Lloyd's Maritime and Commercial Law Quarterly
UNJUST ENRICHMENT MEETS NORWICH PHARMACAL
Mat Campbell *
Santander v Royal Bank of Scotland
Santander v National Westminster Bank
“[B]y comparison with other branches of the law of obligations”, unjust enrichment is “a relatively new and undeveloped area of the law”.1 That said, books on the subject reassure of the progress in recent years of both authority and academic writings.2 Notably, the interaction of unjust enrichment with other areas of substantive law is well studied.3 The cases discussed here provide useful examples of the impact of civil procedure on unjust enrichment claims,4 something less frequently noticed, but no less important.
Unjust enrichment: a wrong?
In Santander UK Plc v The Royal Bank of Scotland Plc (“RBS”),5 Santander mistakenly paid monies into accounts at three other banks. Variously, payments were made: twice; after cancellation by Santander’s customer; into the wrong account; and after a customer had died. The recipient account holders did not return the sums paid over or consent to the banks’ passing their identities to Santander to resolve the matter; generally, account holders are unaware of, and unable to react to, such situations.6 (And in this case the same appears to have been true of Santander’s own customers.7) So, although Santander knew the account details of the third parties, it had no further information and thought it could do no more without it.
Santander applied for the disclosure of details about the recipients of the mistaken payments from their banks under the jurisdiction recognised in Norwich Pharmacal Co v Customs and Excise Commissioners,8 where Lord Reid said:
“[I]f through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrongdoing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers.”
1. Investment Trust Companies v HMRC [2015] EWCA Civ 82; [2015] STC 1280, [46] (Patten LJ, for Moore-Bick, Patten and Beatson LJJ).
2. Eg C Mitchell, P Mitchell and S Watterson, Goff & Jones: The Law of Unjust Enrichment, 8th edn (Sweet & Maxwell, London, 2011) (hereafter “Goff & Jones”), [v–vi], ch.1.
3. See, eg, T Baloch, Unjust Enrichment and Contract (Hart, Oxford, 2009).
4. The designation in this note of Norwich Pharmacal relief as procedural in nature simply distinguishes it from the rules of law governing the rights that it is designed to help vindicate; it does not suggest that it is somehow ancillary or dependent on other proceedings, present or future. See Towergate Underwriting Group Ltd v
Albaco Insurance Brokers Ltd [2015] EWHC 2874 (Ch), [24–25] (Master Matthews).
5. [2015] EWHC 2560 (Ch) (Master Matthews).
6. Ibid, [10].
7. Ibid, [21]: no evidence was led about (i) their potential contractual duty to help Santander; (ii) whether any of them could have supplied details of the intended recipients of any payments; or (iii) whether they had been asked that question.
8. [1974] AC 133 (HL), 175; Rugby Football Union v Consolidated Information Services Ltd [2012] UKSC 55; [2012] 1 WLR 3333, [14] (Lord Kerr, for Lord Phillips, Lady Hale, Lords Kerr, Clarke and Reed).
CASE AND COMMENT
43