(B) THE PRINCIPLE OF VOLUNTARINESS

The predominant reason for the underdeveloped nature of the necessity principle in English law is because of the importance of the principle of voluntariness which operates to bar restitutionary claims.^[1] The success of restitutionary claims grounded on necessity will depend on how the principle of voluntariness is defined. In Falcke v Scottish Imperial Insurance Co^[2] Bowen LJ identified the essence of the principle of voluntariness when he stated that:

The general principle is, beyond all question, that work or labour done or money expended by one man to preserve or benefit the property of another do not according to English law create any lien upon the property saved or benefited, nor even, if standing alone, create any obligation to repay the expenditure. Liabilities are not to be forced on people behind their backs any more than you can confer a benefit upon a man against his will.^{[3] [4]}

It follows that the claimant will have acted voluntarily where he or she acted without the consent or knowledge of the defendant. Restitution will be denied because the claimant will be deemed to have taken the risk that he or she would not be reimbursed by the defendant for the work done or the money which had been expended, without a prior request from the defendant to do so. If this is the correct interpretation of the voluntariness principle it follows that it will be virtually impossible to obtain restitution in the context of claims grounded on necessity, because typically the defendant will be unaware that the claimant had intervened. The definition of the voluntariness principle can, however, be clarified further, to make it compatible with allowing restitution for some cases of necessitous intervention, although the authorities are not consistent as to what this clarified definition should be. Two distinct interpretations of the principle are viable.

• [1] See p 36, above. This is sometimes called ‘officiousness’: ENE Kos 1 Ltd v Petroleo Brasileiro SA (No 2)
• [2] [2012] UKSC 17, [2012] 2 AC 164, [19] (Lord Sumption). For discussion of this principle see in particular EWHope, ‘Officiousness’ (1929) 15 Cornell LQ 5 and PBH Birks, ‘Negotiorum Gestio and the Common Law’(1971) 24 CLP 110. 6 (1886) 34 Ch D 234.
• [3] Ibid, 248. Bowen LJ went on to recognize an exception to this principle in the context of maritime salvage.See p 305, below.
• [4] [1911] 2 KB 528. See also Binstead v Buck (1777) 2 Black W 1117, 96 ER 660.