Failures for Consideration: Re‐Analysing Jurisdiction in Unjust Enrichment Claims

Published date01 September 2020
AuthorMatthew Hoyle
Date01 September 2020
Modern Law Review
DOI: 10.1111/1468-2230.12544
Failures for Consideration: Re-Analysing Jurisdiction
in Unjust Enrichment Claims
Matthew Hoyle
There has been little attempt to provide a full and coherent analysis of the rules governing
service of a claim form out of the jurisdiction in claims concer ning unjust enrichment. This
lacuna has grown more noticeable since the rules wererefor med in 2015, with the continuation
of an excessively wide approach that had overrun the older, overly restrictive rules. This article
attempts not only to provide such an analysis but also one which is ableto reconcile the wording
of the rules with their underlying principles and the substantive law of unjust enrichment
claims – significant constraints that have received insufficient consideration in both the case law
and the literature.
Though the substantive law that most now call unjust enrichment is not new,1
judicial treatment of it as a coherent subject is much more so.2Its relative
youth is reflected in the subject’s noticeable absence from important parts
of civil procedure3and English private international law. As Professor Briggs
recently noted, what the English choice of law rules for restitution and unjust
enrichment were ‘no judge could say and no-one else could ever explain’.4
However, it is not only with choice of law that these difficulties arise in a
private international law context. The common law rules governing service
out of the jurisdiction in unjust enrichment claims have also been relatively
under-explored in both the courts and the literature. Furthermore, the few
decisions that do exist did not have the chance to consider the provisions
Barrister, Lincoln’s Inn. I would like to thank Alex Georgiou, Chris Kruizinga and the two
anonymous reviewers for their comments on earlier drafts of this paper. Any errors of course remain
my own.
1Moses vMacferlan (1760) 97 ER 676. Even the concept itself has been in regular judicial use
(albeit with varying acceptance) since Fibrosa Spolka Akcyjna vFairbairn Lawson Combe Barbour
Ltd [1943] AC 32, 61 per Lord Wright.
2 Its definitive recognition over concepts such as ‘quasi’ or ‘implied’ contract coming only in
Lipkin Gorman vKarpnale [1991] 2 AC 548: see A. Burrows, The Law of Restitution (Oxford:
OUP, 3rd ed, 2011) 4.
3 For example, the Limitation Act 1980 makes no mention of unjust enrichment, as even that late
in the twentieth century it was thought that most such claims were ‘quasi’ or ‘implied’ contract
and so fell squarely under s 5: Kleinwort Benson Ltd vSandwell Borough Council [1994] 4 All ER
890, 942 per Hobhouse J.
4 A. Briggs, ‘Secession from the European Union and Private International law: the cloud with a
silver lining’ (Speech to COMBAR, 24 January2017) 12 at
ent/uploads/2020/02/Prof-Adrian-Briggs-QC-Brexit-lecture-24.1.17.pdf (last accessed 27
April 2020). This position has now changed due to the implementation of Rome II (detailed
C2020 The Author. The Modern Law Review C2020 The Modern Law Review Limited. (2020)83(5) MLR 1008–1029
Matthew Hoyle
in light of the dramatic and fundamental shifts that are now occurring in
domestic law.5These substantive changes matter even in a procedural context,
because the rules for service out depend almost exclusively on a claimant being
able to show that some particular facts constituting part (or sometimes all) of
the cause of action are connected to England and Wales. As Piggott stated it is
‘the principle of considering the nature of the cause of action which pervades
the whole subject [of service out]’.6A change in the nature of the underlying
cause of action can alter what facts must be shown to establish such a
This article seeks to show that the approach to these provisions adopted by
a number of judges at first instance has been flawed and that it ought to be
reconsidered by the appellate courts,7especially as the legal background upon
which they were enacted and previously interpreted has now considerably
changed. It proposes that a much stricter approach ought to be taken in terms
of which acts of the parties (in particular, potential defendants) are sufficient to
connect the claim to England. Finally, it advocates for the adoption of a more
sophisticated approach to establishing the location of an ‘enrichment’.
Due to considerations of space, along with the multiplicity of sometimes
fundamentally distinct unjust enrichment regimes which exist globally, this
article does not attempt to address the knotty question of the consequences of
a foreign law taking a different viewto English law on either the character isation
of the action or the location of jurisdictionally relevant acts. The approach here
adopts the general approach found in the cases discussed below, which is to
examine the questions of characterisation and location from the perspective of
English law.
The principles governing interpretation of the gateways
Rules 6.36 and 6.37 of the Civil Procedure Rules 1998 (CPR) require that a
party wishing to serve a claim form outside the jurisdiction must show:
(i) that his claim has a reasonable prospect of success;
(ii) that England is the proper place for the trial (the ‘forum conveniens’)
5Investment Trust Companies (in liquidation) vCommissioners for Her Majesty’s Revenue and Customs
[2017] UKSC 29, [2018] AC 275 (ITC); Prudential Assurance Company Ltd vCommissioners for
Her Majesty’s Revenue and Customs [2018] UKSC 39, [2019] AC 929 (Prudential); Skandinaviska
Enskilda Banken AB (Publ) vConway [2019] UKPC 36, [2019] 3 WLR 493 (SEK). cf H. Scott,
‘Change and continuity in the law of unjust enrichment’ [2019] Acta Juridica 469.
6 F. Piggott, Foreign Judgments and Jurisdiction Part III (London: Butterworths, 3rd ed, 1910) 238.
7 As no higher authority exists on these issues, judges (Huddersfield Police Authority vWat son [1947]
KB 842, 847) and masters (Coral Reef Ltd vSilverbond Enterprises Ltd [2016] EWHC 874 (Ch))
in the High Court remain free to depart from each other’s judgments. An appellate judgment
would, however, provide an opportunity for a more thorough reconsideration and would of
course also be binding on the High Court.
C2020 The Author. The Modern Law Review C2020 The Modern Law Review Limited.
(2020) 83(5) MLR 1008–1029 1009

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