment point, which the DM accepted as a matter of law, does not emerge from any dicta in any case law relied upon by the Respondent. Looking at first principles, in the old case Lamb v Bunce [1815] 4 M&S 277; 105 ER 836, at p 836,a surgeon who operated in a different parish on a pauper whilst a parish official stood by and watched, asked for payment. The parish refused to pay. The market value of the services was awarded for unjust enrichment. If the facts are altered and the official had paid the surgeon a “substantial sum” which was say only half the market rate, why would the result have been any different? I consider that point to be a matter for trial, not a matter to be rejected as unarguable at an interlocutory stage, whether under the dicta in Woolwich Equitable [1993] AC 70, as the DM did [J40], or otherwise. In Benedetti at [82] Lord Clarke set off the £67 million payment against the market value of the services of approximately £37 million. Had the payment been below the latter figure, there is no suggestion that the balance would not have been awarded. In Goff and Jones on the Law of Unjust Enrichment 10 ed, paras. 5-46 to 5-47, the editors set out various cases in which the valuation of the benefit in restitution cases for services was considered stating at para. 5-46: “Thus, in many cases the courts have instead awarded claimants their costs and additional profit element, reasoning that this is the fairest approximation of the benefit received by the Defendants, since this represents what they would have had to pay for the services on the market.” (see the cases at footnote 98).[47]Free acceptance. There was an interesting and intellectual debate between counsel, involving the Court, over the concept of free acceptance in unjust enrichment claims. On the one hand, the Respondent submitted that the Appellant had to prove free acceptance as a vital element for the injustice factor to succeed. On the other hand, the Appellant submitted that the concept of free acceptance related to subjective devaluation of the market value of the services provided which the Respondent can put forwards due to their particular circumstances. The history of free acceptance is nicely chronologised in Goff and Jones 10th ed. at chapter 17. That also evidenced the raging debate over the scope and limits of the principle. The more limited scope of the principle was dealt with by Lord Clarke in Benedetti at [17] and [34]. Let me try to explain the Appellant’s submission. Assume no contract. If the market value of supplying 1kg of tomatoes to home delivery customers is £10 for most small shops, but the defendant, being Tesco, with large purchasing power, can negotiate £9 per kg with their delivery company, then the market value for such a delivery for Tesco is £9. That is their objective market value with a subjective devaluation of £1. But if Tesco let a new supplier deliver to a Tesco’s customer for a Tesco order for 1kg of tomatoes, knowing that they will charge Tesco the market rate and freely accepting that they will deliver and failing, despite a reasonable opportunity, to say “don’t do that” then the £10 is the correct restitution. The editors of Chitty on Contracts write, at para. 33-025, 35th Ed., that subjective devaluation will be defeated where the enrichment was requested or freely accepted. I deal with this further below by analysing the Respondent’s submissions on free acceptance within the pleadings Ground para. 57.[48]Dealing just with this Ground at the moment, in my judgment, such niceties are not to be decided in strike out applications unless they are absolutely clear. On the facts of this case, it is at least arguable that the Respondent had obvious knowledge before termination that the Appellant would charge more than the 2022 IC rate after termination. Not least because of the failed negotiations. It is arguable as well, on the evidence of Ms Jones and Mr MacDonald, that the fair and reasonable cost rate is the same as the OOC market value for complex care residents who stay on after termination. I do not know what the Respondent’s evidence will be on the normal OOC market rate because they put in no evidence about it. They focussed entirely on IC rates in the witness statements of Ms Bunge.[49]D had spent its budget elsewhere. The Respondent submitted that they received no benefit because they spent the budget elsewhere. The DM did not base his decision on the injustice factor on the Respondent’s assertion that the ICB had received no benefit because they had spent any sums saved by underpaying the Appellant below market value for the OOC services, on other statutory liabilities to other needy persons. That submission was made by the Respondent in the appeal. I reject that submission for the following reasons.(1) I consider it is at least arguable that each statutory liability which the Respondent has to each needy person under S.3 of the NHSA 2006 is unitary, not conglomerated with every other liability,(2) It was agreed that the Respondent was liable to pay the objective market value for the Appellant’s services, if the Appellant proves, on its evidence from Ms Jones and Mr MacDonald, both as served and later at trial as expended, that the market value was higher than the 2022 IC rate, then the Respondent will have underpaid and gained a benefit.(3) I take judicial notice of the fact that some statutory services do not achieve within budget expenditure each year but instead overspend.[50]Valuation. In relation to the injustice factor and the valuation of enrichment when the claim relates to services rendered, the relevant guidance paragraphs in the lead judgment in Benedetti are [13, 15, 17, 18, 25, 34]. Lord Reed also ruled thus:
“100 Prima facie, the monetary value of the services can be fairly ascertained by determining what a reasonable person in the position of the Respondent would have agreed to pay for them. That will depend on how much it would have cost a reasonable person in the position of the Respondent to acquire the services elsewhere in the market (assuming that a relevant market exists, as will normally be the case). The payment by the Respondent of the value of the services to a reasonable person in his position will normally achieve a result which is just to both parties in a case of this kind, since the Appellant will receive the amount for which he could have sold his services to another recipient in the same position, and the Respondent will pay the amount which the services would have cost a reasonable person in his position to acquire from another supplier in the market. The basis of the valuation is thus consistent with the purpose of the valuation exercise. 101 A question arises as to what is meant by “the position of the Respondent”
. The answer can be derived from the purpose of the valuation exercise. In order to arrive at an award which is just to both parties, it is necessary to take account of circumstances which would affect the value placed upon the services by a reasonable person receiving them. Those are also circumstances which would affect the cost to a reasonable person in that position of acquiring the same services in the market, and the amount which the Appellant could have received if he had sold his services to another recipient in the same position. Such circumstances will include in particular the availability and cost of similar services provided by alternative suppliers (as in Sempra Metals Ltd (formerly Metallgesellschaft Ltd) v Inland Revenue Comrs [2008] AC 561), and prevailing rates and practices in the relevant market (as in Cobbe v Yeoman’s Row Management Ltd [2008] 1 WLR 1752). They will include any relevant characteristics of the Respondent, such as, in the context of borrowing, its credit rating, or whether it belongs to the public or the private sector (as in Sempra Metals). They will include other personal characteristics, such as the Respondent’s age, gender, occupation or state of health, if they bear on the price at which such a person could obtain the services in question in the market. To give one example, a film star may not have to pay the ordinary price for a designer dress, as the fashion house may allow her a discount to reflect the fact that her wearing the dress will enhance its brand image. Her being a film star is thus an objective aspect of her position which affects the cost to her (or anyone else in her position) of obtaining such a dress, and therefore affects the value of the receipt of such a dress to a person in her position. The circumstances which are relevant to determining the value of the services to a reasonable person will not however include the personal preferences of the individual Respondent, or any idiosyncratic views which the Respondent may hold as to the value of the services, since the preferences or views of the particular recipient do not affect the services’ value to a reasonable recipient. 102 There may of course be goods or services which are so tailored to the preferences of a particular recipient that the idea of a reasonable recipient (other than the actual recipient) becomes unrealistic: an example might be the costumes designed for the stage performances of some pop artists. Even in such cases, however, the value of the goods or services is not assigned by the recipient, but is likely to be ascertainable on the basis of objective evidence (which may, according to the circumstances, relate to such matters as the cost of obtaining the goods or services from alternative suppliers, or the cost in the market of the materials and services involved and the profit margin which the evidence suggests would be reasonable in the circumstances). 103 The adoption of the objective approach to valuation which I have described, as the normal measure of a restitutionary award, is consistent with the relevant authorities.”[51]As to the market for temporary provision of the services in the current appeal: the particular services needed by WG for his complex needs and behaviours and delivered by the Appellant, only Ms Jones gave evidence on that. 85 of her clients had needed to provide OOC care because contracts had been terminated. The Court can infer from that figure that there may be little or no temporary placement market for high needs residents like WG. In any event that would be a matter for trial.[52]I consider that the DM misdirected himself on the law relating to the injustice factor, inter alia at [J107, 108, 109, 110, 116, 118] and erred in failing to take into account the relevant evidence from the Appellant’s expert and financial controller; and placed weight on irrelevant evidence from Ms Burge which was neither expert nor factual and was hearsay from an unknown source.[53]Ground 5. The adequacy of the pleaded case, CPR r.3.4. The DM accepted that factors 1 and 2 of the 5 factors in unjust enrichment were pleaded. Factors 4 and 5 are not relevant to this appeal. The DM struck out the pleaded case on the basis that unjust enrichment was not properly pleaded in relation to factor 3, the injustice factor [J106]. The reasons given were:(1) all the authorities relied on to prove that the Respondent received a benefit rested on a total lack of payment [J106, 108], so the claim is not in any known category because this Appellant received a substantial payment.(2) The Appellant received substantial payment, referrable to the previous agreed sum in 2022 and more than the CCC “standard benchmark” so there was no benefit to the Respondent.(3) The Respondent had not received significant benefits because it had paid sums higher than any realistic market rate [J107].[54]Known category of valuable benefit. It was not in dispute that providing services for which the Respondent was liable is a known category of benefit. The Respondent’s point (1) here, which the DM accepted, was that some payment had been received by the Appellant and the DM held that there was no authority or case before him in which an outstanding balance was pursued in restitution. So, this claim would be a new category of claim. Although the facts of Benedetti are complicated, Lord Clarke at [6] stated that in the claim for E3.7 billion, on the facts, the Appellant had been paid E67 million for his services already. The trial judge had awarded E75.1 million more. The Appellant appealed for more, the Respondent cross appealed to pay NIL or less. The Supreme Court valued the services at E36.3 million, so there was no outstanding balance due, so the Appellant’s appeal was dismissed and the cross appeal allowed. It seems clear to me that, the Supreme Court was not saying that the Appellant could bring no claim for the unpaid balance in unjust enrichment, quite the opposite, but the valuations did not support the appeal. I have already considered this at paragraph 46 above. I consider that the DM’s decision that this claim for an unpaid balance is not known to law was made in error. In any event, if it was not covered in a previous case, it was arguable that it was analogous to Benedetti.[55]Substantial payment. As for the remaining two reasons given by the DM, I have already considered the substantial payment point at paragraph 40-52 above. Furthermore, I have dealt with the DM’s misunderstanding of the correct market value which was at the root of the claim. It was not the IC long term contract rate, it was the OOC short term unstable service rate which was relevant. The DM should have taken into account the Appellant’s expert evidence and that from the Appellant’s financial controller on the market value of those services and should not have relied on the evidence of Ms Burge.[56]Knowledge and free acceptance. In the appeal the Respondent submitted that the pleadings did not comply with Rogers v Wills [2025] EWHC 1367 at [244] and CPR r.16.4(1)(a). The Respondent asserted that the Appellant had to plead two further matters for the unjust enrichment claim to be adequate and complete:(1) that the Respondent knew that the Appellant would charge a higher rate after termination; and(2) that the Respondent, in that knowledge, and with the opportunity to reject the services, did not do so and thus freely accepted them.[57]In Rogers, HHJ Paul Matthews sitting as a deputy HCJ, was deciding on a claim by a daughter against her mother’s estate for the value of the care she had provided to her mother before death. She claimed in contract or unjust enrichment. The Judge awarded judgment on the basis of the contract. Unjust enrichment was also awarded, despite the finding that there was a contract, which I would doubt was correct because unjust enrichment operates only in a contractual vacuum. The editors of Chitty consider that unjust enrichment cannot arise where there is a contract. However, that is not in issue in the appeal before me. The level of academic dispute surrounding unjust enrichment was laid bare in the judgment at [183-191]. The long analysis of unjust enrichment runs to scores of paragraphs. The academic debate over “free acceptance” is summarised at [216-236] and it is within this analysis that the Respondent seeks to gain succour for their submissions. Concepts of quasi-contract, implied contract, inferring a contract and fictitious promises to pay are discussed. At [244] HHJ Matthews accepted that free acceptance undermines subjective devaluation (the editors of Chitty agree, as set out above) but analyses the debate on whether free acceptance is an overall factor in stage 3, the injustice factor, or merely part of the failure of consideration leading to no contract. He also analyses whether knowledge of the services being provided is required and whether knowledge that they would be charged for is a necessary factor, alongside failure of the Respondent to object when he reasonably could have done so. The old “window cleaner” examples are explored [227-228]. Eventually, at [231], HHJ Matthews ruled that:
“The unjustness lies in the recipient not preventing the needless conferring of the benefit when that recipient realised it was happening, and that it was not free.”
[58]The Respondent also relied on the ruling of Sir Andrew Morritt in Chief Constable of Greater Manchester v Wigan Athletic Ltd (CA) [2009] 1 WLR 1580, [2008] EWCA Civ 1449 at [47] where he stated that:
“As the passages in Goff & Jones, The Law of Restitution, 7th ed to which I have referred make clear, a benefit from services rendered which is neither “incontrovertible” nor requested may be established by their “free acceptance”
. But the concept of free acceptance, as explained in para 1-019, requires that the recipient did not take a reasonable opportunity open to him to reject the proffered services.”[59]Whether the concept of free acceptance is an inherent prerequisite of unjust enrichment, and an inherent part of the injustice factor, or is restricted to a defence to subjective valuation, I consider that it is more than arguable on the facts, that the Respondent by their words or deeds asked the Appellant to continue caring for WG or put the Appellant into a position where they felt morally obliged not to throw him out onto the street after the termination date, pending the Respondent finding a new placement. They knew that commercial services and accommodation were being provided by the Appellant and they knew that the Appellant would charge for those. It is at least arguable that they knew very well that market value charges were accruing, which would be higher than the 2022 IC rate, which had been firmly rejected by the Appellant. They did not request the Appellant to stop the services when they reasonably could have done so and should have done so at the end of the contract. All of the relevant facts and matters were pleaded out. Whether the pleaded facts in paragraphs 1-6 of the POC are analysed in the terms of factor 3 of the 5 factors test, the injustice factor, or just free acceptance, which was expressly pleaded at para. 6.4(xiv), it cannot be said that the POC failed to plead:(1) the relevant services were incurred at the Appellant’s expense;(2) the benefit accrued to the Respondent (being the shortfall between the market value and the paid rate);(3) the injustice was the failure to pay the shortfall;(4) the Respondent knew in advance that there would be a market value higher than the 2022 IC rate and did not refuse the services. It was also pleaded that, had the Respondent transferred WG to another temporary provider, they would have incurred costs at a similar high market rate. The Appellant pleaded that it was unjust for the Respondent to pay below the market rate for WG, an OOC, complex needs, service user, for whom the Appellant had expressly stated a long-term annual service rate would be much higher than the 2022 IC rate.[60]In my judgment the pleaded claim was adequate to satisfy the requirements of showing “reasonable grounds for bringing a claim” in unjust enrichment within CPR r.3.4 and so the DM erred in finding otherwise.[61]The Respondent’s notice. In their notice the Respondent asked the appeal court to uphold the DM’s decision on different Grounds, namely that factors 1 and 2 of the 5 factors relevant for unjust enrichment had not been pleaded. The skeleton argument in support rests on the same submissions that were made to the DM, namely that:(1) the Appellant set its own price based on its true costs of providing the services;(2) that the CCC established the objective market rate for WG;(3) that Mr MacDonald changed his evidence in his second and third witness statements;(4) that the “real world” evidence showed that the rate claimed was well above the market rate at the replacement provider.[62]I have already analysed these submissions above and rejected them. In summary:(1) the Appellant served and relied on expert evidence and its own evidence from Mr MacDonald, who actually carried out negotiations of IC rates and calculated the OOC rates, which was relevant and which the DM wrongly rejected. That evidence showed that the OOC short term rate was different from the IC long term rate. The Respondent’s evidence, in contrast, was not from an expert and not from a witness of fact who carried out such negotiations.(2) I have already ruled that the DM fell into error in finding that the CCC rates were the objective market rate for OOC services for WG.(3) Whilst the DM rejected Mr MacDonald’s evidence in its entirety, I have already analysed that decision and found it to have been in error.(4) As for the replacement service provider’s rates. The DM had no evidence about whether the same level of services, number of hours, exterior accompanied visits and the like were being provided, or whether the services turned out to have been adequate for WG’s needs in the year 2024-2025. That would be a matter for disclosure. Furthermore, they were long term IC rates, not short term, open ended, OOC rates. They were, at the most, a relevant piece of evidence in the determination of the OOC rates for WG and at the least irrelevant. Directly relevant evidence was provided by Ms Jones about the 85 terminated placements and the uplifts charged by the service providers after termination. Thus I dismiss the Respondent’s Grounds.[63]Ground 6 and 7. In these Grounds the Appellant submits that summary judgment should have been refused and the claim should have been allowed to go on to trial. These Grounds are parasitic in the earlier substantive Grounds and hence are granted.

Conclusions

[64]For the reasons set out above, in my judgment the answers to the questions posed in paragraphs 3 (i) and (ii) are both yes.[65]I consider that the claim for unjust enrichment was adequately pleaded, that the evidence of the expert, that Ms Jones, was excluded in error and that the evidence of Mr MacDonald, the Appellant’s financial controller, was excluded in error. In my judgment, the evidence of Ms Burge, the Respondent’s solicitor, strayed well beyond what she could legally give evidence about from her own knowledge, included hearsay from a unnamed sources and included statements of opinion which she did not have the expertise to give. The DM’s findings in relation to the determinative effect of the CCC tool were made in error and his findings that there was no evidence supporting the Appellant’s asserted market rate were made in error. I consider that it was wrong to strike out the claim for inadequate pleading and to grant summary judgment to the Respondent. I grant the appeal on all Grounds. END