As against the particular defendants concerned, the statement of claim sought relief under the following three heads: (1) a declaration that the shares transferred to the defendants were held by them on constructive trust for the plaintiffs; (2) such orders as were required for restoring the shares to the plaintiffs; and (3) enquiries as to compensation and/or damages for breach of constructive trust and/or conversion.

It is difficult to see how the first head of claim could be described as a claim in restitution. The equitable rights which the plaintiff originally had in the shares, and which they now sought to enforce against the defendants, arose through the creation of an express trust in their favour. It is a cardinal rule of the law of restitution that rights generated by consent are not restitutionary.2 For that reason, rights acquired under an express trust are never restitutionary, whether they are being enforced against the original party or against a third party. As Birks points out, “A right which persists through a transfer, where ‘persists’ really means what it says, that it existed before the event and survived after it, is not generated by unjust enrichment”.3 Nor is it easy to see how the second head disclosed a restitutionary claim, for it simply invoked the rule in Saunders v. Vautier 4 and called for the execution of the plaintiff’s non-restitutionary rights under the trust. And the third head of claim, for compensation for wrongdoing, fares no better, for