J S Bloor Ltd v Pavillion Developments Ltd

A restitutionary claim for an unrequested improvement to another’s land is subject to the distinct principles governing mistaken improvements to land. Relief is available only where the landowner’s conduct is unconscionable. The landowner’s unavoidable use of the improvement does not, without more, amount to free acceptance or unconscionable behaviour. An incontrovertible benefit must remain incontrovertible after considering both the advantages and disadvantages of the improvement. Where the claimant has not proved mistake, that failure may also weigh heavily against equitable relief.

The claimant developer constructed a road which, under its contract with the defendant developer, the defendant was required to construct. The claimant said that it had built the road by mistake and sought restitution for services rendered, relying on acceptance and incontrovertible benefit.

The defendant had not requested or agreed to pay for the work. It used the road after construction but contended that the work created significant disadvantages, including loss of control over design, cost, contracting arrangements and warranties. The court tried liability separately from quantum and considered whether the claimant had proved mistake, unconscionable conduct, acceptance and incontrovertible benefit.

1. Claim dismissed. The claimant failed to establish an entitlement to equitable restitution.
2. Improvements to land fall into a different category from other restitutionary claims for unsolicited services. Applying the approach discussed in Blue Haven Enterprises Ltd v Tully [2006] UKPC 17, relief for a mistaken improver requires unconscionable conduct by the landowner.
3. The defendant neither knew nor ought to have known that the road would be built, did not acquiesce in its construction and was not unconscionable. Its use of the completed road was practically unavoidable. That use therefore did not amount to acceptance of a benefit sufficient to justify equitable relief.
4. The claimant had not shown that the benefit to the defendant was incontrovertible. Although the defendant saved the cost of construction and obtained early use of the road, it lost the opportunity to design and procure the work, negotiate its price and terms, obtain contractual rights against the contractor and secure warranties. The disadvantages were significant.
5. The claimant also failed to prove that it had acted by mistake. It provided no direct evidence, its explanation changed, and it obtained some non-pecuniary benefits from early construction. It was unnecessary to decide this issue, but the failure would have weighed heavily against relief.
6. The defendant’s proposed set-off for removing spoil was rejected for want of sufficient evidence and because the claimant was not shown to be legally liable for the dumping. Quantum issues, including the extent to which the road exceeded the required standard, remained unresolved.