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For the benefit of Lord Archer and others, I summarise the views so far expressed on whether he will have to pay anything back to the Daily Star.

1. Nearly everyone seems agreed that the procedure comes first - If the Daily Star can't re-open the judgment against them, that is the end of the matter. The one argument to the contrary relies heavily on Moses v. Macfarlane, and does not refer to the unity of court structure imposed in 1875, one object of which was to stop one part of the legal system contradicting another in this way. Analogies with the re-opening of other types of judgment (eg criminal convictions) have been explored in argument, but no consensus has been reached.

2. If the Daily Star can re-open the case, 6 possible grounds of recovery have been mentioned :
A. Unjust enrichment (Zander)
B. Improper use of process and/or wrongdoing (Mitchell)
C. Failure of basis or of consideration (Scully)
D. Illegitimate pressure (Moore)
E. Fraud (Edelman)
F. Once the judgment has been set aside, no-one but a lunatic would deny there is a duty to repay (Hedley)

3. Nobody has disputed that grounds A and F are accurate so far as they go, but there is no consensus whether either constitutes a proper ground for recovery in itself. Discussion of the other grounds has been muted, indeed barely perceptible.

4. No-one has yet mentioned Mistake/Ignorance, but this is presumably only a matter of time. After all, someone clever enough to find a "mistake" in the Kleinwort Benson case can surely find one here (or, indeed, anywhere). For that matter, the money was also paid under a "necessity", and there seems to have been an "absence of consideration". It might shorten the discussion if someone were to suggest some grounds that *can't* apply.

5. No-one has asked whether the multiplicity of possible grounds tells us something about the breadth and vacuity of the explanatory concepts, or whether it tells us that this is a freak instance of liability.

6. A number of cases have been cited. In only 2 of them is the proposition for which it was cited *both* relevant *and* actually present in the judgment (unless the view is taken that subrogation is relevant to this discussion, in which case the count is 3). No-one seems to be suggesting that the matter is concluded by authority. No-one has yet mentioned the Bricklayers' Hall case, which is a great deal more relevant than any of those which have been mentioned. But again, this is presumably just a matter of time.

Hoping that this is helpful,

Steve Hedley

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