HEARING DATE 14 September 1984
Education - Students' fees - Overseas students - Cypriot resident in England for education purposes only - Acceptance by college as overseas student not "ordinarily resident" in E.E.C. - Subsequent court ruling that "ordinarily resident" includes residence for education purposes only - Whether student entitled to rebate of difference between overseas students' rate paid and home students' rate Discrimination, Race - Racial group - Non-E.E.C. nationals - College charging higher fees for non-residents of E.E.C. for reasons of economy - Whether policy "justifiable irrespective of... national origins" - Whether student able to recover overpayment of fees - Race Relations Act 1976 (c. 74), ss. 1(1)(b), 17, 57(3), 72
COUNSEL
MJ Beloff QC and JH Beale for the Appellant;
AFB Scrivener QC & HC Hallett
PANEL: Griffiths and May LJJ
JUDGMENT BY GRIFFITHS LJ
This is an appeal by the plaintiff from the judgment of His Honour Judge McDonnell given on 13th June 1984 whereby he dismissed the plaintiff's claims in two actions against Queen Mary College.
The claims raised the question whether the plaintiff, who is of Greek nationality and a native of Cyprus, was liable to pay fees to Queen Mary College at the rate appropriate to an Overseas student or a Home student for a three-year course in Mechanical Engineering commencing in October 1982. The judge held that the plaintiff was liable to pay fees as an Overseas student, namely £3,600 for the 1982/1983 session; the Home student rate was the very much smaller sum of £480.
I gratefully adopt and incorporate as a part of this judgment the first seven pages of the learned judge's judgment which contain, as an introduction to the issues arising in this case, a lucid exposition of the post war development of the funding of university education in this country, and which also sets out the issues arising in the litigation and the factual admissions of the parties.
Against this background I turn to the first issue raised in the appeal: what was the contractual term entered into between the parties in 1982 relating to the payment of fees? Both counsel agree that the relationship between Mr Orphanos and Queen Mary College was contractual, but it was not, to a lawyer's mind, a tidy contractual situation and there is certainly no one document in which the contract is contained. The relationship between the parties was built up step by step, starting with Mr Orphanos' application for a place at a University through UCCA in October, and culminating when he enrolled at Queen Mary College in October 1982.
In his application to UCCA for a University place in October 1982 Mr Orphanos gave as his first choice a course in Mechanical Engineering at Queen Mary College. In the box provided on the UCCA form to indicate residential category he put a "B", intending to indicate that he considered his ordinary residence was in the UK. This was an optimistic assessment of his residential category on the information then available to Mr Orphanos. Opposite the box on the form appeared the words:
"All candidates should write their residential category in this box, See Appendix III in 1982 UCCA Handbook".
The relevant part of Appendix III reads as follows:
"Definition of residential category.The points below are to help you to select your UCCA residential category for insertion in section 1 of the UCCA application form.
The table opposite gives the definitions of the four UCCA residential categories. Enter the appropriate residential category in the box on the application form and if asked the date you started living in or left the UK or EC. Please give the first residential category from the table which applies to you.
Definitions
For UCCA purposes you are 'ordinarily resident' in the UK or EC if you live there for all ordinary purposes of living and not only for a specific or limited purpose such as studying. If you normally live in the UK (or EC) but are temporarily living elsewhere, for example doing voluntary work overseas or because your parents are living abroad on a temporary tour of duty, you should regard yourself for UCCA purposes as ordinarily resident in the UK (or EC)."
As Mr Orphanos had only been living in this country for the purpose of studying for his A levels, this information can have given him little encouragement to think that he would be accepted by Queen Mary College as a Home student. However, it is common ground that UCCA acts only as a broker between the students and the educational establishments, and UCCA's views do not bind the universities and colleges. The UCCA handbook is not a contractual document, but it does form part of the matrix from which the contract evolved.
Queen Mary College considered Mr Orphanos' application and made him an offer of a place to read Mechanical Engineering in October 1982 conditional upon his obtaining three Grade C passes at A level. At the time they made this offer, Queen Mary College classified Mr Orphanos as an Overseas student, as appears from their stamp on his UCCA forms. However, this classification was not communicated to Mr Orphanos at that time. The offer of a conditional place was sent to Mr Orphanos through UCCA and through UCCA he accepted it.
On 3rd March 1982 Queen Mary College wrote for the first time to Mr Orphanos, and this was the first occasion upon which there was any direct reference to the fees that Mr Orphanos would have to pay for the course. This letter and its enclosures made it clear beyond doubt to Mr Orphanos that Queen Mary College classified him as an Overseas student and would charge him a fee of £3,600 for the course. However, they also offered Mr Orphanos the opportunity of making representations if he felt he should be classified as a Home student.
The first paragraph of the letter of 3rd March 1982 reads as follows:
"We were pleased to learn through the UCCA that you have decided to give a firm acceptance of our offer of a place on the above-named course. From the information available to me, it appears that you are an Overseas student and your attention is particularly drawn to the enclosed information for Overseas students."
Although the letter speaks of a firm acceptance of an offer, at this stage of the relationship neither party was bound to the other because, as yet, the vital question of fees had not been settled between them. If Mr Orphanos had accepted the offer of a place in the belief that he would be classified as a Home student, he could not have been held to that acceptance if his classification turned out to be an Overseas student with fees that he could not afford. It was conceded by Queen Mary College that Mr Orphanos was not irrevocably contractually bound until he enrolled for the first session in October 1982. The letter contained a number of enclosures showing the fees charged to Overseas and Home students and the criteria applied by Queen Mary College in classifying a student between these two categories.
The two enclosures that are directly relevant read as follows:
"Dear Sir/Madam,OVERSEAS STUDENTS' FEES
To be classified as a 'home' student and therefore to be eligible to pay fees at the home student rate, you must show that you have been ordinarily resident in the area comprising the European Community for at least three years immediately preceding 1 September 1982. The area comprising the European Community is:
The United Kingdom, the Channel Islands, the Isle of Man and Gibraltar
Belgium
Denmark (including Greenland)
The Federal Republic of Germany
France (including overseas departments of Guadaloupe, Martinique, French Guiana, Reunion, St Pierre and Niquelon) Andorra and Monaco
Greece
The Republic of Ireland
Italy and San Marino
Luxembourg
The NetherlandsIn your case we have not been able to establish that you will have been ordinarily resident in the area of the European Community for the three years immediately preceding 1 September 1982. If you join this College in October 1982 you will therefore be classed as an overseas student and will be liable to pay fees at the overseas rate.
The note overleaf attempts to give some guidance on what does and what does not, constitute ordinary residence. If you feel that you have a case for being classified as a 'home' student do not hesitate to write and tell us and we will consider what you have to say."
ORDINARY RESIDENCE - NOTES FOR GUIDANCE
Please understand that these notes are for your guidance only and do not provide authoritative definitions. Each case will be considered on its merits.
1. A student is likely to be regarded as being ordinarily resident if he or she can show that he/she has a right to remain in this country, or in any other country within the European Community area, without restriction on stay. (To be classified as a 'home' student for fees purposes he or she must have had this right for at least three years prior to 1 September 1982.)
2. Living in this country or another country in the area of the European Community solely for the purposes of education and without the right to permanent stay does not constitute ordinary residence.
3. A student may be considered as ordinarily resident if it can be shown that he/she would have actually been resident were it not for the fact that a parent or the student was employed for the time being abroad. The student would have to show however that he/she had the right of permanent stay in the area of the European Community.
4. Home student status will normally be conferred on those who are
(a) children of immigrant workers from European Community countries,
(b) UN Convention refugees,
(c) attending courses on fully reciprocal exchange schemes.5. If a student can show that an award will be made by a local education authority in England or Wales, or by the appropriate education authority in Scotland and Northern Ireland, or by one of the Research Councils in this country or by the Department of Education and Science, then the student will be treated as a home student."
Mr Orphanos made representations to Queen Mary College suggesting he should be classified as a Home student, but the college refused to change his classificiation and in October 1982 he enrolled and paid the fees appropriate to an Overseas student. At the date of his enrolment Mr Orphanos knew that the College were only prepared to offer him a place if he paid the fees as an Overseas student. He chose to accept that offer and to pay those fees.
It is now submitted on his behalf that the contract on its true construction entitled Mr Orphanos to pay fees at the Home student rate if he had been ordinarily resident in the United Kingdom for three years immediately preceding 1st September 1982, and that ordinary residence must in this contract receive the same construction as was given to the words in R v Barnet LBC Ex parte Shah [1983] 2 AC 309, [1983] 1 All ER 226, in which the House of Lords construed ordinary residence in a statutory context as including residence for purely educational purposes. I cannot accept this submission. In my view, the enclosures to which I have referred made clear that "ordinary residence" in this contract did not include residence for purely educational purposes and, furthermore, that the college retained the discretion to decide for themselves in which category a student was to be classified. If the student did not like the category in which he was classified, he was not obliged to accept the offer of a place but, if he decided to accept the place knowing of his classification as an Overseas student, he was contractually bound to pay the appropriate fee. I therefore agree with the learned judge that under the contract Mr Orphanos is obliged to pay fees at the rate appropriate to an Overseas student.
I turn now to the argument based upon the Race Relations Act 1976. It is submitted on behalf of Mr Orphanos that, if he was contractually bound to pay the higher fees, Queen Mary College had indirectly discriminated against him on racial grounds. Indirect racial discrimination is defined by section 1(1)(b) which provides:
"1. (1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if - (a)... (b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but -(i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and
(ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and
(iii) which is to the detriment of that other because he cannot comply with it."
Queen Mary College concede that, by imposing a test of three years ordinary residence as a qualification for paying the lower fees, they fall within section 1(1)(b)(i) and (iii). I find the wording of (b)(i) difficult to apply and I admit to private doubts as to the correctness of the concession; however, I will proceed upon the assumption that it was correctly made. The college rely upon (1)(b)(ii) and say that their fees policy was justifiable and was adopted irrespective of racial grounds, and that they are, therefore, not guilty of racial discrimination against Mr Orphanos.
The justification for their policy is set out in lengthy particulars of the pleading. They may be summarised as economic justification on the basis that there is not sufficient money available to subsidise all the students for whom the college has places and that it is, therefore, a sensible and fair policy to give preference to those who have made this country their home, and that, in adopting this policy, the college were following guide lines laid down by the Government.
In this appeal Mr Beloff conceded that such a policy was fair and sensible and thus "justifiable" within the meaning of the Act, but he submitted that it was not adopted "irrespective" of national origins, because the very purpose of the policy was to discriminate against "foreigners" by making them pay more and thus was not "irrespective" of the national origins of students.
In Mandla v Dowell Lee [1983] 2 AC 548, [1983] 2 WLR 620, Lord Fraser considered the meaning of "irrespective" in this subsection and defined it as "without regard to".
In my opinion, the college has adopted and applied this policy irrespective of colour, race, nationality or ethnic or national origins, ie without regard to "racial grounds". The college is prepared to receive and educate students of every colour, creed and race but, put in its simplest terms, it can only afford to subsidise those who live here. If you live here then, irrespective of your colour, race, nationality or ethnic or national origins, you will be subsidised; if you do not live here, then, equally irrespective of your colour, race, nationality or ethnic or national origins, you will not be subsidised. The policy would be applied equally to the English boy whose home was in Geneva as it would to the Greek boy whose home was in Cyprus; neither would qualify for subsidised fees.
The result of the policy is, of course, to discriminate against Mr Orphanos, but it does so not because he is a Greek Cypriot but because England is not his home. There are justifiable grounds for the policy and it was, in my view, adopted "irrespective" or "without regard to" the fact that Mr Orphanos is a Greek Cypriot. I, therefore, agree with the judge that Queen Mary College have not indirectly discriminated against Mr Orphanos.
I appreciate the force of the argument based upon the wording of section 41(2) of the Act, but I accept Mr Scrivener's argument that the real purpose of section 41(2) was to protect educational establishments amongst others from the type of litigation with which we are now concerned if they act under approved arrangements. The bitter paradox of this case is, of course, that, until the decision of the House of Lords in R v Barnet LBC ex parte Shah [1983] 2 AC 309, [1983] 1 All ER 226, Queen Mary College had every right to believe that they were so protected.
I admit that I have not found this at all an easy question to resolve, but I prefer a construction that absolves a person of a finding of racial discrimination where, in fact, no racial prejudice is present.
If, however, I am wrong and Queen Mary College have, albeit innocently, unlawfully discriminated against Mr Orphanos within the meaning of this difficult Act, I agree that, for the reasons given by Lord Justice May, he is unable to recover the fees he paid for the 1982/83 session.
For these reasons, I would dismiss this appeal.
JUDGMENT BY MAY LJ
I have had the opportunity of reading in draft the judgment which my Lord has just delivered. In so far as the terms of the contract between the applicant and the respondent are concerned, I agree entirely with what my Lord has said and with his conclusion, and do not wish to add anything.
However, I respectfully find myself unable to agree with what he has said with regard to the contention that, if the contract entered into between the parties was as we are both agreed, then the respondent unlawfully discriminated against the appellant in the terms on which it offered to accept him as a student, contrary to sections 17 and 1(1)(b) of the Race Relations Act 1976. Nevertheless, for reasons which will appear, I agree that, in the ultimate result, this appeal should be dismissed.
Insofar as is material, section 17 renders it unlawful inter alia to discriminate against a person in the terms on which a University offers to admit him as a pupil. Section 1 of the Act defines racial discrimination, both direct and indirect. We are concerned with the latter, which is covered by paragraph (b) in section 1(1) and which I need not repeat in this judgment.
Now, it was common ground between the parties that the differentiation by the respondent with respect to the different fees to be paid by Home and Overseas students did come within sub-paragraphs (i) and (iii) of section 1(1)(b). Thus, it was accepted, it did amount to unlawful indirect discrimination unless the respondent could show that it was justifiable, irrespective of the colour, race, nationality or ethnic or national origins of the appellant and other students to whom it was applied.
The justification relied on by the respondent was that set out in the further and better particulars of the Defence dated 17th May 1984. These were admitted on behalf of the appellant, without prejudice to his contention that they could not constitute justification irrespective of racial grounds within sub-paragraph (ii) of section 1(1)(b) of the Act.
For the respondent, Mr Scrivener submitted that, in effect, the justification so pleaded and agreed was effectively an "economic" justification irrespective of the racial considerations to which sub-paragraph (ii) refers. There were insufficient funds to help all the students who wanted to go to Universities and whom the latter would take. Consequently, some criteria had to be laid down to decide which students should be subsidised. This had to be done solely because there were inadequate funds available and not on racial grounds at all.
On behalf of the appellant, Mr Beloff accepted that the motive for differentiating between the fees to be paid by Home students on the one hand and Overseas students on the other was an economic one. Nevertheless, he submitted that so soon as one did distinguish between Home and Overseas students on the basis which the respondents did, it could not be said that the economic justification was "irrespective" of the national origins of students.
In the court below the learned judge accepted the respondent's argument and encapsulated his finding on the point in this way: "It is simplistic and wrong to say that the practice is not justifiable" because it was aimed at 'foreigners'". Mr Beloff contended that, in so holding, the learned judge was conflating the two considerations raised by sub-paragraph (ii) of the material sub-section - the first that of justifiability; the second whether the justification, if proved, could be said to be "irrespective of (for instance) national origins".
With respect to the learned judge, I, for my part, think that he was wrong in the conclusion to which he came on this point. I agree that the requirement of fee differentiation which the respondent imposed on students wishing to join the college was "applied" for economic reasons. But that only looks to the opening words of paragraph (b) of the sub-section. I agree that the requirement can be said to be justifiable; it was applied for an understandable and proper reason. However, once it is seen that the requirement by its very terms differentiates in the main between United Kingdom students on the one hand and foreign students on the other, I do not think that it can be said to be justifiable irrespective of the students' national origins. A condition or requirement applied on the grounds of public health, as in Pensar v Nestle Co Ltd [1980] ICR 144, [1980] IRLR 64, referred to with approval by Lord Fraser of Tullybelton in Mandla v Dowell Lee [1983] 2 AC 548, [1983] 2 WLR 620, at page 567, has nothing to do with the national origins of those to whom it is applied, it pays no regard to them, it is irrespective of them. However, a requirement that a student should have lived in this country for three years before his University course beings in order to qualify for subsidised fees must, in my opinion, have regard to his national origins.
Further, although I appreciate the argument that section 41 may have been included in the 1976 Act only ex abundantia cautelae and to avoid just the sort of dispute and difficult consideration which has arisen in this case, it seems to me clear that Parliament thought that a requirement such as that with which we are concerned, which discriminates against a person on the basis of his place of ordinary residence, might well be unlawful.
Insofar as is material section 41(2) of the Act is in these terms:
"(2) Nothing in Parts II to IV shall render unlawful any act whereby a person discriminates against another on the basis of that other's nationality or place of ordinary residence or the length of time for which he has been present or resident in or outside the United Kingdom or an area within the United Kingdom, if that act is done(a) in pursuance of any arrangements made (whether before or after the passing of this Act) by or with the approval of, or for the time being approved by, a Minister of the Crown;..."
At all material times the Secretary of State had indeed approved the arrangements which differentiated between Home and Overseas students on the bais of their "ordinary residence" for the three years before their degree course began, and thus the fees which they paid, which are those in dispute in this case. The belief that such approved arrangements rendered lawful something which otherwise might have been unlawful was no longer tenable, as the learned judge held, and I think correctly held, after the decision in the House of Lords in Shah's case to which reference has already been made.
For the academic year 1983/84, all those concerned no longer had to rely upon any approved arrangement under section 47(2). Parliament passed the Education (Fees and Awards) Act 1983 and the Secretary of State made Regulations thereunder (SI 1983 No 973) which put the matter beyond argument for that second academic year. For the earlier 1982/83 year with which we are principally concerned, however, for the reasons I have given I think that the condition which the respondent required the appellant to satisfy before being entitled to pay only the reduced fees applicable to Home students did amount to unlawful discrimination under the Race Relations Act 1976. I have no doubt that the reason why the Secretary of State felt it necessary to exercise his powers under section 47(2) to approve the relevant arrangements was because he was advised, and I think correctly advised, that, without that approval, not only Universities, but also local education authorities who applied the same or a similar test in respect of students' grants, all pursuant to entirely understandable Government policy, would nevertheless otherwise be in breach of section 1(1)(b) of the Act.
If I am right on the above points, then the term of the contract between the appellant and the respondent under which he was required to pay fees at the Overseas student rate was unenforceable against him by virtue of section 72(2) of the 1976 Act. Mr Beloff therefore contended that, when the appellant paid his fees for the 1982/83 session, he did so under a common mistake of law and consequently may now recover them in this action.
Before venturing into the difficult territory of restitution after a mistake of law rather than fact, I refer first to Mr Scrivener's preliminary submissions about the extent of and limitations upon the appellant's rights under the 1976 Act in the event that his client should be held to have discriminated against the appellant, albeit wholly unintentionally and in circumstances in which no moral blame can attach to the college.
Counsel referred us to Part VIII of the 1976 Act and contended that this comprised a complete code for the enforcement of its provisions. At the outset he referred us to the first section in Part VIII, namely section 53, which, insofar as is material, reads:
"Except as provided by this Act no proceedings whether civil or criminal, shall lie against any person in respect of an act by reason that the act is unlawful by virtue of a provision of this Act."
This, Mr Scrivener submitted, precluded any action by the appellant for money had and received in respect of the difference between the two rates of fees. He then also drew our attention to section 57(1) of the Act, which in effect gives a person discriminated against a cause of action in respect of the discrimination as if it had been a tort or breach of statutory duty. However, section 57(3) provides that no damages shall be awarded in respect of an act of indirect, rather than direct, discrimination where the respondent proves that the requirement or condition in question was not applied with the intention of treating the claimant unfavourably on special grounds.
In my opinion, counsel's submission on the effect of section 53(1) is well founded. The appellant's claim is for money had and received as the result of the respondent's act of charging him fees at the Overseas students' rate, an act which, for the reasons I have given, I think was "unlawful by virtue of a provision of" the Act. For this reason, in any event, therefore, I think that the appellant's claim must fail.
Insofar as section 57(3) is concerned, the discrimination which I think did occur, and which has now to be treated as unlawful as the result of the decision in Shah's case, was clearly unintentional. Consequently, I think that any claim by the appellant to damages must also fail.
In case I were wrong in the view that I take of the proper construction and effect of section 53(1) in this case, I turn briefly to consider whether the claim for restitution following upon a common mistake of law, which it was common ground had to be the basis of the appellant's claim, apart from section 57, can be sustained. It is quite apparent from the number of authorities to which we were referred that the law on this subject is by no means settled. I think it unnecessary to refer to all the cases to which our attention was drawn, or to seek to categorise the type of case in which an action for restitution after a mistake in law will lie, as Mr Scrivener very helpfully did in his submission in answer to Mr Beloff's contentions on behalf of the appellant.
In my view, there is substantial similarity between the facts and circumstances of the instant case and that of Henderson v The Folkestone Waterworks Co (1885) 1 TLR 329. There a decision of the House of Lords, reversing the Court of Appeal, held the law to be different from what it had generally been thought to be. The plaintiff had paid a particular water rate because both he and the water company believed him liable to do so. The effect of the House of Lords decision, however, was that the plaintiff had not been liable to pay the rate. He therefore sued for its repayment as money had and received. The Queen's Bench Divisional Court held that he could not succeed. Lord Coleridge, CJ, who gave the leading judgment, had also been a member of the court which had previously held the relevant water rate law to be different from that laid down by the House of Lords. When, in the course of argument, counsel for Henderson contended that his client's payment had at all events been a payment in ignorance of law, the Lord Chief Justice's comments are reported as follows:
"Of what law? I was ignorant of it before the decision of the House of Lords. I had held the contrary, and two eminent Judges agreed with me. Can that be put as ignorance of the law? Just see what consequences would follow -- that wherever there has been a reversal of judgment all the money that has been paid under the previous notion of the law can be recovered back! Has that ever been held? Can it be that every reversal of a decision may give rise to hundreds of actions to recover back money previously paid?"
On the other hand, whilst Henderson v The Folkestone Waterworks Co (1885) 1 TLR 329 was one concerned with a mistake of law and nothing more, using the words of Lord Denning giving the opinion of the Privy Council in Kiriri Cotton Co Ltd v Dewani [1960] AC 192 [1960] 1 All ER 177, at [1960] AC 192 p 204, Mr Beloff submitted that the instant case does involve something more. Wholly unintentional though it was, and although it is accepted that the respondent has always done all it can to maintain good race relations within the college and with its students, there was, as I have held, an unlawful breach of a provision of the 1976 Act. In the Kiriri Cotton case, which was one concerned with the recovery of an unlawful premium paid under a mistake of law to obtain the grant of a sub-lease, after considering the earlier authorities, Lord Denning said: "The issue thus becomes: Was the plaintiff in pari delicto with the defendant?" A little later in the Opinion, at page 204 of the report, the learned Lord stated the relevant principles in this way:
"It is not correct to say that everyone is presumed to know the law. The true proposition is that no man can excuse himself from doing his duty by saying that he did not know the law on the matter. Ignorantia juris neminem excusat. Nor is it correct to say that money paid under a mistake of law can never be recovered back. The true proposition is that money paid under a mistake of law, by itself and without more, cannot be recovered back. James, LJ pointed that out in Rogers v Ingham. If there is something in the defendant's conduct which shows that, of the two of them, he is the one primarily responsible for the mistake - then it may be recovered back. Thus, if as between the two of them the duty of observing the law is placed on the shoulders of the one rather than the other - it being imposed on him specially for the protection of the other - then they are not in pari delicto and the money can be recovered back; see Browning v Morris, by Lord Mansfield."
Mr Beloff contended that the appellant and the respondent were not in pari delicto in the instant case: it was the respondent, he suggested, who was principally responsible for the mistake of law and thus the appellant can recover the fees which he over-paid for 1982/83.
I respectfully disagree. Until the house of Lords decided Shah's case, not only universities but also local education authorities responsible for making awards to university students - in some circumstances indeed bound to do so - believed the law to be as the Queen's Bench Divisional Court and the Court of Appeal had each held it to be. The Secretary of State has approved arrangements based upon that understanding of the law. In the instant case, as in so many others, the respondent was found, wholly unwittingly, to have been in breach of the 1976 Act only because the House of Lords decision rendered inadequate the Secretary of State's approval of the arrangements which he had thought entirely satisfactory.
As was said in the course of argument, in this case one has to take account of two competing social considerations. In all the circumstances, I think that the reported observations of Lord Coleridge in Henderson's case are particularly pertinent although not, of course, part of his judgment in that case. What he did say in the latter, however, was:
"...here at the time the money was paid, which was before Dobb's (cf Shah's) case, the law was in favour of the company, and there was no authority to show that it could be recovered back on account of a judicial decision reversing the former understanding of the law."
I have come to the conclusion that that is a statement of the law which I would apply in this appeal. The facts of this case can, I think, be clearly distinguished from those in Kiriri Cotton v Dewani [1960] AC 192, [1960] 1 All ER 177. For these reasons also, I do not think that the appellant's claim for money had and received can succeed.
In the result, though in some respects on grounds rather different from those upon which he relied, I think that the learned judge reached the correct conclusion in this case. Consequently, I agree that this appeal must be dismissed.
DISPOSITION
Appeals dismissed with costs against the Legal Aid Fund, with opportunity for the Law Society to appeal if desired. Leave to appeal to the House of Lords granted.
SOLICITORS
Bindman and Partners; Stanleys & Simpson North