(D) SIGNIFICANT DISTINCTIONS
In defining what constitutes a mistake it is important to identify a number of significant distinctions. In doing so it is important to remember that mistake as a ground of restitution focuses on the state of mind of the claimant, to establish that the claimant’s intention to benefit the defendant can be vitiated. It is irrelevant that the defendant did not share the mistake.[1]
(i) Ignorance of and Mistake as to the Transfer
There is no satisfactory legal definition of what constitutes an operative mistake for the purposes of the law of restitution. Mistake could be given a very wide definition so that it even encompasses those cases which have already been treated as involving ignorance of the transfer.[2] In Pitt v Holt,[3] however, Lord Walker confirmed that mistake was different from ignorance or inadvertence about the transfer of the enrichment to the defendant. It is important to distinguish between those cases where the claimant is unaware of the transfer to the defendant and those cases where the claimant is aware of the transfer but makes an error in respect of what is being transferred or why it is being transferred. This is because, where the claimant is unaware of the transfer, there is no intention to transfer a benefit which needs to be vitiated before the claimant can obtain restitution.[4] Where, however, the claimant is aware of the transfer, there is an apparent intention to transfer the benefit and so, if the claimant is to obtain restitution on the ground of mistake, it must be shown that the mistake vitiated the claimant’s intention.
- [1] Although the defendant’s belief can be relevant when considering the applicability of defences, such aschange of position. See Chapter 25.
- [2] See Chapter 8. 3 [2013] UKSC 26, [2013] 2 AC 108, [104]. 4 See p 152, above.
- [3] 11 [2013] UKSC 26, [2013] 2 AC 108, [108].
- [4] 12 Ibid, [108]. See also C Mitchell, P Mitchell, and S Watterson (eds), Goff and Jones: The Law of Unjust
