Pilkington and Winterton, ‘Void contracts, counter-restitution, and change of position’

“When will a claimant’s entitlement to restitution to reverse an ‘unjust enrichment’ depend upon making counter-restitution of benefits received from the defendant? To what extent does a claimant’s change of position defence to the defendant’s restitutionary counterclaim have an impact upon that claimant’s liability to make counter-restitution? Both questions arose in School Facility Management Ltd v Christ the King College [2021] EWCA Civ 1053 (SFM). Giving the leading judgment, Popplewell LJ (with whom Dingemans LJ and Nicola Davies LJ agreed) held (at [83]) that a claimant is liable to make counter-restitution of benefits that justice dictates are ‘sufficiently closely connected’ to the benefits sought to be recovered, but did not express a concluded opinion regarding the relationship between this ‘counter-restitution principle’ (see [at 27]) and the change of position defence …”

Timothy Pilkington and David Winterton, ‘Void contracts, counter-restitution, and change of position’ (2022) 138 Law Quarterly Review (Jan) 21-26.

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