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If I understand the facts correctly, Esprit Telecom v Fashion Gossip at bottom raises the question whether a claim of unjust enrichment will lie for arguably sharp commercial conduct that does come under the heading of any recognized wrong. I will be interested in learning how the English courts come out on this. The prospects for such a claim in America differ from state to state. My own state Texas, conservative in this as in so many other respects, has not recognized a general principle against unjust enrichment. Other states do say that the door is open to novel claims of unjust enrichment. For a strong statement to this effect see Jeff v. Stubbs, 970 P.2d 1234, 1244-46 (Utah 1998).

American law is muddled by categorical statements of principle that cannot be correct. For example, it has been said that restitution will lie only where the defendant has committed a wrong or abused a confidence. Davidson v. Davidson, 667 So.2d 616, 620-21 (Miss. 1995). While the court in Davidson reached the right decision on the facts of the case the stated principle would exclude from the law of unjust enrichment any claims predicated upon mistake where the beneficiary of the mistake himself committed no wrong and was not a confidant of the plaintiff. Such statements are symptomatic of the generally woeful state of knowledge in America about even the most basic principles of restitution or unjust enrichment.

Ninth District Production Credit Assoc. v. Ed Duggan, Inc., 821 P.2d 788 (Colo. 1991), is a good example of how American courts fumble with novel unjust enrichment claims where D by arguably sharp commercial practices profits at P's expense. Duggan supplied feed to a feedlot to which Assoc supplied credit. Assoc has a security interest in the lot's receivables. The Assoc enabled the lot to continue to operate though it was failing and the lot came to be deeply in arrears to Duggan for feed. When the lot folded Duggan sued Assoc for unjust enrichment. The trial court submitted Duggan's claim to the jury under a muddled general instruction asking at one point if it would be "inequitable" for Assoc to retain the benefit of the feed Duggan supplied without compensating him (other parts of the instruction suggest a theory of implied-in-fact contract). The prospect of novel claims of unjust enrichment being submitted to the jury under a general, negligence-like instruction is, to say the least, scary. The Colorado Supreme Court said it was a mistake to put the issue to the jury because a jury could not understand how the claim related to the law of secured credit. But the Court also rejected Assoc's argument that a claim for unjust enrichment ought never lie against a secured creditor by an unsecured creditor for enhancement of the value of the collateral. While the claim was novel, the Court concluded it would be meritorious if Assoc "initiated or encouraged the transaction." I guess this means that the secured creditor can stand by and allow an unsecured creditor to plow money into a losing venture to benefit its collateral but that it cannot take any affirmative steps. This seems to me a difficult line to draw for obvious reasons, but so be it.

Of course, the facts of ET v. FG are far afield from those in Duggan. Assuming the law is open to novel claims of unjust enrichment, such claims ought to be analyzed taking careful account of the most proximate bodies of law. In Duggan, that was the law of secured credit. In ET v. FG it is contract law, and, more precisely, the law on unilateral mistake/duty to disclose. I think the plaintiff's claim is weak if we look at this body of law -- as I read the facts the defendant took advantage of a flaw in the plaintiff's pricing structure. What makes the plaintiff's claim appealing is the sheer scale of the defendant's scheme. Analogies could also be drawn to the law of good faith in some American states. I won't speculate further along these lines because I do not have a sure grasp of the facts.

It would a kindness if some posted the address of the website where the decision is to be found.