(iii) Preservation of Property
Even though restitution was denied in Falcke v Scottish Imperial Insurance Co,67 where the claimant had paid premiums to preserve an insurance policy which would otherwise have lapsed, this was only because the claimant was acting to protect his own interest in the property rather than that of the defendant.68 It could therefore be concluded that the claimant had been acting as a volunteer. It does not follow that restitution will automatically be denied where the claimant has intervened to protect the defendant’s property, as long as the claimant was not acting voluntarily, even though some cases assume that there is a blanket rule denying restitution in such circumstances. An example of a case where restitution was denied is Binstead v Buck69 where the claimant looked after the defendant’s stray dog for 20 weeks.
There are, however, a number of other cases in which it has been recognized that restitution should be, or could have been, awarded where the claimant intervened in circumstances of necessity to protect the defendant’s property. For example, in Nicholson v Chapman70 timber which had been left on the bank of the River Thames was carried away by the tide and was left on a tow path, where it was found by the defendant, who moved it to safety beyond the reach of the tide. The defendant’s claim that he had a lien over the timber as security for the expenditure incurred in rescuing it was rejected. But Eyre CJ did suggest that the defendant should be entitled to recover from the owner his reasonable expenditure in rescuing the timber and that a court would ‘go as far as it could go towards enforcing’ such payment.71 In Jenkins v Tucker72 Lord Loughborough suggested that, where the defendant’s goods had been seized for payment of tax and the claimant had redeemed the goods by paying the tax for the defendant, the claimant could recover the money paid from the owner. This action nicely mirrors an equivalent restitutionary action where the claimant’s goods have been seized by a third party in respect of a liability owed by the defendant and the claimant discharged the defendant’s debt to recover the goods. Here the ground of restitution would be legal compulsion. Where the defendant’s goods have been seized and the claimant intervenes to discharge the liability, the ground of restitution would presumably be characterized as founded on the necessity principle.
These cases therefore suggest that, where the claimant intervenes to protect the defendant’s property in circumstances of necessity, it may be possible to establish a restitutionary claim. It must follow that this claim will be a personal one and the claimant will not be awarded a proprietary remedy, such as a lien over the property which has been protected, since there is no obvious reason why the claimant should be considered to have a proprietary interest in the defendant’s property simply by virtue of the claimant’s necessitous intervention. The personal remedy will only lie to the extent that the claimant has intervened to protect and preserve property and will not lie to the extent that the claimant has improved the property, because the improvement cannot be justified by the need to act urgently. As Stoljar has said, ‘[m]any, probably most, common law instances of officious conduct are in fact those of a volunteer merely improving property, his acts going well beyond what urgent preservation would demand’. It is for this reason that restitution was denied in such cases as Taylor v Laird, where the claimant had improved property in which the defendant had an interest as a tenant in common and the claimant then sought restitution from the defendant.
(C) A GENERAL PRINCIPLE OF NECESSITOUS INTERVENTION
There is no reason why restitutionary claims founded on the circumstances of necessity should be confined to these established categories. Whilst the facts of a number of these cases will not occur again, particularly with the introduction of the welfare state and a national health service, the principles which are embodied in them will continue to be of general relevance. So long as the claimant’s conduct in assisting the defendant can be regarded as reasonable, as assessed by reference to the established principles, restitution should lie even though the facts do not fall within one of the established categories of necessity.
-  Exall v Partridge (1799) 8 Term Rep 308, 101 ER 1405. See p 239, above.
-  Nicholson v Chapman (1793) 2 H Bl 254, 126 ER 536. See also Falcke v Scottish Imperial Insurance Co(1886) 34 Ch D 234, 248 (Bowen LJ).
-  Stoljar, The Law of Quasi-Contract (2nd edn), 208. 76 (1856) 25 LJ Ex 329.
-  77 Jebara v Ottoman Bank  2 KB 254, 271 (Scrutton LJ).