UNJUST ENRICHMENT, PROPRIETARY SUBROGATION AND UNSATISFACTORY EXPLANATIONS

• Citation: (2016) 28 SAcLJ 955
• Author: Jessica PALMER LLB (Hons), BCom, LLM (University of Auckland), LLM (Cantab); Associate Professor, University of Otago, New Zealand.
• Published date: 01 December 2016
• Date: 01 December 2016

While contractual subrogation is understood as a function of agreement or common intention between the relevant parties to assign rights, justifying non-contractual subrogation has proved more difficult. The dominant view appears to be that subrogation arises as a response to what would otherwise be an unjust enrichment and for which a proprietary remedy is readily available. This article argues that non-contractual subrogation gives rise to a new proprietary right in the claimant which cannot be readily justified on the basis of unjust enrichment, nor is it simply the vindication of an existing property right. Instead, consideration of how equity normally recognises property rights shows that the intention or conscience of the defendant owner must be a crucial element of the analysis.

I. Introduction

1 Subrogation is a well-accepted doctrine of law that allows one party, C, to assume the rights of a third party as against another, D. C stands in the shoes of the third party and is “subrogated” to the rights of that third party. Such rights may be personal or proprietary, although commonly a claimant is seeking a proprietary remedy by means of the subrogation. There are two distinct categories of subrogation: contractual and non-contractual. Contractual subrogation concerns those situations where there has been a contractual assignment of the rights from the third party to C. For example, subrogation is normally stipulated in insurance contracts to enable the insurer to pursue any party who has caused loss to the insured.1 Non-contractual subrogation, on the other hand, concerns the imposition of subrogation in certain factual contexts, most commonly where C's money has been used to pay

off a creditor of D and that creditor has valuable security interests in D's property.

2 While contractual subrogation is understood as a function of agreement or common intention between the relevant parties to assign rights, providing a justification for non-contractual subrogation has proved more difficult.2 It is not necessarily self-evident that a person who has paid off another's debts should be entitled to assume the proprietary rights once held by the creditor and which are now discharged as between the creditor and his or her original debtor.3 In recent times, the explanation that appears to be most favoured by the UK Supreme Court4 and the House of Lords5 before it is that noncontractual subrogation arises as a response to what would otherwise be an unjust enrichment and for which a proprietary remedy is readily available. The latest decision of Bank of Cyprus UK Ltd v Menelaou6 (“Menelaou”) is particularly important because in that case the proprietary remedy of subrogation was applied to reverse unjust enrichment even though the claimant was not required to, and indeed some of the judges thought was unable to, establish a prior proprietary right in the property held by the defendant. The need for a proprietary link was all but ignored by the majority.

3 The broad and flexible approach being taken in the subrogation cases has significant ramifications for both the content of unjust enrichment and the availability of proprietary restitution more generally. This article is concerned with the second of these and whether proprietary subrogation can be readily justified. Given the importance of property and property rights to our western concept of society and individual autonomy, care must be taken to determine what justifies the recognition of the claimant's security interest. It will be my argument that unjust enrichment on its own is insufficient to justify proprietary restitution. Instead, a subsisting proprietary right must have been transferred from claimant to defendant and not extinguished, or a new proprietary interest must be independently justified. In subrogation cases, tracing an existing right is not straightforward and the more promising explanation is that a new right is created; one that can, but does not necessarily have to, mirror the secured creditor's old rights.

Understanding when and how equity normally recognises new proprietary rights can bring some clarification to this difficult area.

4 Many of the points I wish to make in this article are well illustrated by Menelaou so I begin with an overview of the facts and decision followed by a discussion of the nature and scope of noncontractual subrogation. After showing that the concept and language of subrogation are unhelpful in the cases that have come to be considered instances of non-contractual subrogation, I proceed to evaluate the different explanations that have been proffered for the proprietary remedy given.

II. Bank of Cyprus UK Ltd v Menelaou

5 Melissa Menelaou's parents owned a house, which shall be referred to here as House 1, against which the Bank of Cyprus, from whom they borrowed to fund its purchase, had charges. The parents decided to sell House 1 and buy a cheaper house (“House 2”). House 2 was purchased in the name of Melissa. She was to hold it on trust for herself and her siblings. Unbeknown to Melissa, it was agreed between the bank and her parents that in return for a release of the existing charges, part of the existing debt would be repaid from the sale proceeds and a new charge would be taken by the bank over House 2. The same solicitors acted for both Melissa's parents and the bank in administering the transaction. Some two years later, following financial difficulties, the family decided to sell House 2 and Melissa discovered the charge, purportedly signed by her. Melissa claimed the charge was void and should be removed. The bank counterclaimed that it was entitled to be subrogated to an unpaid vendor's lien over House 2 because Melissa had been unjustly enriched by receiving the house free of a valid charge that should have been properly registered.7 A vendor's lien is said to arise on the exchange of contracts between vendor and purchaser, even though the vendor still owns the house at the point, and is extinguished upon payment in full of the purchase price.

6 The charge against House 2 was held to be void. Lords Clarke and Neuberger gave judgments awarding subrogation on the basis of unjust enrichment, with which Lords Kerr and Wilson concurred. Lord Carnwath, on the other hand, did not view the unjust enrichment analysis as necessary or desirable, ruling instead that subrogation was the appropriate remedy on the basis of “a strict application of the traditional rules of subrogation”.8

7 There were several issues that arose for consideration in the unjust enrichment claim. What was the enrichment that Melissa received? Was it received at the expense of the bank? And what was the unjust factor grounding the right to restitution? The enrichment was identified variously as receipt of the freehold interest in House 2 and as the receipt of that freehold unencumbered by a charge.9 Melissa's enrichment must have been the absence of the charge. The second requirement, that the enrichment be received at the expense of the bank, was complicated by the fact that the bank had not directly transferred money for the purchase of House 2 to Melissa. However, although there was no direct transfer of value, Melissa's benefit nevertheless arose as a consequence of the bank's permission to release the charges on House 1 in exchange for a charge on House 2 that never materialised. This was accepted as giving rise to a sufficient causal nexus between the claimant's loss and the defendant's benefit.10 In addition, it did not matter that Melissa received the property a month before the bank released the charge over House 1 and thereby incurred loss. The arrangements were said to be part of one scheme or overall transaction so that the delay between receipt and loss was irrelevant.11 The chronological gap between the defendant's enrichment and the claimant's loss does, however, raise the question of when the cause of action in unjust enrichment crystallises. Although not significant to the facts of Menelaou, this has implications for the applicability of defences such as change of position.12

8 As for identification of the unjust factor, the judgments were, with great respect, somewhat inadequate. The unjustness of Melissa's enrichment seemed more to be declared than explained. Lord Neuberger emphasised that Melissa was a volunteer and not a purchaser so her lack of notice of the arrangement between the bank and her parents was not important,13 but this factor is surely relevant to any defences available to an unjust enrichment claim and not to the identification of the unjust factor. If otherwise, it suggests a presumption in favour of restitution where there has been an enrichment, without requiring a positive ground to justify its reversal. Lord Clarke, on the other hand, noted that subrogation usually arises in cases of mistake or

failure of consideration, appearing to accept that both were present on the facts of the case without any explicit analysis of their application.14 Failure of consideration is problematic as the unjust ground here because the basis for the bank's actions was not mutually shared by Melissa who had no knowledge of it. Mistake is more likely here: the bank was acting on the mistaken assumption that it would receive a valid security over Melissa's property, House 2.15

9 The majority having ruled that unjust enrichment was made out on the facts, the court held that the appropriate remedy was to subrogate the bank to a charge over House 2 by way of an unpaid vendor's lien. Subrogation in response to unjust enrichment had previously been recognised by the House of Lords in Banque Financière de la Cité v Parc (Battersea) Ltd16 (“Banque Financière”). There the claimant (“BFC”) had agreed to pay off part of the debt owed by Parc (Battersea) Ltd (“Parc”) to another bank (“RTB”). As part of the arrangement, the holding company of the group to which Parc belonged undertook to grant priority to BFC...