Robin Evans-Jones, UNJUSTIFIED ENRICHMENT VOLUME 2: ENRICHMENT ACQUIRED IN ANY OTHER MANNEREdinburgh: W Green (www.sweetandmaxwell.co.uk/wgreen/), 2013. xxv + 201 pp. ISBN 978041408495. £150.

Published date01 January 2015
Pages147-150
Date01 January 2015
DOI10.3366/elr.2015.0260

With this book Robin Evans-Jones completes a two-volume project the first part of which appeared in 2003. While the claim that “this book is the first major systematic treatment of the Scottish law of unjustified enrichment” (para 1.01) overlooks the late Bill Stewart's Restitution (1992, with supplement 1995), it is probably fair to say that the latter work was premature and overly enthusiastic about the structure proposed for Scots as for English law by the also now sadly late Peter Birks in the mid-1980s. The model espoused instead by Professor Evans-Jones in his two volumes is that of German enrichment law. It, as shown by the scholarship of Evans-Jones himself and a number of others, most notably Professor Niall Whitty, provides a much better “fit” for and explanation of the Scottish material on the subject; while Birks himself famously renounced his initial approach in favour of one much closer to that found in Germany. In Scotland today, as Evans-Jones further remarks, it is “universally agreed” amongst legal writers that this is “the best way in which the subject should now be organised” (para 1.01); “[a] consensus has emerged that the causes of action of the law of unjustified enrichment as a whole are usefully grouped according to the manner in which the enrichment was acquired” (para 1.52). Thus an approach founded on the manner of enrichment (whether by way of deliberate transfer to or unauthorised imposition upon the enriched party, or by that party's interference with the rights of the other), plus the absence of a legally valid basis for retention of the enrichment by the defender (such as contract or gift), is to be seen in Martin Hogg's Obligations (2nd edn, 2006), the relevant chapter of the last two editions of Gloag & Henderson, and this reviewer's student introduction to the subject (which has so far appeared in four successive incarnations between 2003 and 2013). It will also be the scheme used in Niall Whitty's forthcoming exposition in a Stair Memorial Encyclopaedia reissue.

This consensus in the literature is not yet, however, reflected in the decisions of the courts, even though it was indeed the judges who in the 1990s overthrew the old world of the “three Rs” – repetition, restitution and recompense – in the three great cases of Morgan Guaranty Trust Co of New York v Lothian Regional Council 1995 SC 151, Shilliday v Smith 1998 SC 725, and Dollar Land (Cumbernauld) Ltd v CIN Properties Ltd 1998 SC (HL) 90. Relatively few enrichment cases since then have found their way to the upper levels of the Scottish court system, so the lack of authoritative judicial endorsement of the academic position is perhaps not surprising; but it makes life difficult for first instance judges and those arguing the law before them. It is...

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