(B) THE APPROACH ADOPTED BY ENGLISH LAW

English law considers the unjust enrichment principle to have a formulaic rather than a normative function. Consequently, the defendant will be considered to have been unjustly enriched only where the circumstances of the enrichment fall within one of the recognized grounds of restitution. It follows that whether the defendant will be found to have been unjustly enriched is determined by reference to principle rather than to vague notions that, as a matter of justice, the defendant ought to return a benefit to the claimant.

It has been recognized, however, that this formula of unjust enrichment should not be treated as though it has statutory force.^[1] It is unclear what this means, other than to state the obvious that unjust enrichment is judge-made law. But, if this denial of statutory force suggests that judges are to be given significant discretion to determine whether the formula is satisfied on arbitrary grounds, this unacceptably confuses the formulaic and normative functions of the unjust enrichment principle.

• [1] Investment Trust Companies v HMRC [2012] EWHC 458 (Ch), [39] (Henderson J).