Din v Ahmed & Ors

A claim for repayment based on mistake, quasi-contract or unjust enrichment requires a proper allegation that the defendant received or enjoyed the benefit of the payment. A post-event promise to repay, unsupported by consideration, does not ordinarily establish a contractual cause of action. The court may refuse further amendment where the proposed pleading introduces a new case departing from the known facts, is not formally pursued, or would be statute-barred. Where the pleaded case discloses no viable cause of action, dismissal under Civil Procedure Rules Part 24 is appropriate.

The claimant had obtained judgment by default against the respondent in 1998. On the respondent’s application, His Honour Judge Moseley QC set that judgment aside, dismissed the claim under Civil Procedure Rules Part 24 and ordered the claimant to pay costs. The claim concerned £44,900 paid to solicitors acting for the respondent’s husband.

The claimant sought permission to appeal. During an adjournment he sent a further draft pleading which recast the payment as a loan to the respondent personally, but he made no formal application to amend despite an earlier direction. The central issues were whether the existing pleading disclosed a viable cause of action and whether the proposed late amendment should be considered.

Application for permission to appeal dismissed unanimously.

1. The court upheld the judge’s conclusion that the pleaded case disclosed no viable cause of action. The alleged mistake and unjust-enrichment claim did not plead or establish that the respondent had received or enjoyed the benefit of the money. The payment had been made to the husband’s solicitors and was used for the husband’s benefit.
2. The alternative case based on promises or assurances by the respondent was also defective. On the pleading and evidence, the promises were made after the payment and were unsupported by consideration. They therefore appeared to be gratuitous promises rather than enforceable contractual obligations.
3. The judge was entitled to refuse a further opportunity to amend. The proposed re-amended particulars did not cure the defects in the original claim, and any cause of action which might have been available was said to date from 1991 and therefore to be statute-barred. Dismissal under Civil Procedure Rules Part 24 was the correct procedural course once no good cause of action was disclosed.
4. The Court of Appeal would not determine the application on the basis of the claimant’s final draft. It represented a substantial departure from the case previously advanced and from the known facts, and the claimant had not made a formal application to maintain the amendment despite the court’s direction. The judge’s refusal to give a further chance to put the case in order was therefore upheld.

• Court of Appeal (Civil Division): dismissed the claimant’s application for permission to appeal from the order made by His Honour Judge Moseley QC at Cardiff District Registry on 10 January 2002.
• Cardiff District Registry: set aside the 1998 judgment by default, dismissed the claim under Civil Procedure Rules Part 24 and ordered the claimant to pay the respondent’s costs.