(C) ALTERNATIVE ANALYSIS
Since the underlying cause of action for restitution for wrongdoing and restitution for unjust enrichment are different, it may be possible for the claimant to establish both types of claim on the same set of facts. This has been called ‘alternative analysis’.15 So, for example, if the claimant is induced to pay ?100 to the defendant as a result of a fraudulent misrepresentation, the claimant may base the restitutionary claim on the fact that the defendant has been unjustly enriched at the claimant’s expense, with the ground of restitution being the induced mistake.[1] Alternatively, the claimant may wish to base the claim on the tort of deceit.[2] Usually the result of the claim will be the same regardless of the cause of action which is chosen, but sometimes it will be a matter of importance to the claimant whether the claim is founded on the commission of a wrong or the reversal of the defendant’s unjust enrichment. One of the most significant factors affecting how the action is framed relates to what the claimant needs to prove to establish the cause of action. It may, for example, be easier to prove that the defendant has been unjustly enriched than that the defendant has committed a wrong, primarily because liability for unjust enrichment is strict whereas liability for a number of wrongs requires proof of fault.
The fact that alternative analysis is possible means that some of the old cases in particular need to be treated with care because, although they may appear to have decided that a restitutionary remedy could be awarded for the type of wrong which was committed, the cause of action might today be interpreted as having been founded on unjust enrichment.
