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I'm not so sure about James's points here.

First, I'd stick by my view that the mistake is comparatively unimportant. Forget for a moment the allegation of billing for work not done, which is easy. As regards the rest, there was no suggestion that the work done by Anandh was any worse for the fact that he lacked registration: the authority got the work they paid for. Surely the mistake as to his qualifications is a rather collateral affair.

As to paying for a lawyer and getting the tea-boy, doesn't the morality of the situation depend on whether the client got the standard of service he paid for? With the tea-boy the chances are £10 to 1p that he wouldn't: in Fuglers and Anandh the argument seems to have proceeded on the basis that there wasn't much significant difference between the service paid for and the service received.

No doubt the Law Society would be much exercised about solicitors doing work through clerks: obviously James is right here. But I'm not sure that the fact that the law firm has been naughty should necessarily spill over into the law of restitution.

Is it so clear that change of position shouldn't apply here? If Anandh thought he was entitled to be paid despite a technical lack of registration, isn't he arguably in good faith? Why should a sin against the medical authorities necessarily defeat the defence? Especially since we can reach the same result through requiring counter-restitution. If the authority can get back what it paid Anandh, why can't Anandh, who presumptively didn't perform any worse than a registered practitioner, insist on being paid for the work he did? Circuity of action.

Best

Andrew

Date: Thu, 29 Jan 2004 14:20:25 -0000
Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues
From: James Watthey
Subject: [RDG:] Barnet v Anandh

Apologies for that annoying "recall" email. Lionel has now explained to me what I did wrong, so hopefully this will now get through...

Commercially speaking, this is not really a "piddling mistake", is it? Taking Andrew's points in turn:

1. In both this case and in the unqualified lawyer example, the customer is not only getting an inferior service giving rise to a set-off (more important in practice than a mere counterclaim: see e.g CPR Pt 24.2 and the notes thereto) but something fundamentally different to that bargained for.

Andrew's example as he explains it would also be a breach of the solicitor's conduct rules and, by the sound of it, could involve the firm rendering fraudulent bills; a claim in UE would therefore be the least of the responsible Partner's worries! Can anyone think of a logical reason why the client, who engaged, bargained for and was charged for the services of a solicitor but given the services of a tea-boy, should not get his money back subject to counter-restitution?

2. How could the Defendant possibly claim to have changed his position in good faith?