Rowe, R (on the application of) v Vale of White Horse District Council

A restitutionary claim for supplied services requires enrichment, enrichment at the claimant’s expense, an unjust factor, and no applicable defence. Receipt of an incontrovertible benefit may satisfy the enrichment-at-the-claimant’s-expense requirement, but it does not itself establish unjust enrichment. Free acceptance requires acquiescence in the supply on the understanding that payment is expected. Where the supplier’s conduct reasonably creates and maintains the recipient’s belief that no further payment is due, the recipient cannot be treated as having freely accepted the services for consideration. The absence of a change-of-position defence does not cure the claimant’s failure to establish an unjust factor.

The claimant owned a property formerly belonging to the defendant local authority. The authority provided sewerage services from 1988 to 2001 but made no separate charge, entered into no contract, and gave no indication that payment would later be sought. In March 2001 it demanded retrospective charges for the preceding six years.

The proceedings began as a judicial review of the authority’s decision. With the parties’ agreement, the court treated them as the trial of the private-law issue whether restitution could be recovered for services supplied without contract in circumstances where the recipient reasonably believed that no additional liability existed.

1. Claim dismissed in substance. The council had no legal right to recover the arrears claimed for the period from 1 April 1995 to 31 March 2001.
2. A restitutionary claim requires four ingredients: a benefit gained by the defendant, that benefit obtained at the claimant’s expense, a factor making retention legally unjust, and no defence extinguishing or reducing liability.
3. The claimant established enrichment and enrichment at the council’s expense. Although free acceptance may deem the second ingredient satisfied, that principle requires acquiescence in the supply of services for consideration. An incontrovertible benefit may also suffice for that ingredient in exceptional circumstances.
4. The decisive issue was the unjust factor. Free acceptance can establish that factor where a reasonable recipient should have known that the supplier expected payment and had a reasonable opportunity to reject the services. That condition was not met here. The council’s prolonged silence and deliberate policy had reasonably created and maintained the belief that no separate payment was due. There was therefore no acquiescence in supply for consideration, no free acceptance, and no unjust factor.
5. The absence of a change-of-position defence was immaterial. The claimant must establish the factor making retention unjust; the defendant need not prove, by way of defence, that imposing liability would itself be unjust.
6. The council’s failure to act transparently forfeited its right to recover arrears. The agreed order was made, with no further order as to costs.