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Part 1 Unjust Enrichment And Public Law In England And Wales
1.
Definitions And Controversies
3
'Restitution' Or 'Unjust Enrichment'
3
Using The Map
5
The Criteria For A Claim In 'Autonomous' Unjust Enrichment
7
'Public Bodies' And 'Public Law'
10
Conclusion
18
2.
Woolwich And The Creation Of The Public Law Reason For Restitution
20
The Facts
20
The Background To The Claim
21
A Wholly Private Approach? Potential Unjust Factors Available To The Woolwich
23
Duress Or Colore Officii
23
Inequality
24
No Consideration
24
Failure Of Consideration
26
Mistake Of Law
26
Two New Options For Recovery
27
What Is The Woolwich Unjust Factor?
28
Illegality
28
Incapacity
29
Absence Or Failure Of Basis
29
Inequality
30
A Wholly Public Approach: Could Restitution Simply Be A Response To A Public Law Event?
31
The Solution: A Hybrid Approach
36
3.
The Scope Of The Public Law Reason For Restitution
40
The Scope Of The Public Law Reason For Restitution: Eight Key Questions
40
Need There Have Been A Demand For The Public Law Reason For Restitution To Operate?
40
Need There Have Been A Protest For The Public Law Reason For Restitution To Operate?
41
To What Extent Is The Public Law Reason For Restitution Overridden By Statute?
42
What Exactly Does The Claimant Recover?
44
Is It Always Necessary To Bring Two Separate Cases, One Action For Judicial Review And One Private Law Claim?
49
Over What Subject Matter Does The Public Law Reason For Restitution Extend?
52
What Sort Of Invalidity Triggers This Reason For Restitution?
54
Which Kinds Of Body Will Give Rise To This Reason For Restitution?
55
The Scope Of The Public Law Unjust Factor: Restitution For Public Bodies
56
The 'Swaps' Cases
57
4.
A Hierarchy Of Reasons For Restitution
70
The Advantages Of The Public Law Reason For Restitution Over The Private Law Unjust Factors
72
Reasons For Restitution And Time Limits: Is A Hierarchy Possible?
74
Deutsche Morgan Grenfell V IRC
75
Further Arguments Against The Hierarchy
97
Does Mistake Provide A Broader Ground Of Recovery Than The Public Law Reason For Restitution?
102
How Wide Are The Effects Of The Public Law Reason For Restitution?
110
How Wide Is The Finding Of Ultra Vires?
110
How Far Does A Claim In Unjust Enrichment Extend Into Consequential Loss?
113
Evidence For The Hierarchy And The Issue Of 'Closed' Swaps
118
Conclusion
121
5.
Defences
123
What General Implications Does The Hybrid Nature Of The Reason For Restitution Have For Defences?
123
Time Limits
128
Private Law Defences
136
Change Of Position
136
Estoppel
149
Bona Fide Purchase
150
Impossibility Of Counter-Restitution
150
Submission To An Honest Claim
151
Ultra Vires
152
Passing On
152
Special Defences In Public Law Unjust Factor Cases
157
Fiscal Disruption
157
The Law Commission's 'Special' Defence Of Exhaustion Of The Statutory Mechanism
159
Prospective Overruling
160
Conclusions And Further Implications
161
Part 1 Conclusions And Further Implications
162
Part 2 Unjust Enrichment And Public Law In France
6.
Public Body Unjust Enrichment Claims In France; Lessons For England And Wales
167
The Public/private Divide In France
167
The French Law Of Unjust Enrichment
171
Enrichissement Sans Cause
172
Répétition De L'indu
174
Gestion D'affaires
176
Enrichment Without Cause And Public Bodies
177
Quasi-Contracts Are Automatically Adjusted In Their Application To Public Bodies
178
If Courts Have To Choose Between Two Events, Both Of Which Are Actually Relevant To The Basis Of The Claim, Some Courts Will Choose One, And Others The Other
181
As Well As Adjusting Its Quasi-Contracts To Take Account Of Public Bodies, French Law Also Distinguishes Between Public Law Rules And Public Law Procedure, So That Even Within The Private Procedure Adjustments Can Be Made To Take Account Of The Public Nature Of One Of The Parties To The Claim
190
The 'Absence Of Cause' Approach Does Not Necessarily Provide A Better Solution For Public Body Enrichment Cases
192
The Need To Accommodate Public Bodies In Private Claims Has A Tendency To Change The Rules Of Private Law Itself
200
Conclusion
202
Part 3 Unjust Enrichment And Public Law In The European Union
7.
Unjust Enrichment And The EU Institutions
207
An EU Law Of Unjust Enrichment?
209
Unjust Enrichment As A General Principle Of EU Law
211
Staff Cases
212
Annulment Cases
214
Three Party Cases
222
Unjust Enrichment: Only a 'General Principle' Of EU Law
229
Conclusion
231
8.
Unjust Enrichment In National And European Law, And The 'Remedies' Jurisprudence Of The ECJ
232
Historical Development Of The Relevant European Union Law
233
The Member State/EU Divide: Remedies In National Courts For Breach Of European Law
236
The Principles Of National Procedural Autonomy, Equivalence And Effectiveness, And The Three Phases Of The Ecj's Case Law
236
Unjust Enrichment And Ultra Vires In National And Eu Law; Two Different Models For Analysing The Division Of Labour Between The Member States And The EU
242
Two Important Factors Against Model 2
247
Cases In Which A Member State Or A National Intervention Agency Levies Money In Contravention Of EU Law
253
Cases In Which An NIA Or The EU Pays Out Money In Breach Of Eu Law Which It Then Seeks To Recover
265
Is There An EU Law 'Event' Of Ultra Vires In Cases Involving Both EU And National Law?
269
Conclusion[—]the Impact Of EU Law On National Unjust Enrichment Claims Involving Public Bodies
