Deutsche Morgan Grenfell v Inland Revenue Commissioners

AuthorRuth Forman
PositionLLB (Dub), LLM Candidate, University of Cambridge
Pages145-155
DEUTSCHE
MORGAN
GRENFELL
V
INLAND
REVENUE
COMMISSIONERS
RUTH
FORMAN*
Introduction
There
is
currently
a
lively debate
taking
place
regarding
the
intellectual
and
theoretical
foundations
of
the
law
of
restitution,
and
therefore the House
of
Lords
case
of
Deutsche
Morgan
Grenfell
v
Inland
Revenue
Commissioners
1
was
bound
to
provide
much
food
for
thought.
The
House
of
Lords
handed
down
its
decision
on
25
October
2006
and
did
not
disappoint.
The
case
is
important
for
a
number
of
reasons.
First,
it
provides
an
interesting
example
of
restitution being
awarded
for
an
unjust
enrichment
based
on
the
unjust
factor
of
mistake
of
law.
The
judgments
have
clarified
various
aspects
of
the
unjust
factor
of
mistake.
Secondly
and
importantly, the
case
gave the
Lords
the
opportunity
to
consider
the
debate
referred
to
above,
regarding
the
very
basis
of
the
law
of
unjust enrichment.
In
2003,
Peter
Birks
published "Unjust
Enrichment"
2
in
which
he
dramatically
stated
that
English
law
of
unjust enrichment
had
arrived
at
a
crossroads
and "compelled
to
rethink'
3
it
had chosen
a
new
direction.
Birks
claimed
the
law
had
changed
as
follows.
English
law
of
unjust
enrichment
had
always
required
there
to
be
an
"unjust
factor" present
in
each case,
along
with
other elements,
such
that
there
be
an
enrichment
of
the
defendant
and
that
this
enrichment
should
be
at
the
claimant's
expense.
Essentially,
the
unjust
factor
was
the
element
that
rendered
the
enrichment
unjust
in
the
eyes
of
the
law.
Examples
include mistake,
total
failure
of
consideration,
duress
etc.
However,
in
2003
Birks
claimed
that
based
on
various
cases
before the
English
courts
regarding
void contracts,
and
referred
to
as
the
swaps
litigation, English
law
had changed
its
approach
entirely
and
adopted
a
model closer
to
the
civilian
model,
and
known
as
*
LLB
(Dub),
LLM
Candidate,
University
of
Cambridge.
The
author would
like
to
thank
Dr.
Eoin
O'Dell
and
Harry
Ormsby
for
their
helpful comments
on
an
earlier draft
of
this article.
49; [2007]
All
ER
449.
Hereafter
referred
to
as
'the
DMG
case.'
2
Peter
Birks,
Unjust
Enrichment
(2nd
ed,
Oxford
University
Press,
2003).
3
Ibid,
at
101.
©
2007 Ruth
Forman
and
Dublin University
Law
Society

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