(C) ESTABLISHING THE CLAIM IN UNJUST ENRICHMENT

The claimant bears the burden of proving the elements of the unjust enrichment claim, namely that the defendant has been enriched at the claimant’s expense and one of the recognized grounds of restitution apply.^[1] Once this has been established, the burden then shifts to the defendant to establish a defence to the claim. Analysis of the different burdens borne by the claimant and the defendant has been assisted by Mitchell and Goudkamp, who draw a significant distinction between denials and defences.^[2] A denial is an assertion by a defendant that an element of the cause of action is not established, whereas defences only arise once the cause of action has been established to indicate a reason why the defendant should not be liable or the liability should be reduced in some way. So, for example, if the defendant argues that there was a legal basis for the receipt of an enrichment, this is properly characterized as a denial of the claim, because the claimant bears the burden of proving that there was no legal basis for the enrichment.^[3] If however, the defendant argues that his or her position has changed after the enrichment has been received, this is a defence, which the defendant bears the burden of proving, because the change of position is only considered to be relevant after the cause of action has been established.^[4]

• [1] Banque Financiere de la Cite v Parc (Battersea) Ltd [1999] 1 AC 221, 227 (Lord Steyn).
• [2] C Mitchell and J Goudkamp, ‘Denials and Defences in the Law of Unjust Enrichment’ in C Mitchell andW Swadling (eds), The Restatement Third: Restitution and Unjust Enrichment (Oxford: Hart Publishing, 2013),ch 6.
• [3] See Chapter 7. 2 See Chapter 25.
• [4] 101 See, for example, Woolwich Equitable Building Society v IRC [1993] AC 70, 163; Pan Ocean Shipping Co