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Lloyd's Maritime and Commercial Law Quarterly

A PATH THROUGH THE SUBROGATION JUNGLE: WHOSE RIGHT IS IT ANYWAY?

Theresa Villiers*

Refinancing transactions are one of the most common incidents of commercial life. The degree of uncertainty which surrounds the legal consequences of such transactions constitutes a weakness in our commercial law. At the heart of this uncertainty lies the doctrine of subrogation. The “tangled web”1 of case law on subrogation has been described as formidably confusing.2 For many years, subrogation has lurked somewhat uncertainly at the periphery of the law of restitution. Dr Charles Mitchell’s book on the subject3 did much to bring it into focus and position it in its rightful place as an important part of the law of unjust enrichment.4 The House of Lords recently had occasion to look afresh at subrogation in Banque Financière de la Cité v. Parc (Battersea) Ltd 5 (henceforth “BFC v. Parc”). This case provides important clarification on a number of fundamental points. This paper seeks to analyse the important issues raised by the case as well as to look at some of the related problems which have troubled the law of subrogation for so many years. The focus of the paper concerns one particular instance of subrogation, namely, where one party, S, loans another party, PL, the money to discharge a secured debt owed to a third party, RH.6 This is an example of what has become known as reviving subrogation,7 so called because the effect of the doctrine is to revive some or all of RH’s extinguished rights and vest them in S, giving him enforceable rights against PL and/or

* Barrister: Lecturer in Law, King’s College London. I owe a very considerable debt of gratitude to my colleague Dr Charles Mitchell for his help and advice with this paper. Many (or even most) of the ideas which this article contains were generated or refined through our useful discussions. In particular, I am very grateful for Dr Mitchell’s directing my attention to Armatage Motors Ltd v. Royal Trust Corpn of Canada (1995) 45 R.P.R. (2d) 204 (aff’d (1997) 149 D.L.R. (4th) 398) and Halifax Mortgage Services Ltd v. Muirhead (1997) 76 P.&C.R. 418 (C.A.). Thanks should also go to those attending the SPTL conference in September 1998 where this work was first presented to the Restitution Section. The discussion which took place at the conference has proved most useful in finalizing the contents of this article.
1. Gareth Jones (ed.). Goff and Jones on the Law of Restitution, 4th edn (London, 1993) (henceforth “Goff and Jones”), 593.
2. Martin v. Hickenlooper (1936) 59 P. 2d 1139, 1140 (Utah S.C., per Wolfe, J.).
3. Mitchell, The Law of Subrogation, (Oxford, 1994) (hereafter “Mitchell, Subrogation”).
4. See also A. S. Burrows, The Law of Restitution (London, 1993) (henceforth “Burrows”) 76–93; Birks, An Introduction to the Law of Restitution (Oxford 1985, revised edn 1989) (henceforth “Birks, Introduction”), 93–98, 372–375, 389–393; Maddaugh and McCamus, The Law of Restitution (Aurora, Ontario, 1990), 159–181; Goff and Jones, Chap. 31.
5. [1998] 2 W.L.R. 475 (H.L.); noted C. Mitchell [1998] Restitution Law Review 144.
6. English law has been notoriously reluctant to allow payment by a third party to discharge a debt owed by another: see Burrows, Chap. 7; Birks, Introduction, 185–202; and Mitchell, Subrogation, Chap. 12. In the cases under consideration in this paper, the original mortgagee has been paid directly by the debtor or at the debtor’s request. The debtor’s authorization of the payment means that the payment does, in fact, discharge his liability. General issues as to the discharge of debts by third party payment are not therefore discussed in this paper. (The position is slightly more complex in the co-ownership cases, as to which see further infra, Part 6: “Defences and post-payment events”).
7. The expression coined in Mitchell, Subrogation, Chap. 1.

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