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Dear Charles:

In regard to 2a: I guess I don't accept the legal fiction part of it, the judges are for the most part stating what they think the law always demanded based on what the other rules already say or what constitutional documents already say (including EU law). I agree with Peter Watts when he said: "It amazes me how readily modern appellate judges think they change the law". It only seems fictional when you apply subjective concepts of mistake which are dependent on non-legal facts like common understandings at points in time.

In regard to 2b: I think that there was a juristic reason/basis for the enrichment so side with Lord Scott. If there is to be recovery it is on the basis that the state committed a legal wrong of some sort (i.e. acted unconstitutionally in a wide sense). That is why I said that unjust enrichment is smaller but tighter.

Cheers,

Charles Mitchell wrote:

Dear Jason

I'm not sure I think that absence of basis reasoning would allow us to avoid either of the difficulties I describe under headings 2a and 2b. So far as 2a is concerned, where C pays correctly believing that a rule of law requires him to do so, and the rule is subsequently overturned by judicial decision, would we not still be faced with the question whether the basis for C's payment should be deemed by application of a legal fiction not to have existed at the time when the payment was made? And so far as 2b is concerned, would we not still be faced with the problem that the payment made by DMG was due under a valid statutory section?