“I would approach that further question in this way. The method by which issues of fact are tried in our courts is well settled. After the normal processes of discovery and interrogatories have been completed, the parties are allowed to lead their evidence so that the trial judge can determine where the truth lies in the light of that evidence. To that rule there are some well recognised exceptions. For example, it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be to take that view and resort to what is properly called summary judgement. But more complex cases are unlikely to be capable hoping resolved in that way without conducting a mini trial of the documents without discovery and without oral evidence.”
“It does not follow from these salutary principles, however, that summary judgment can never be appropriate in a complex case where fraud is alleged. As an example of such a case, counsel for the Bank referred me to the decision of Hart J in R B G Resources Plc (in liquidation) v Rastogi and others[2004] EWHC 1089 (Ch) . In that case, summary judgment was granted, after a four day contested hearing, for a sum in excess of US$300 million against individuals who, on the claimant's case, had orchestrated a fraudulent scheme involving hundreds of allegedly bogus metal trading transactions with companies which they secretly controlled. Although the fraud was, as Hart J said, “both massive and complex”, he acknowledged that its proof turned on the establishment of one central proposition, namely the connection between the supposedly independent counterparties and the defendants: see paragraph [§13]”
“As with any novel application of the relevant principles, it is necessary to remind oneself at the outset that the law of unjust enrichment is part of the law of obligations. It is not a matter of judicial discretion …… English law does not have a universal theory to explain all the cases in which restitution is available. It recognises a number of discrete factual situations in which enrichment is treated as vitiated by some unjust factor. These factual situations are not, however, random illustrations of the court’s indulgence to litigants. They have the common feature that some legal norm or some legally recognised expectation of the claimant falling short of a legal right has been disrupted or disappointed. Leaving aside cases of illegality, legal compulsion or necessity, which give rise to special considerations irrelevant to the present case, the defendant’s enrichment at the claimant’s expense is unjust because, in the words of Professor Burrows ‘A Restatement of the English Law of Unjust Enrichment’ (2012) at section 3(2)(a), “the claimant’s consent to the defendant’s enrichment was impaired, qualified or absent.”
“Decisions concerning the question whether an enrichment was at the expense of the claimant demonstrate uncertainty as to the approach which should be adopted. Such tests as have been suggested have been too vague to provide clarity …. It would be unwise to attempt in this appeal to arrive at a definitive statement of the circumstances in which the enrichment of a defendant can be said to be at the expense of the claimant. Nevertheless, in view of the uncertainty which has resulted from the use of vague and generalised language, this court has a responsibility to establish more precise criteria. Some observations of a general nature should therefore be made, before turning to the specific context in which the issue arises in the present case. It should be said at the outset that these observations are concerned only with personal claims, and not with proprietary claims.”
“Situations in which the defendant has received a benefit from the claimant, and the claimant has incurred a loss through the provision of that benefit, usually arise where the parties have dealt directly with one another, or with one another’s property …... There are, however, situations in which the parties have not dealt directly with one another, or with one another’s property, but in which the defendant has nevertheless received a benefit from the claimant, and the claimant has incurred a loss through the provision of that benefit. These are generally situations in which the difference from the direct provision of a benefit by the claimant to the defendant is more apparent than real.”
“It has often been suggested that there is a general rule, possibly subject to exceptions, that the Claimant must have directly provided a benefit to the Defendant. The situations discussed in the two preceding paragraphs can be reconciled with such a rule, if it is understood as encompassing a number of situations which, for the purposes of the rule, the law treats as equivalent to a direct transfer, in the sense that there is no substantive or real difference. So understood, the suggested rule is helpful. It may nevertheless require refinement to accommodate other apparent exceptions, and it would be unwise at this stage of the law’s development to exclude the possibility of genuine exceptions, or to rule out other possible approaches. Where, on the other hand, the defendant has not received a benefit directly from the claimant, no question of agency arises, and the benefit does not consist of property in which the claimant has or can trace an interest, it is generally difficult to maintain that the defendant has been enriched at the claimant’s expense. The point is illustrated by the case of MacDonald Dickens & Macklin v Costello[2012] QB 244 , where the provision of services to a company was held not to enrich its directors and shareholders. It is also illustrated by the example, discussed in the Relfo case[2015] 1 BCLC 14 , of a claimant who makes a mistaken payment to a third party, who in consequence makes a gift to the defendant out of property in which the claimant has no interest, and into which he is unable to trace. As Arden and Floyd LJJ recognised (paras 78 and 114), the claimant does not have a claim in unjust enrichment against the defendant. The claimant suffers a loss through making the payment to the third party, who is unjustly enriched at his expense. A claim in unjust enrichment therefore lies against the third party (subject to any defences available). But no claim of a personal nature lies at the instance of the claimant against the defendant: the claimant has not incurred any loss through the making of the gift.”
“As regards the third question, the claimant must positively identify what has been described as the ‘unjust factor’ (see Samsoondar v Capital Insurance Co Ltd (Trinidad and Tobago)[2020] UKPC 33 ;[2021] 2 All ER 1105 at [19] and Goff & Jones at 1-21). There is widespread judicial acceptance of this terminology and the need for an unjust factor …. It is the ‘unjust factor’ that distinguishes the English claim in unjust enrichment from the civilian ‘absence of basis’ approach. Examples of unjust factors include mistake, duress, undue influence, failure of consideration, necessity and legal compulsion. These unjust factors are recognised because they establish that the claimant did not intend the defendant to receive a benefit in the circumstances, either because the claimant never had an intent to benefit the defendant in those circumstances or the intent was vitiated or qualified in some way.”