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In his summary of the discussion so far Prof. Hedley commented as follows:

"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."

I take these comments to be a criticism of the concept of Unjust Enrichment as framed in England and therefore, in Prof. Hedley's opinion, a criticism of the concept of unjust enrichment in general.

Perhaps it is worth noting that there are other ways to frame a cause of action in unjust enrichment that is not dependent on the overly technical English concept of unjust factors. For example, in Canadian private law (common and civil) the cause of action in unjust enrichment requires:

1) An Enrichment;
2) Corresponding Deprivation; &
3) Lack of juridical reason for the deprivation (a juridical reason being a contract, a gift, or a judgment).

Using the Canadian formulation, once the judgment has been set aside on procedural grounds, the money must be returned by Lord Archer since the Newspaper did not intend to give the money through a contract or as a gift and there is no judgment justifying retention. Perhaps a formulation such as this would place the concept of unjust enrichment in a better light with Prof. Hedley by removing the quest for various equally plausible, yet redundant, unjust factors and explain why a "self-evident" return was justified on some legal principle beyond fairness or equity.

As a side-note, I would also be interested in hearing from those in the discussion group why this Canadian formulation of the cause of action in unjust enrichment is "conceptually" inferior to that being offered in England (i.e. an argument better than: X case taught us ... or Lord X instructs that ... because in this area of law, without academic writing and conceptual theorizing, English cases might still be denying that the concept of unjust enrichment even existed).

Jason W. Neyers
Law Clerk, Ontario Court Of Appeal
(416) 327-5107