#6859 - Fitzalan V. Hibbert - Restitution of Unjust Enrichment BCL

Fitzalan v. Hibbert

Facts

The claimants, between whom it is unnecessary to distinguish, own property in Sheffield and in 2007/2008 were undertaking a development of land at Queen's Road. It was a retail development. Through their agent, Fowler Sandford, a firm of chartered surveyors, they employed Monaghans of Sheffield as quantity surveyors and project managers.

On September 26, 2006 Erinaceous Group Plc (Erinaceous) purchased the entire issued share capital of MHL… On March 30, 2007 Monaghans Ltd changed its name to Erinaceous Consulting Services Ltd, ECSL, but continued to trade as “Monaghans”.

On April 2, 2008 Mr Jeremy Robinson of Fowler Sandford wrote to Mr David Mewis, at the Duke of Norfolk's Estate Office in Arundel, West Sussex, enclosing an invoice and requesting payment.

On Monday April 7, 2008 Mr Mewis arranged for two payments to be made by way of BACS bank transfer. In accordance with Monaghans' invoice, he arranged for a payment of 3,084.38 to be made to the account indicated on the invoice. Then he arranged for this amount also to be transferred by BACS transfer to the account identified on Monaghans' invoice. This was a mistake. The amount was payable to T.G. Beighton Ltd, not to Monaghans.

At lunchtime on Friday April 11, 2008 the Bank of Scotland told the Chief Executive Officer of Erinaceous that it was withdrawing its support for the Group.

On Monday April 14, 2008 Mr Tucker and his partner Mr Richard Hill were appointed as joint administrator of a number of subsidiary companies within the Erinaceous Group including ECSL and MHL.

Immediately prior to the appointment of administrators the Bank of Scotland exercised rights of set-off which it enjoyed under a Working Capital Facility Agreement concluded with Erinaceous on July 26, 2006.

The Bank of Scotland had no knowledge of the mistaken payment made by the Duke. It was not notified thereof until it received Nabarro's letter of April 18, 2008 which asserted that the money was held on constructive trust for the Duke. The Bank of Scotland did not accept that the Duke enjoyed an equitable interest.

Holding

Whether the recipient of money paid under a mistake of fact holds the money on trust for the payee is currently unclear. In Chase Manhattan Bank NA v Israel-British Bank (London) Ltd [1981] Ch. 105 Ch D , Goulding J. held, at 120A, that he does. This was doubted, however, by Lord Browne-Wilkinson in Westdeutsche Landesbank Girozentrale v Islington LBC [1996] A.C. 669 HL. Goff and Jones comment, in The Law of Restitution , 7th edn, (2007) at para.4-038, that:

“It is not at all clear whether Chase Manhattan Bank will be followed. Although the payer paid under a mistake, nevertheless he did intend to pass both the legal and equitable title to the transferee and his mistake was not sufficiently fundamental to vitiate that intention. The fact that he knew or subsequently came to know of the mistake should not impugn this conclusion.”

The learned authors conclude however that they are persuaded “ ... that Goulding J was correct to hold in Chase Manhattan Bank that the payee was a constructive trustee of the money, if identifiable, paid under a mistake”.

This gives rise to the further difficulty of identifying the point of time at which such a trust would arise. If a constructive trust does arise, it can only be from the point at which the conscience of the recipient is affected—see per Lord Browne-Wilkinson in the Westdeutsche case at 715BC and per Goulding J. in Chase Manhattan Bank at 120H. The point at which conscience is...