Attorney General of Trinidad and Tobago v Trinsalvage Enterprises Ltd (Trinidad & Tobago)

A restitutionary quantum meruit for services and materials supplied under a contract void for lack of authority or because it was ultra vires is not automatically barred. The question is one of statutory interpretation: whether the statute expressly or impliedly ousts unjust enrichment because restitution would stultify its policy. The defendant bears that burden. Restitution is distinct from contractual enforcement. It reverses objective enrichment and ordinarily does not confer the benefit of a favourable bargain. Public procurement policies concerning value for money, transparency, minimising impropriety and favouritism, and deterring non-compliance were not stultified where recovery was limited to objective market value and no collusion was alleged.

The Government accepted Trinsalvage’s tender for harbour works. A purported contract was entered into by the Permanent Secretary, but the courts held that the Permanent Secretary lacked authority under the Central Tenders Board Act and Regulations. Trinsalvage completed the works and supplied additional materials, but substantial sums remained unpaid.

Seepersad J held that the contract was invalid but that Trinsalvage could recover a quantum meruit in unjust enrichment: CV No 2011-04593. The Court of Appeal dismissed the Attorney General’s appeal: Civil Appeal No P 009 of 2014. The central issue before the Board was whether allowing restitution would stultify the statutory procurement policy.

Majority

1. Disposition. Lord Burrows, with Lord Kitchin, Lord Hamblen and Lady Rose agreeing, dismissed the appeal. The contract was void for lack of authority and/or because it was ultra vires, but not for illegality.
2. Invalidity and unjust enrichment. Lack of authority, lack of power and illegality are distinct concepts. The Act’s implied effect, ascertained by ordinary statutory interpretation, made the purported contract void because the required CTB authority had not been obtained. A prima facie unjust enrichment claim requires enrichment, enrichment at the claimant’s expense, and an unjust factor. The defendant bears the burden of proving that a defence defeats that claim.
3. Stultification principle. Restitution is barred where, on the proper construction of the statute, it would contradict or circumvent an express provision or clear statutory intention. The restitutionary quantum meruit is not contractual enforcement by another route. It reverses enrichment and may produce a different, normally objective market-value, measure of recovery. It does not allow a claimant to reap the benefit of a favourable bargain.
4. Application. The Act pursued value for money, reduction of kickbacks and financial impropriety, transparency and fairness, and deterrence of non-compliance. An award measured by objective market value would not waste public money or preserve an advantageous bargain. The public tender process was visible, there was no evidence that Trinsalvage knew of the lack of authority or colluded with officials, and the voidness of the contract already provided a substantial deterrent. The common law of unjust enrichment had not been ousted.
5. Authorities and final matters. The majority distinguished H Young & Co v Mayor and Corpn of Royal Leamington Spa because it concerned a different statutory policy and a formal seal requirement. The Board did not decide whether that case would have been decided differently under the modern approach. The later procurement legislation did not affect this dispute because its repeal was non-retrospective.

Dissent

Lord Briggs agreed that restitution was distinct from contractual enforcement but would have allowed the appeal. In his view, the CTB’s independent and exclusive competence to choose the contractor was central to the statutory scheme. Conferring restitution on a contractor selected by the executive, including for additional work, would sanction a fundamental departure from that scheme and stultify the Act’s purposes, even without proof of actual favouritism or impropriety.

• Privy Council: [2023] UKPC 26 dismissed the appeal.
• Court of Appeal of the Republic of Trinidad and Tobago: in Civil Appeal No P 009 of 2014, dismissed the Attorney General’s appeal and upheld the unjust enrichment claim.
• High Court: Seepersad J, in CV No 2011-04593, held that the purported contract was invalid but that Trinsalvage had a valid quantum meruit claim.