Utilising case law research both statistical and textual, and some general observations, this article explores the extent and nature of, and reasons for, the influence of academic writing on the law of unjust enrichment. It encourages a debate on the level of generality at which it is useful to analyse the principles; and it seeks to offer illustration and insight into how academic sources have been used in judgments in this field. The article concludes, inter alia, that the work and perspective of academics practising the doctrinal scholarship of traditional common law jurists is, and deserves to be, valued in judicial decision-making.

THE BRIEFThis article is based on a paper presented to the Commercial Court webinar on 20 June 2023, “Unjust Enrichment in the Commercial Court”. I am delighted, and honoured, to have been invited by Professor Rose to submit a version of that paper for publication. As I did at the webinar, I pay tribute to the research work of High Court Judicial Assistants Alice Horn and Serena Lee, which has been of invaluable assistance.1

For the webinar, I was asked by Foxton J—slightly provocatively—to examine why English judges do not make more use in their judgments of the academic writing in the field of unjust enrichment. That was, of course, a leading question, assuming (i) that there is a definable extent to which we the judges should be making use of the academic sources in this area, and (ii) that in fact we do so only to some lesser extent. It hinted that there might be a plaintive cry from at least some academics of “Why don’t you take more notice of us?”.

By anecdotal contrast, I have heard the complaint voiced by a senior judge or two that the unjust enrichment treatises are less easy to use, and less helpful, than (say) Benjamin’s Sale of Goods, Chitty on Contracts, or Clerk & Lindsell on Torts. They have seemed, so that complaint would have it, more occupied by an existential debate among themselves about unifying themes and overarching principles than by collecting, classifying and describing the case law in a way that will help to answer the case at hand.