… So, who is right? Is subrogation a remedy for unjust enrichment or not? This article argues that subrogation is not a remedy for unjust enrichment in the sense that is usually assumed, since it is not governed by the same rules as other remedies for unjust enrichment. In light of this, judges and scholars need to reconsider what the law of unjust enrichment is, and how it is unified.
To substantiate this argument, the article is structured as follows. Part II defines subrogation. Part III considers what judges and scholars mean when they say that subrogation is a remedy for unjust enrichment. It is generally assumed that there are two consequences of subrogation being a remedy for unjust enrichment: first, that a claim for subrogation raises the unjust enrichment questions; and secondly, that a claim for subrogation is governed by unjust enrichment’s rules. Parts IV and V show that the second consequence is not true. The recent Supreme Court decisions in Swynson and Investment Trust Companies show that subrogation is governed by different rules to other remedies for unjust enrichment. Part VI considers the implications for subrogation and unjust enrichment. Part VII concludes.
Rory Gregson, ‘Is subrogation a remedy for unjust enrichment?’ (2020) 136 Law Quarterly Review (July) 481.