“39. First, it is important, when dealing with personal claims based on unjust enrichment, to bear in mind what was said by Lord Goff of Chieveley in Lipkin Gorman v Karpnale Ltd[1991] 2 AC 548 , 578, when rejecting a submission that, when dealing with a claim to restitution based on unjust enrichment, it was for the court to consider the question of injustice or unfairness on broad grounds, and that it should deny recovery if it thought that it would be unjust or unfair to hold the defendant liable: “The recovery of money in restitution is not, as a general rule, a matter of discretion for the court. A claim to recover money at common law is made as a matter of right; and even though the underlying principle of recovery is the principle of unjust enrichment, nevertheless, where recovery is denied, it is denied on the basis of legal principle.”
“(1) The Secretary of State must provide throughout England, to such extent as he considers necessary to meet all reasonable requirements– …”
“‘NHS continuing healthcare’ means a package of ongoing care that is arranged and funded solely by the NHS where the individual has been found to have a ‘primary health need’ as set out in this guidance. Such care is provided to an individual aged 18 or over, to meet needs that have arisen as a result of disability, accident or illness. The actual services provided as part of the package should be seen in the wider context of best practice and service development for each client group. Eligibility for NHS continuing healthcare places no limits on the settings in which the package of support can be offered or on the type of service delivery”
“A person only becomes eligible for NHS continuing healthcare once a decision on eligibility has been made by a CCG, informed by a completed Decision Support Tool or Fast Track Pathway Tool. Prior to that decision being made, any existing arrangements for the provision and funding of care should continue, unless there is an urgent need for adjustment.”
“Any dispute between a Primary Care Trust and the relevant social services authority about – (a) a decision as to eligibility for NHS Continuing Healthcare; or (b) where a person is not eligible for NHS Continuing Healthcare, the contribution of the Primary Care Trust or social services authority to a joint package of care for that person, shall be resolved in accordance with a dispute resolution procedure agreed between the two bodies concerned.”
“We set out the processes to follow when there is a disagreement concerning an eligibility decision (executive decision).”
“Directions state that PCTs and Las in each local area should agree a local dispute resolution process to resolve cases where there is a dispute between NHS bodies, or between LA and a PCT, about eligibility for NHS continuing healthcare and/or about the apportionment of funding in joint funded care/support packages. Disputes should not delay the provision of the care package, and the protocol should make clear how funding will be provided pending resolution of the dispute. Where disputes relate to LAs and PCTs in different geographical areas, the relevant LA and PCT should agree a dispute resolution process to ensure resolution in a robust and timely manner. This should include agreement on how funding will be provided during the dispute, and arrangements for reimbursement to the agencies involved once the dispute is resolved.”
“Who Pays? sets out the expectations for when there is a dispute between PCTs as to responsibility?”
“…The NHS is expected to act in the best interests of the patient at all times and work together in the spirit of partnership. Ministers have specifically asked to be advised of NHS bodies who are unable to reach local resolution to any disputes between themselves...”
“41. For as long as I can recall, NHS bodies have worked under very considerable financial pressure. The demands on our resources are always far greater than our ability to fund services. Without getting into the complexities of NHS financing, I can assure the court that the practical consequences of the mistake made by LPCT and then SWLCCG in not providing funding over many years was not that the NHS body ended the year with a profit. On the contrary, failing to fund services for JD would have reduced any overspend which the NHS body was facing or, if there was no overspend, would have enabled the NHS body to fund services for other patients. 42. It is not possible to go back over so many years in order to determine the precise financial position for either LPCT or SWLCCG in any of the relevant years where the Council is making its claim. If, as it appears, an understandable and honest mistake was made in that funding responsibility was not accepted by these NHS bodies and if, which is a matter of speculation, an evaluative judgment had been made that JD was eligible for CHC, those NHS bodies would have been obliged to commission a package of services for JD. It is impossible to say whether either of these bodies would have taken the decision to continue commissioning services for him at Broughton House or would have arranged services for him in a different way, potentially at a lower cost. 43. However, the only beneficiaries of this honest mistake were other patients who had services funded for them when those services would not have been provided if the same money had been used to fund services for JD. Given that resources are and have always been so tight within the NHS, I can say it is certain that neither LPCT or LWCCG benefited from this mistake, in the sense that it banked the money which would have been spent on funding JD and retained that as a “profit”
“a. The exclusivity principle applies where the claimant is challenging a public law decision or action and a) his claim affects the public generally or b) justice requires for some other reason that the Claimant should proceed by way of judicial review; b. The exclusivity principle should be kept in its proper box. It should not become a general barrier to citizens bring private law claims in which the breach of a public law duty is one ingredient.”
“66. Let me now turn to the present case. The claimant’s claim is based upon the allegation that the defendants delivered to him after-care services pursuant to section 117 of the 1983 Act but failed to make payment for those services as was their duty. 67. The defendants raise some formidable defences to that claim, but they can have no legitimate objection to the claimant proceeding under Part 7 of the CPR. This is a private law claim, even though based upon section 117 of the 1983 Act. It has no wider public impact. Justice does not require for any other reason that the claimant should proceed by way of judicial review. If the exclusivity principle is allowed to block this claim, it will become an instrument of injustice. 68. In the result, therefore, I dismiss the first ground of appeal.”
“The complaints made of the All Wales Special Review Panel) (AWSRP) in the Particulars of Claim are central, explicit and suitable for determination by judicial review. For instance… the Claimant submits that the AWSRP applied irrelevant criteria…” … I am far from persuaded that a civil action in the High Court is the optimum way of resolving such disputes... … The AWSRP is a specialist body, experienced in the determination of the needs of a patient for continuing health care. ... By contrast the High Court exercises a general jurisdiction and when confronted with a case such as the present it must choose between the opinions of experts. He was therefore ‘satisfied that the institution of the present proceedings by writ rather than by application for judicial review deprives the LHBs of protection that they would otherwise have enjoyed and is inconsistent with the just conduct of the proceedings.”
“[138] Before leaving the question of restitution, I note that the judge considered (first judgment 10-12) that the time limit for claims for judicial review in CPR Pt 54.5 applied to the claim for restitution because he regarded its primary focus to be a challenge to the Council's failure to determine the licence fee for the relevant years, a public law act or decision. He relied in part on the decision of Plender J in Jones v Powys Local Health Board[2008] EWHC 2562 (Admin) . As the judge extended time, it is not necessary to decide whether he was correct, but I do not consider that he was. The factor making the payee's enrichment unjust is rooted in public law, but the right to restitution and the obligation to make restitution are part of the private law of obligations. Just as there is no requirement that the time limit for judicial review applies to the tort of misfeasance in public office, so also it should not apply to claims seeking restitution against public bodies: see the discussion and the decisions cited in Williams, Unjust Enrichment and Public Law (2010) 49-52, and Burrows, A Restatement of the English Law of Unjust Enrichment (2012), para 21(4) and the commentary at 113.”
“39. The emphasis can therefore be said to have changed since O’Reilly v Mackman[1983] 2 AC 237 . What is likely to be important when proceedings are not brought by a student against a new university under Order 53, will not be whether the right procedure has been adopted but whether the protection provided by Order 53 has been flouted in circumstances which are inconsistent with the proceedings being able to be conducted justly in accordance with the general principles contained in Part 1. Those principles are now central to determining what is due process.”
“[62] I am unable to agree that CLBC obtained a benefit as a result of the care Ms. Skibinski provided to Lynn following termination of the contract negotiations. Ms. Skibinski did not provide the care to CLBC. Although Peel and Garland establish that a benefit may be negative (such as an avoidance of an expense that might otherwise have been incurred), this principle is not applicable to the present case. The evidence is that CLBC operates under a budget fixed by government. At the relevant time, there was a waiting list of approximately 40 adults in the Upper Fraser Region in need of various services. It was Mr. Birdi’s evidence that “wait lists are necessary because of funding restraints.” [63] It follows that CLBC’s not paying for Lynn’s care did not increase the amount of money in its coffers, except perhaps temporarily within the current fiscal year. Within its budget, it merely applied elsewhere the money it might have paid for Lynn’s care. For this simple reason, it cannot be said that CLBC was enriched by the service given to Lynn by Ms. Skibinski.”
“Norah Baker was an indigent for whose care the appellant was responsible prior to Jan 1 1950 when the area in question was annexed by the respondent. The respondent by the act and fact of annexation and by the terms of said Exhibit 11 para 10 assumed responsibility for the social service obligations of the appellant to the residents of the area annexed and the fact that one welfare case was inadvertently omitted from the list cannot permit the respondent to escape the responsibility for that case. To paraphrase Lord Wright it is against conscience that it should do so”
“Unfortunately it was not made clear exactly why there was thought to be an unjust enrichment. Although the unjust factor was obvious – the claimant had made a mistake of fact – the establishment of the benefit is more problematic. The most straightforward view is that Ottawa was under a statutory duty to provide for Norah Baker so that it was incontrovertibly benefited by having that duty fulfilled by Carleton, But the Ontario Court of Appeal had specifically rejected the trial judges view that Ottawa had such a duty. Ottaway’s duty may therefore have been a contractual one owed to Lanark...”
“[315] On balance, …I now think that a better explanation for the bar on the defence of change of position to Woolwich claims is to be found in the stultification principle advanced by Professor Bant and other scholars. In essence, to allow scope for the defence would unacceptably subvert, and be inconsistent with, the high principles of public policy which led to recognition of the Woolwich cause of action as a separate one in the English law of unjust enrichment, with its own specific “unjust factor”.”
“It is worth emphasising that while it appears that change of position is not a defence to a public authority under the Woolwich principles (see 23(2)(b)”
“I wish to stress, however, that the mere fact that the defendant has spent the money, in whole or in part, does not of itself render it inequitable that he should be called upon to repay, because the expenditure might in any event have been incurred by him in the ordinary course of things. I fear that the mistaken assumption that mere expenditure of money may be regarded as amounting to a change of position for present purposes has led in the past to opposition by some to recognition of a defence which in fact is likely to be available only on comparatively rare occasions.” comparatively rare occasions.”
“must put it forward “fairly and squarely” in his statement of case so that “its factual merits can be explored at the trial”; he must also adduce evidence and give disclosure in support of the defence. Where it is: “… based on the incurring of expenditure … after a payment was received from the [claimant], it is not essential that the money expended … [was] identical with the money … received from the [claimant].”