Andrew Scott has drawn to my attention an interesting case on 'enrichment'

in Greater Manchester Police v Wigan Athletic. It is here

http://www.bailii.org/ew/cases/EWCA/Civ/2008/1449.html

Wigan Athletic Football Club is a Premiership team, who like all football

clubs, have policing of the game provided by the local constabulary. Under

s.25 Police Act 1996, the police can charge for 'special police' services

where provided at another's request.

The police, having provided the service for many years, state that the

policing levels necessary were higher than in previous years. The Club

insist that such increased policing is unnecessary but the police provide

it anyway.

Held (overturning Mann J)

(i) There is no request for the additional policing under s 25, so no

claim for the extra policing possible.

(ii) No claim in unjust enrichment is possible because the Club has not

'freely accepted' the benefit of the additional police. They had made it

clear they didn't think the extra police necessary.

Maurice Kay LJ dissents on the basis that the Club were incontrovertibly

benefitted by the extra police (the majority don't seem to discuss in any

detail this alternative basis of establishing enrichment). The games

couldn't take place without a Saftey Certificate. No Safety Certificate

could be obtained without the policing levels determined by the Chief

Constable. Without the extra police, no game.

FWIIW, my opinion is that the case is wrong on the s 25 point, and Mann

J's judgment was misunderstood. By requesting police for the game there

was a request within the meaning of s 25. Dave Whelan (the owner of Wigan)

could not have successfully insisted "I want to play the match but only

pay for two constables as that is all that I think necessary". The level

of policing necessary in order to obtain the Safety Certificate was not a

matter for him but for the Chief Constable. If he thought the Chief

Constable was wrong he could either (i) not play the game or (ii) seek

judicial review of the decision on numbers. Once he had requested policing

for the game, he was bound under s 25 to accept the numbers fixed by the

Chief Constable.

(cf West Yorkshire Police Authority v Reading Festival Ltd [2006] 1 WLR

2005 where the event could have gone ahead without the sort of policing

provided.)

That being so, no claim in unjust enrichment did, or could, arise.

My opinion here is more than usually suspect as I do not support Wigan.

Robert Stevens

Professor of Commercial Law

University College London

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