Book reviews

This is the sixth edition of the book which may be said to have initiated the English acceptance of the principle of unjust enrichment as the basis of the law of restitution.  The first edition appeared in 1966, and the first-named author went on to become Lord Goff of Chieveley and to play an important role in translating the arguments of the book into positive law. The second-named author, Professor Gareth Jones of Cambridge, now also in retirement, has been solely responsible for this and the two previous editions. The onerous nature of this task can be seen from the increasingly short intervals between editions, this one appearing a mere four years after the last. With the law of restitution seeming to have reached some sort of stability after a turbulent decade, it may be that this latest edition is some sort of swansong. If so, it is a monument to the impact which text writing of this quality can have on the development of the law.

Despite its acceptance of the unjust enrichment principle, English law remains very different from Scots enrichment law. Is Goff & Jones of more than comparative interest for the Scots lawyer, therefore? English law has had its influences on Scots enrichment law, some of them not for the good; but it may be doubted whether one of our own great cases of the 1990s, Morgan Guaranty v Lothian Regional Council 1995 SC 151 would have been decided as it was without Woolwich Building Society v Inland Revenue [1993] AC 70, while in the other such case, Shilliday v Smith 1998 SC 725, Lord President Rodger indicated the importance he attached to Professor Peter Birks’ work on English law. Among the important new English cases discussed in detail in this edition, Royal Bank of Scotland v Etridge [2002] 2 AC 773 (undue influence and spousal guarantees) has been debated in the Scottish courts, although (it should be stressed) not accepted. On the other hand, Attorney General v Blake [2001] 1 AC 268 (restitutionary damages for breach of contract) has so far attracted only academic interest in Scotland, while arguably in Kleinwort Benson [1999] 2 AC 349 (mistake of law bar to recovery abolished) the significance is the influence of Scots law on the development of English law, rather than the other way around.

This leads on, however, to the point that of Scottish decisions, a cursory search of the Table of Cases revealed only Cantiere San Rocco v Clyde Shipbuilding & Engineering Co 1923 SC (HL) 105, Esso Petroleum v Hall Russell 1988 SLT 874 (HL) and Caledonia North Sea v British Telecommunications 2002 SLT 278 (HL) (in the latter two of which it was accepted that Scots and English law were the same). While citation and discussion of Scottish cases is not to be looked for in a detailed work on English law, where Scottish authority has been cited and Scottish judges are giving important speeches in the development of English law (e.g. Lord Hope of Craighead in Kleinwort Benson), one might expect to see some reference to that material. For example, in Etridge Lord Clyde was somewhat critical of the English distinction between “presumed” and “actual” undue influence, not received in Scotland when the concept of undue influence was transplanted there in the 1870s. Again, in Professor Jones’ discussion of the Blake case, he follows the House of Lords in not referring to Teacher v Calder (1899) 1 F (HL) 39, although previously in both England and Scotland that decision was thought to stand against the recovery of a contract-breaker’s profits by the other party. In both jurisdictions it would be useful to have a view on whether Teacher remains good authority.

This then is a book which will probably not end up on the shelves of most Scottish practitioners, but rather be confined to the major libraries and the specialist reader. The final words, however, should be ones of congratulation to Professor Jones for a marvellously sustained achievement across nearly 40 years, and to express the hope that a Scottish equivalent will soon arise in which the relevance of the English authorities here so masterfully gathered and assessed will receive appropriate treatment.

Professor Hector L MacQueen, University of Edinburgh.