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Without wishing to prolong the debate, I have two questions for the main protagonists:

1. For Steve Hedley: I agree that the obvious conclusion is that, if Mr Archer's judgment is set aside, he must repay the money. A Judge might not think it necessary to analyse this before making an order. But such order must have a legal basis. If one asks why money that has been paid under a judgment that has now been set aside should be returned, the layman's answer may well be either that it was improperly obtained or that it would be improper to retain it. But which? If the latter, why cannot this be categorised with other cases in which benefits conferred (or their value) must be returned so that similar treatment can be ensured in analogous cases? Is your instinctive objection to the concept of "unjust enrichment" and the recognition that certain enrichments must be returned or to the desire of "restitution enthusiasts" to break each case (however obvious) into the 3 (4 including defences) stage analysis that has now become familiar (even in the case law).

2. For Jonathon Moore, may I ask why you have deserted the prefix "illegitimate" before "compulsion"? For me, this is a word whose meaning and content can only be derived from the authorities, which distinguish between forms of compulsion (or pressure) that the law regards as acceptable (e.g. most threats to sue) and forms of compulsion that the law regards as unacceptable (e.g. gun to head) giving rise to legal consequences including the obligation to restore benefits conferred under the compulsion. To say that the reason for ordering Mr Archer to restore the money is "compulsion" would seem to tell only half the story - it begs the question as to where the line must be drawn - the term "illegitimate" at least emphasises that there is a line to be drawn but does not (on its own) tell us where to place it.

Andrew

Andrew Dickinson
International Law Group
Clifford Chance
200 Aldersgate Street
London EC1A 4JJ

Tel: 0171 282 7606
Fax: 0171 600 5555

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