Article summary
Dispute Resolution analysis: Mr Justice Simon adopted the ‘wider formulation’ of the change of position defence to a claim in restitution where the claimant sought return of monies paid under mistake. The defence is not limited to the narrower interpretation that requires strict reliance by the defendant on having received the payment before acting. Therefore, it is sufficient for the change of position defence to be available, that the defendant has been disenriched (following its enrichment) provided such ‘disenrichment’ has sufficient causal link to the benefit and did not come about in bad faith. The judgment also provides illustration of the application of the accepted principles on the implication of terms and ‘commercial good sense’ (where more than one construction of a disputed term is possible).
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