Justifying the law of restitution: a case study in the nature of judging

The law of restitution in England was first recognised by the House of Lords in 1990. It was firmly equated with the law of unjust enrichment building on the magisterial work published by Goff and Jones in 1966, The Law of Restitution. Since the formal recognition of a body of law called restitution which is founded on the reversal of the defendant’s unjust enrichment, the courts in England have struggled with the justification for and nature of a cause of action which is founded on unjust enrichment. This reached its nadir in the decision of the Supreme Court in Bank of Cyprus UK Ltd v Menelaou [2015]. In Australia, unjust enrichment is so tainted that the courts increasingly prefer to analyse liability with reference to unconscionability. In New Zealand unjust enrichment is much more secure. In analysing the law of restitution in England, Australia and New Zealand it is possible to secure a much clearer analysis of when gain-based remedies should be awarded to restore to the claimant what the claimant has lost. But the analysis of the law of restitution also reveals a great deal about the nature of judging in these different jurisdictions and, crucially, English judges have a great deal to learn from judges in the Antipodes.

Professor Graham Virgo is Professor of English Private Law in the Faculty of Law, University of Cambridge and has been a Fellow of Downing College since 1989, where he read Law as an undergraduate. He went on to read for the BCL at Oxford where he was awarded the Vinerian scholarship. He then read for the Bar. He was Senior Tutor at Downing College between 2003 and 2013, and has also served as Director of Studies in Law. He is a Bencher of Lincoln’s Inn and a door tenant at XXIV Old Buildings. He received a Pilkington Prize from the University of Cambridge for excellence in teaching in 2002 and was a finalist for the OUP Law Teacher of the Year in 2013.

He writes and researches in the fields of Criminal Law; Equity and trusts and the Law of Restitution. The third edition of his Principles of the Law of Restitution was published in 2015. In 2016 the second edition of his Principles of Equity and Trusts and the second edition of Equity and Trusts: Text, Cases and Materials, written with Paul Davies, will be published. He is a contributor to Simester and Sullivan’s Criminal Law: Theory and Doctrine, the sixth edition of which will be published in 2016. He is a contributor to Chitty on Contracts (32^nd ed, 2015) and co-author of Andrews, Clarke, Tettenborn and Virgo Contractual Duties: Performance, Breach, Termination and Remedies (2013, the second edition of which will be published in 2017). He has also written, with colleagues at Cambridge, What About Law? Studying Law at University (2^nd ed., 2011).

He became Pro-Vice-Chancellor for Education in October 2014. In that capacity he has oversight of all aspects of education policy and strategy for undergraduate, graduate and part-time students, as well as libraries and sport.

Full details on Professor Virgo's visit to New Zealand can be found on the Law Foundation website.

RSVP: lawevents-virgo.eventbrite.co.nz; CPD Compatible.