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If your business gets into commercial disputes, such as with a new contract, you need to find a method of commercial dispute resolution to try to resolve it. This could be through potential claims in a commercial court through the legal system and even to appeal. If, in commercial disputes, an unjust enrichment has occurred at the claimant’s expense, the claimant may raise a restitution as a remedy for the unjust factor that arises. If you are the defendant or claimant, you need to know the bars and defence for a restitution claim for an unjust enrichment claim.
As a claimant, this will help you decide at the start of any claim whether it is a remedy you may consider. As a defendant in the claim, you may be able to raise a defence when a remedy of restitution is suggested. Therefore, this article will explain the bars and defence opportunities for restitution in commercial cases.
What is Restitution?
Usually, a commercial dispute with another business, such as a contractual dispute, may go to commercial litigation in court. If so, the company that loses often pays compensation damages to the other party. However, as a general rule, this is not the only remedy for a commercial dispute, as there are also restitutionary remedies.
There are three main situations where a restitutionary remedy may be suitable in commercial litigation in English courts. These include where a:
- defendant is unjustly enriched from the claimant or through an act of the latter;
- third party benefits the defendant, yet this should be accounted to the claimant; or
- defendant did something wrong, and this meant they benefited.
The court must establish further criteria to enable a restitutionary remedy for unjust enrichment.
What Are the Bars and Defences for Restitution in Commercial Cases?
If you are in a commercial case, it may be possible to raise bars or defence to a restitutionary claim. Therefore, it is essential to understand what these are.
What Are the Bars for Restitution In Commercial Cases?
Bars to restitutionary claims mean that restitutionary remedy is barred, and a party cannot obtain it. An example of this is where public policy does not allow it. There are many bars for restitution under English law, and some focus on the defendant, such as where:
- the defendant received the benefit as a valid gift;
- the defendant received the benefit as a result of a common law or statutory obligation;
- the defendant received the benefit due to an equitable obligation;
- the defendant received the benefit as part of an honest claim through either compromise or settlement;
- it is not possible to restore the defendant to how they were prior to receiving the benefit, such as sometimes when money needs to be recovered; and
- the defendant is a bona fide purchaser.
There are also times when you need to consider the claimant’s position as a bar to restitution. These include where:
- it is not possible to restore the claimant to the position they were initially in;
- the claimant volunteered the benefit or behaved in an officious way; and
- the claimant gains the benefit by carrying out an obligation they owe to a third party.
What Are the Relevant Defences In Commercial Cases?
The defences for restitution in commercial cases are something a defendant may want to raise. A common defence for a restitutionary remedy is a change of position. This means that as the defendant, your position has changed so that for you to carry out a restitution remedy for the claimant is unfair and unjust in the overall circumstances.
This guide outlines how to resolve commercial disputes.
An example of a change of position could be where you, as the defendant, receive goods from the client through someone who stole them. Unaware of this, you give the goods you do not need to a charity. This would mean you are in a change of position, meaning it is not fair or just for you to return these goods to the claimant.
Other defences to a restitution remedy include:
- exclusion, so where you and the claimant agree before the litigation that restitution will not be a remedy; and
- where counter-restitution is not possible, meaning the claimant cannot first give the defendant back anything they received from them.
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Key Takeaways
A restitution remedy may be appropriate if you are part of commercial litigation. This includes where unjust enrichment has occurred and where the defendant benefits at the claimant’s expense. A restitutionary remedy aims to restore the benefit to the defendant. There are specific situations when a restitution remedy may be appropriate, and criteria must be satisfied. However, there are bars to restitution, so a claimant should check these first. For example, where the defendant was enriched due to a genuine gift. There are also defences to a restitution claim for the defendant. A common one is a change of position.
If you need help understanding what the bars and defence opportunities are for restitution in commercial cases in the UK, LegalVision’s experienced disputes and litigation solicitors can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. So call us today on 0808 196 8584 or visit our membership page.
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