England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT CHANCERY DIVISION
MR JUSTICE MANN
HC6C02193

		Royal Courts of Justice Strand, London, WC2A 2LL
		19 December 2008

The Chancellor:

Introduction
1. The defendant and appellant ("the Club") is a premier league football club with a home ground at a stadium in Wigan known as the JJB Stadium. It occupies the stadium as the licensee of Wigan Football Club Ltd ("the Stadium Company"). In order that football matches may be played at the stadium it is necessary for the Stadium Company to be the holder of a certificate under the Safety of Sports Grounds Act 1975. The certificate in force for the seasons with which this appeal is concerned, namely 2003/04 and 2004/05, required the Stadium Company to secure at its expense the attendance of "such number of police officers as in the opinion of the Chief Constable is sufficient to ensure orderly behaviour of spectators". In practice that obligation was delegated by the Stadium Company to the Club.
2. The claimant and respondent ("the Chief Constable") is the relevant chief constable for the purposes of that certificate. In the material seasons his duties in relation to football matches in the JJB Stadium were discharged by Chief Superintendent Mason. In July 2003 Mr Mason received a memorandum from the Assistant Chief Constable in reference to a Home Office Circular requiring that policing costs of football matches should be paid in full by the relevant club. In addition the Club had been promoted at the end of the 2002/03 season from Division 2 to Division 1 with the consequence that additional policing at home matches was likely to be required.
3. Before and during the 2003/04 season there were a number of meetings between Mr Mason and other representatives of the Chief Constable and Mrs Spencer, the Chief Executive of the Club, and Mr David Whelan, the chairman of the Club and principal shareholder in the Stadium Company, at which the representatives of the Club refused to pay for policing over and above the levels of policing enjoyed in previous seasons. Notwithstanding these objections policing was provided by or on behalf of the Chief Constable at a higher level, that is to say by the deployment of more officers than in the previous season. Such levels were discussed at pre-match safety meetings and reflected in post match invoices. Eventually the Club paid for policing at the levels provided in the previous season but at current rates. This continued for the rest of the 2003/04 season and into the 2004/05 season.
4. In January 2005 the Chief Constable threatened to bring proceedings against the Club for the recovery of the unpaid balance of the cost of policing actually provided. On 6th August 2005 he did so "in respect of special police services pursuant to s.25 Police Act 1996". That section provides that:

"The chief officer of police of a police force may provide, at the request of any person, special policing services at any premises or in any locality in the police area for which the force is maintained, subject to the payment to the police authority of charges on such scales as may be determined by that authority."

In short the Chief Constable contended that the services for which he sought payment were special policing services provided at the request of the Club in accordance with the scale of costs determined by him. By then the Club had paid substantial further sums on a without prejudice basis and counterclaimed for the return of £293,085.07.

5. In due course the claim came on for trial before Mann J in London in October 2007. For the reasons given by him in his detailed judgment handed down on 21st December 2007 he found for the Chief Constable (referred to throughout as "GMP"). In summary he concluded that (1) a request by the Club for such services as the Chief Constable considered to be necessary for the proper policing of a particular event should be implied notwithstanding the oft repeated refusal of the Club to pay for some of them and (2) special policing services had been provided by the Chief Constable in response to such requests. He held that s.25 did not create a statutory head of claim but that if its constituent elements were established the Chief Constable was entitled to recover on the basis of a contract to pay a reasonable sum or in restitution.
6. Mann J considered in detail the special policing services provided and the various sums claimed by the Chief Constable. In the light of his conclusions he invited the parties to calculate the sums due. The monetary consequence, as agreed by the parties, was that Wigan was entitled to the return of £26,955. Its counterclaim for the balance of the sum of £293,085 was dismissed but the Chief Constable obtained an order for payment of interest on that balance of £22,368.86. Mann J gave permission to appeal in respect of his conclusions that (1) there was a request for the purposes of s.25 Police Act 1996 and (2) the Chief Constable had a basis for recovery either in contract or in restitution. Neither side has sought permission to appeal on any of his other conclusions. I will deal with those issues in due course, but, first, it is necessary to set out the facts as found by the judge in greater detail.
The Facts
7. In paragraphs 1 to 5 the judge described how the claim arose. In paragraphs 6 to 13 he dealt with the location of the stadium, the terms of its lease to the Stadium Company and its layout. In paragraphs 14 to 22 he summarised the outline arrangements for the policing of matches at the JJB Stadium. He pointed out that the extent of the requisite policing was dependent in part on the type of match, in particular the number and nature of the away team's spectators. The process starts by ascertaining the category of match to be policed. This was described by the judge in paragraph 22 of his judgment in the following terms:

"This technique [match categorisation] was adopted by forces other than GMP as well as GMP itself. The principal categorisation was an ascending order of seriousness (and therefore of policing) from A to C. Sub categories of B+ and C+ were also used by GMP. The category into which a match fell was discussed and agreed provisionally with the club before the beginning of each season, and upward or downward adjustments were made prior to each match as circumstances required. The sort of considerations involved in determining the category were the number of away supporters expected, the general reputation of the away supporters and certain undesirable contingents associated with them, the number and reaction of home supporters, ticketing arrangements, and any additional specific intelligence-related matters that affected the match in question."

8. The categorisation of the match largely determined the numbers of police officers to be deployed. As the judge explained in paragraph 15 of his judgment:

"There are two important units which make up a detachment of police who police football matches. The first is a serial. This comprises one sergeant and seven constables. The second is a police support unit - "PSU". This is three serials plus an inspector - so it is one inspector, three sergeants and 21 constables. Each match has a match commander, who will usually be an inspector but who may on some odd occasions be a sergeant. If it is a bigger match, then there will be a "bronze" commander responsible for supervising the policing of an area wider than the stadium and its surroundings. On really big matches there will be a bronze commander in the stadium, another bronze commander in charge of policing outside the stadium and to the west of the canal, and a third bronze commander responsible for policing in the city centre area to the east of the canal. Over all those, if the situation requires it, is a silver commander who has control of the overall operation, town and stadium."

9. In paragraphs 17 to 21 the judge described the manner of deployment over a total of 8 areas ranging from the interior of the stadium to various pubs in the town centre and elsewhere. The charges with which this appeal is concerned were in respect of officers deployed in the stadium and its immediate surroundings, the car parks and an area called Point 5 where congestion could be caused by large numbers of fans crossing the canal. All these areas were private land. The other areas, for which no charge was made, were public such as the town centre and a retail park.
10. In paragraphs 23 to 29 the judge referred to the certificate held by the Stadium Company under the Safety of Sports Grounds Act 1975 and the Home Office Circular to which I have already sufficiently referred. In paragraph 30 he described the witnesses who had given oral evidence before him. In paragraphs 31 to 71 the judge described in detail the events leading up to the dispute. I need only select certain passages as relevant to this appeal. In paragraph 33 he considered the level of policing before the seasons with which this appeal is concerned. He found that:

"There was no material disagreement as to the payment of the club for policing costs until the two seasons 2003/04 and 2004/05. In those earlier seasons the club was working its way up through the two lower leagues of the Football League. Before each season the match categorisation was agreed between Mrs Spencer and Mr Mason's predecessor, Superintendent Harrison. Each categorisation also carried an agreed level of policing to be paid for. The agreement dealt in serials - 1 sergeant and 7 constables ("1+7", or multiples thereof), and there were agreed levels for inside the ground and for an "outside reserve". The levels were as follows:

Category	Inside	Outside Reserve
A	1+7	1+7
B	2+14	2+14
C	3+21	3+21

The judge went on to explain that outside reserves were only paid for if they came into the Stadium and were not a reserve in the sense of sitting and waiting for something to happen but were policing the outside in whatever was the appropriate manner.

11. Further in the earlier seasons the Chief Constable and the Club agreed and signed various documents including a "Statement of Intent as to working practice at the JJB Stadium" and an "Acknowledgement and Request". The former was not intended to create legal relations but the latter incorporated a request under s.25 Police Act 1996. As the judge noted in paragraph 45 there was no particular problem in the preceding seasons. In the season 2002/03 the total policing bill submitted by the Chief Constable to the Club and duly paid was £61,000.
12. As the judge put it in paragraph 48, by the start of the 2003/04 season Mr Mason had come on to the scene and had been made aware of the Home Office circular. In June 2003 he met Mrs Spencer to discuss arrangements for the forthcoming season. He produced a categorisation of the various fixtures and discussed with her the level of policing appropriate to each category. The levels he suggested were as set out in the following table:

[Category]	[Policing level]
A	1+3+21
B	2+6+42
B+	3+9+63
C	4+12+84
C+	5+15+105

In that table the first digit is inspectors, the second is sergeants and the third is constables.

13. The judge then described the differences between the level of policing as shown in the table set out in paragraph 10 above when compared to that set out in paragraph 12. The only two which need to be noted for present purposes is that in the latter the numbers of inspectors appeared for the first time and the level of policing, determined by the number of PSU's required as opposed to serials, had increased. The effect was to increase the cost to the Club substantially. The attitude of Mrs Spencer at this meeting was described by the judge in paragraph 52 of his judgment these terms:

"Mrs Spencer was less pleased when the consequences in proposed deployment became apparent because of the increase in the bills that would have come about. The club wanted to have SPS, and the police were willing to provide it. However, Mr Mason insisted that the officers he would provide, and that he would expect to be paid for, would be those that I have identified above. There was no material challenge to the match categorisation. I find that there was a clear objection to the proposal that the club would pay for the extra police shown in each categorisation. Mrs Spencer did not challenge the decision of the police that these deployments were necessary from the point of view of policing needs, but she made clear that she did object to having to pay for the deployment of so many policemen. She did not agree that the policing for which she should pay should go up so dramatically when compared with the previous year. She also indicated that she did not think that Mr Whelan would agree."

14. Mrs Spencer's stance was also that of Mr Whelan at a meeting with Mr Mason on 3rd November. The attitude of the Club whether expressed by Mrs Spencer or Mr Whelan remained the same at all subsequent meetings as described by the judge in some detail in paragraphs 54, 59, 62 and 64. The judge summarised his conclusions in paragraph 101 in the following terms:

"In the present case the issue surrounding the notion of a request arises out of where the parties had got to in their dealings about the two disputed seasons. It is plain that there was no express concluded detailed agreement. The club wanted SPS, and GMP was willing to provide it, but beyond that there were disagreements. Mr Mason had said what level of paid-for manpower he was prepared to provide. The club expressly refused to accept that and said it would not pay for all those officers. In due course, at least by its conduct, it agreed to pay at a reduced staffing rate. That difference of view was never expressly resolved."

Was there a s.25 request?
15. After setting out the facts of which I have described the broad outline above, Mann J considered three cases to which he had been referred, namely Glasbrook Bros Ltd v Glamorgan County Council [1925] AC 270; Harris v Sheffield United Football Club [1988] QB 77 and West Yorkshire Police Authority v Reading Festival Ltd [2006] 1 WLR 2005. In Glasbrook the House of Lords considered the circumstances in which a police authority might charge for its services given its common law duty to preserve the peace. Statutory effect was given to that decision by s.15 Police Act 1964, the statutory predecessor of s.25 Police Act 1996. Thus the dividing line is between what s.25 describes as "special police services" provided at the request of any person and other police services whether or not provided at anyone's request. The police authority may charge for the former but not the latter. The phrase "special police services" is not defined. No doubt they are to be distinguished from the police services involved in the discharge by a police authority of its common law duty.
16. In Harris v Sheffield United Football Club [1988] QB 77 special arrangements had been made for the attendance of police officers within the Club's grounds for which the Club had paid. The police continued to attend on match days but the Club refused to pay anything at all on the basis that the services provided by the police were part of their common law duty and should continue to be provided, but free of charge. The police authority sued for their charges under s.15 Police Act 1964 on the footing that their services had been provided at the request of the Club. The Club contended that such services were not special police services and should be free. The judge gave judgment in favour of the police authority and the Court of Appeal dismissed the Club's appeal.
17. At p.93 Neill LJ having concluded that the services provided were special police services within the section continued:

"The question then remains: are these services "requested" by the club within the meaning of s.15(1). It was very strongly argued on behalf of the club that after 26 October 1983 the club made no relevant request for such services other than requests made on a without prejudice basis. In my view this part of the club's argument, unlike the argument on the meaning of "special police services," lacks any real substance. If the club is to hold matches at Bramall Lane it is necessary for police officers to attend inside the ground. Their presence is necessary to enable the club to meet its responsibilities to the players, the staff and the spectators as well as to comply with the rules imposed by the football authorities. It is not necessary to examine what steps could be taken, and by whom, to stop a match taking place if the club authorities declined to allow the police to attend. But there is no likelihood that the club authorities, who have acted with a great sense of responsibility throughout, would take such a course. It may be that the request for the police services can only be implied from all the circumstances and that it is made without enthusiasm. But if the police attend in order to enable the match to take place then, in the circumstances existing in this case, I consider that a request is to be implied."

18. In West Yorkshire Police Authority v Reading Festival Ltd [2006] 1 WLR 2005 the defendant was the promoter of an annual music festival. In previous years the claimant police authority had provided large numbers of officers on the festival site for which the promoter had paid on the basis that they were special police services provided at his request. In 2003 the police authority indicated that it would deploy only a few officers on the festival site but a large number in the surrounding area who could be called upon to deal with any major incidents. The promoter refused to pay for officers deployed offsite but agreed to pay for those deployed on site. In the event the promoter policed the site with hired security staff and the police authority deployed the large number of officers it had indicated in the surrounding area. The police authority sued for its costs of providing the off-site police services. The promoter paid those relevant to traffic management but refused to pay the rest.
19. The judge found for the police authority on the basis that the off-site police services were special and provided at the request of the promoter. The promoter appealed to the Court of Appeal. The Court of Appeal concluded that the services provided by the police authority had not been provided at the implied request of the promoter and allowed the promotor's appeal. The only reasoned judgment was given by Scott Baker LJ, with whom Jacob and Neuberger LJJ agreed. In paragraph 21 of his judgment Scott Baker LJ considered the ambit of s.25 in these terms:

"In my judgment the key features of Section 25(1) on a natural reading of the words are (1) there must be a request for special police services, (2) the chief officer has a discretion to provide them and (3) if he agrees to do so the police authority, in the absence of agreement, is entitled to fix the scale of charges. The section does not speak of a contract as such but it seems to me there would ordinarily need to be agreement between the promoter and the police as to what was being provided – at least in broad terms – before a liability to pay arises. I say 'in broad terms' because how the police provide the services requested must ultimately always be a matter for them; they make the operational decisions. We were not referred to any reported case in which a claim has succeeded under this section that has not been based on contract."

20. After considering the decision of the Court of Appeal in Harris, Scott Baker LJ considered whether, as the judge had thought, a request could be implied. In the course of that consideration he set out the relevant principle in paragraphs 49 and 50 in the following terms:

"49. The principle that it is for the police themselves to decide how they deploy their officers and resources and police a particular situation is wholly apposite when they are performing their general public duty but it has to be applied with some care to a situation where the police are providing 'special police services' where regard must be had to the actual services requested. The judge in paragraph 26 appears to have treated the principle as of wider application than was justified on the facts of this case.

50. Whilst I entirely accept that it is a matter for the police how the policing is conducted and the promoter cannot dictate to the police how they are to perform their public duty, that does not in my view put the promoter in an all or nothing situation as far as 'special police services' are concerned. He can, for example, say that there is a ceiling to his budget to which the police would be entitled to respond that they were not prepared to provide any 'special police services'. He can say what he wants and is prepared to pay for, and what he does not want. Each side has a right of veto. In my judgment, although it does not expressly say so, it is very difficult to see how section 25(1) can operate absent a contract. There has to be a request accepted by the chief officer of police. This could of course be achieved by the police saying we want to do this and the promoter agreeing. The claim is pleaded as an implied contract."

21. In relation to the judge's conclusion that a request was to be implied he said :

"54. [The judge] concluded that this [the fact that the promoter wished to have officers on site] plainly amounted to a request for 'special police services' for the purposes of section 25. Accordingly, the case turned on whether the police provided 'special police services'. The judge then observed that a claim in contract could not have succeeded because there was no meeting of minds as to how the police services were to be deployed and how they were to be paid.

55. In my judgment the judge fell into error. Assuming for present purposes that [the promoter] wanted the police operation to include officers patrolling the site and assuming that wish went as far as amounting to a request for 'special police services', what the police in fact provided was something entirely different, namely a large contingent offsite that could be called up if [the promoter]'s onsite arrangements proved inadequate. There was nothing to suggest the police were required in surrounding villages in order for [the promoter] to stage the festival. Looked at another way, the request under section 25(1) cannot be divorced from the special services for which a charge is to be made. In my view the judge's finding that there was no meeting of minds is fatal to the claim. It is not as if there was a request by [the promoter] to the police to police its festival leaving the police to do it in whatever manner they wished. The judge was not entitled on the facts that he found to spell out a request by [the promoter] for 'special police services' under section 25. Once he had concluded a claim based on contract could not succeed the police claim was bound to fail."

22. Having considered all those passages (and more) from the judgments in the three cases to which I have referred Mann J then sought to apply the principles exemplified in them to the facts of the case before him. In doing so he went in some detail into what he described as geographical and qualitative limitations to which we have not been referred. He dealt with the request point in paragraphs 100 to 112. He recognised that there had been no express concluded agreement (paragraph 101). He rejected the submission that there was some continuing contract for police services arising from previous years; the request, if there was one, was on a match by match basis (paragraph 102). He accepted that in the face of the Club's refusal to pay for the increased policing there was no express request and that there were substantial arguments against the implication of a request (paragraph 105). But, he continued, "I do not consider that that conclusion would give the right effect to all the facts".
23. In paragraphs 106 and 107 Mann J summarised the facts to which he had referred. The summary is too long to be quoted but its essential features are the following:

(1) As in Harris, some policing inside the Stadium was necessary in order that the Club's various home matches could be played.

(2) The extent of such policing was a matter for the Chief Constable.

(3) The policing outside the Stadium at the places referred to in paragraph 9 above were an integral part of the police operation.

(4) Mr Mason would have been entitled to refuse to provide any police services unless the Club had agreed to pay for them.

(5) Accordingly the Club could be expected to pay for special police services rendered outside the Stadium itself.

(6) Instead of refusing to provide any police services Mr Mason provided the policing he thought to be necessary. The Club knew he was doing so and took the benefit of it. The benefit included the ability to play its matches in the Stadium because without the policing actually provided the matches would not have conformed to the conditions imposed by the certificate issued to the Stadium Company under the Safety of Sports Grounds Act 1975.

24. At that stage Mann J concluded that "subject to the express attitude of the club" a relevant request could be implied. He continued:

"109. I think that the real point in issue was encapsulated by evidence given by Mr Whelan. On Day 3 of the trial he was asked about his views of fairness in relation to what the police were seeking at the beginning of the first disputed season:

"Q. You thought it was particularly unfair because the stadium company was paying £750,000 in rates?


A. I brought up to Mr Mason the fact that the stadium alone were contributing a lot of money to the Local Authority, of which a certain amount goes into policing. But I say now, and I said then, we do agree with special police charges that are fair, and fairly levied; we agreed with that then and we agree with it now.

Q. You are prepared to pay, for the seasons in question, a fair policing charge, are you?

A. Yes."

110. Perhaps the most significant point is that it is plain that the club made some request, express or implied, for SPS. It plainly wanted and needed it at least inside the stadium, although that was not the nature of its request. The real question is whether its request should be taken as being wider than that - a request for such services as the police considered necessary to police the event properly, and as could properly be treated as SPS. I think that the evidence as a whole shows the latter request to have been implicitly made. The objection to paying for the extra police was rooted not in a view that they were not needed, but in the view that they should not be paid for because the club should not have to pay for them. That translates into their being something that they were not obliged (in any sense) to pay for. But the club still wanted to stage its matches, still wanted SPS, and was still prepared to pay what was fair, and they said so, in effect. Subject to one particular point about fairness, involving a comparison with other clubs, and which I deal below, it is fair that the club should pay for that which the police were entitled, and wished, to charge, so I find that there was an implied request for that SPS."

25. Mann J then considered whether there was any inconsistency between his conclusion and that of the Court of Appeal in Reading Festival. He concluded that there was not. He added in paragraph 112:

"Contrast the present case on the basis of my findings. If the police properly thought that a given level of policing was necessary for the stadium, then in practical terms the club was going to have to accept them if it wanted to stage its matches. If the police thought that their presence on the surrounding land was necessary for safe policing of fixtures, then the club was required to have them under the terms of its certificate. Although he did not push the point, Mr Mason could have refused to supply partial policing for the stadium alone, so in practical terms as well as certification terms the club had to have the policing outside the stadium. That allows the necessary inference, and I make it, both in relation to levels of policing and policing in the area surrounding the stadium proper."

26. In his forceful and cogent submissions counsel for the Club contended that the conclusion of Mann J was not open to him in the light of his own findings and the conclusion of the Court of Appeal in Reading Festival. He relied on and emphasised the judge's conclusions in paragraphs 52, 54, 59, 62, 64 and 101 to which I have referred in paragraphs 13 and 14 above. He suggested that the judge's conclusion was inconsistent with the principles expressed by Scott Baker LJ in paragraphs 21, 49, 50 and 55 to 57 of his judgment in Reading Festival most of which I have quoted in paragraphs 19 to 21 above. He submitted that the judge's quotation from the evidence of Mr Whelan set out in paragraph 24 above was incomplete and failed to recognise the real burden of his evidence.
27. It is convenient to consider the last point at this stage. Mr Whelan was accepted by the judge as "a truthful witness". The quotation in paragraph 109 of the judgment of Mann J, taken from page 44 of the transcript, was used in paragraph 110 as some justification for the view that

"The objection to paying for the extra police was rooted not in a view that they were not needed, but in the view that they should not be paid for because the club should not have to pay for them."

Counsel for the Club submitted that that conclusion as to the Club's attitude was inconsistent with the evidence of Mr Whelan given both before and after the passage on which Mann J focussed.

28. At page 35 of the transcript when asked why the Club had refused to pay anything on the invoices delivered before November 2003 Mr Whelan had replied:

"Because we were telling the police that we did not agree with the amounts of policemen who were attending the game and we did not agree with the prices they were charging us..."

At page 44 of the transcript, immediately after the passage quoted by the judge Mr Whelan was asked whether he accepted that "the policing provided at Wigan's matches is appropriate". Mr Whelan replied:

"The policing that has been provided to Wigan in this season [2007/08], I think, is appropriate, apart from the six hours rather than the five hours. In the seasons gone by and the seasons that are in question, it was disproportionate, charging too many policemen at too great a cost."

Later, at page 45 of the transcript, Mr Whelan added:

"We have disagreed with the number of police that have been allocated to a football match, and I think that is quite - - that is what the case is all about. We have disagreed with the number of policemen that have been allocated to a match."

29. In my view the criticism of this part of the judgment of Mann J made by counsel for the Club is made out. Indeed I did not understand counsel for the Chief Constable to contend otherwise. As Mr Whelan pointed out in the other passages to which I have referred, the Club objected to the numbers of policemen deployed. Indeed that is the conclusion the judge had reached in the paragraphs of his judgment I have referred to in paragraphs 13 and 14 above.
30. Counsel for the Chief Constable, in his measured and responsible submissions, sought to uphold the judgment of Mann J in relation to his implication of a request for special police services. He emphasised that the special police services were supplied to the Club on a match by match basis, they were needed by the Club in order to be able to play its home matches in the Stadium because of the requirements of the certificate and were accepted by the Club in the sense that it did not seek to exclude the officers it considered to be surplus to requirements. In any event, as counsel pointed out, the level of policing was a matter for the Chief Constable or his delegate. He submitted that the dispute concerned the amount of the charge not the level of the police services.
31. Counsel for the Chief Constable submitted that the decision of the Court of Appeal in Harris did no more than show that a request may be implied even in the absence of any express request at any specific policing level. He contended that Reading Festival turned on its own facts and was of limited relevance to this case. He pointed out that in that case there was no need for any policing operation at all in that the promoter engaged private security staff for deployment on the festival site and the police services supplied were not those for which the promoter had asked.
32. I prefer the submissions of counsel for the Club. It is clear both from the terms of s.25 and the decision of the Court of Appeal in Reading Festival that 'the request' must match the special police services supplied. The match need not be exact because it is for the Chief Constable to determine the level of policing required. So, if a person asks the police authority to provide special police services at a private event and the services are provided at the level the police authority considers to be necessary it is no answer to the police authority's claim for reimbursement of the costs that the request had not specified the level of policing actually supplied. Conversely, if a promoter asks for onsite policing and the police authority concludes that only offsite policing is required it cannot, without more, charge the promoter for the offsite policing for which he did not ask.
33. The problem with this case is that it lies between those two extremes. If the correct view is that the Club requested special police services at such level as the Chief Constable thought fit but objected to paying for them as excessive in amount then, as counsel for the Chief Constable submitted and the judge concluded, the attitude of the Club would not preclude the inference of a request from all the other surrounding facts and circumstances to which they respectively referred. In that event the dispute would have been limited to the amount of the charge.
34. But that limited view of the dispute appears to me to be inconsistent with the judge's findings of primary fact. Those findings make it clear that the Club objected to the increase in the numbers of officers deployed at its home matches in any particular category as demonstrated by a comparison of the charts reproduced in paragraphs 10 and 12 above. That this was the nature of its objection was accepted by the judge in the passages in his judgment from which I have quoted or to which I have referred in paragraphs 13 and 14 above. And that was the objection to which Mr Whelan was referring in his oral evidence.
35. In these circumstances, it appears to me that the attitude of the Club was that the extra manpower which Mr Mason provided in the 2003/04 and 2004/05 seasons over and above that provided by his predecessor Mr Harrison in the season 2002/03 was not needed. I recognise that that conclusion is the opposite to that to which the judge came in paragraph 110 of his judgment. I acknowledge the need to treat his conclusion with the greatest respect not only because he saw and heard the witnesses but also because of the evident care with which he approached the problem. Nevertheless I consider that the judge's conclusion was wrong and this court should not shrink from saying so. There is no question of departing from the judge's findings of primary fact nor even from his primary inferences. But if the Club's objection was to the level of policing, irrespective of whether it was entitled to do so, it is impossible to infer a request for the provision of the special police services to which it objected. This is the only possible conclusion consistent with the decision of this court in Reading Festival.
The Consequences
36. It is necessary to consider the consequences of a conclusion that the Club did not request the special police services for which the Chief Constable seeks to recover. In paragraphs 120 and 121 of his judgment Mann J concluded that s.25 did not itself provide a cause of action or head of claim, a conclusion which neither party sought to challenge before us. Instead, as he considered in paragraph 122, it would be necessary if the conditions of s.25 are proved to establish a claim in contract or restitution. On the basis of his findings he considered such a claim could be established in either or both those categories. Given my conclusion that no request for the purposes of s.25 has been established it follows that at least the claim in contract must fail. The question then arises whether even in the absence of a request for the purposes of s.25 the Chief Constable is entitled to reimbursement by way of restitution. It was not suggested by counsel for the Club that the Chief Constable was precluded by the terms of s.25 from recovering the cost of special police services by way of restitution on some basis other than that prescribed by the section, a point to which I return in paragraph 51 below.
37. The original claim as formulated in the particulars of claim was plainly based on the provision by the Chief Constable of special police services at the Club's request pursuant to s.25. The alleged cause of action was in contract. The amount sought was the sum of £293,085.07, being the unpaid balance of 34 invoices for the total sum of £528,749.97 rendered, with one exception, in the period 14th August 2003 to 10th May 2005. The Club defended the claim on the footing, amongst others, that there had been no request and, therefore, no contract. The Chief Constable's reply averred that the right to reimbursement arose from s.25 Police Act. It was not alleged that the Chief Constable could recover the costs in the absence of a request under s.25. Nevertheless Mann J considered (paragraphs 125-128) the submissions of counsel for the Chief Constable that, even without a request from the Club, he was entitled to recover the cost of the special police services on a restitutionary basis.
38. Those submissions relied on the principles expressed in Goff & Jones on Restitution 7th Ed. paras 1-016 and 1-019 to 1-026. As Lightman J said in Rowe v Vale of White Horse [2003] 1 Ll.R 418 para 11:

"...there are four essential ingredients to a claim in restitution:

(i) a benefit must have been gained by the defendant;

(ii) the benefit must have been obtained at the claimant's expense;

(iii) it must be legally unjust, that is to say there must exist a factor (referred to as an unjust fact) rendering it unjust, for the defendant to retain the benefit;

(iv) there must be no defence available to extinguish or reduce the defendant's liability to make restitution."

In the commentary in Goff & Jones para 1-019 the authors add in relation to the first ingredient:

"...the common law originally concluded that a defendant could be said to have benefited from the receipt of services only if he had requested them. A true request will normally lead to the conclusion that the defendant who requested the services has contractually bound himself to pay for them. But a defendant who is not contractually bound may have benefited from services rendered in circumstances in which the court holds him liable to pay for them. Such will be the case if he freely accepts the services. In our view he will be held to have benefited from the services rendered if he, as a reasonable man, should have known that the [claimant] who rendered the services expected to be paid for them and yet he did not take a reasonable opportunity open to him to reject the proffered services. Moreover in such a case he cannot deny that he has been unjustly enriched."

39. Mann J found that all four of the principles set out by Lightman J were satisfied. His reasoning is clearly set out in paragraph 126 in the following terms:

"I find this analysis [the propositions set out in paragraph 38 above] helpful in the present case. If the contractual or quantum meruit arguments do not work, it helps to resolve the problems that otherwise might be said to arise from the apparent impasse between the club, who wanted SPS but had said they were not prepared to pay for what the police proposed, and GMP, who were willing to provide SPS but only on the basis of being paid more than the club expressed itself as willing to pay for. Neither party had had its position expressly accepted. The club has incontrovertibly received a benefit from the policing. As well as having the match properly policed on the ground, it was able to fulfil the requirements of the safety certificate and thus play its matches; thus the first requirement is fulfilled. The benefit was obtained at the expense of the police, who had to pay its officers (all relevant constables and sergeants would otherwise have been on rest days, so there was an additional definable payment burden, and otherwise the police were providing facilities and officers who could have been deployed elsewhere); the second requirement was fulfilled. The police could have withheld all policing in the absence of a clear agreement if they wanted to, but provided it so that the matches could go ahead; the police were entitled to treat officers outside the ground as providing SPS whether the club liked it or not; and the presence of the police, in their provided numbers, was necessary for the matches to be held; it would in my view be unjust if the club could retain the benefit of that without some payment; so the third requirement is fulfilled. And no other defence exists; so the fourth requirement is fulfilled. This restitutionary basis is therefore an alternative basis of claim."

40. Before Mann J counsel for the Club had sought to displace these principles on the footing that the Club had not acquiesced in or 'freely accepted' the special police services over and above those it had requested. He had relied on Bookmakers' Afternoon Greyhound Services Ltd v Wilf Gilbert (Staffordshire) Ltd [1994] FSR 723. In that case ("BAGS") the claimant promoted and arranged afternoon greyhound race meetings. It provided information to betting shops and the satellite broadcasting services supplied to betting shops also by the third defendant SIS. The first defendant Wilf Gilbert, a bookmaker subscribed to the SIS service but refused to pay BAGS for its service. BAGS claimed to recover from Wilf Gilbert on the basis amongst many others of unjust enrichment. It contended that Wilf Gilbert enjoyed, through its subscription to SIS, the benefit of its service and should pay for it. Wilf Gilbert contended that it should not be liable; it had always made it clear that it did not want the service provided by BAGS.
41. The claim of BAGS based on unjust enrichment was rejected by Aldous J. At page 143 he posed the question:

"Does the law impose a duty upon a person to pay, when he receives and uses a service knowing that it is not being offered free; when he makes it clear to the provider of the service that he does not want the service and that he will not pay for it?"

Aldous J answered his own question in the negative in these terms:

"When a party makes it clear to the provider of a service that he will not pay for it or does not want it, then it cannot be against the conscience of that man that he should refuse to pay for the service."

Later he added:

"If the provider of the service knows that the recipient does not intend to pay, he cannot complain if the recipient does not ultimately pay. In such circumstances, the law will not help him to obtain recompense unless he has some proprietory or contractual right."

42. Mann J considered that that case did not assist the Club. In paragraph 128 he said:

"Those [ie in BAGS] facts are different from those in the present case in a fundamental way. The club did not merely want some services which happened to come with some different but non-severable services which it did want. The club never said, and was not in a position to say, that it did not want the services and benefit of the officers as to which a dispute arises in this case. GMP was in a position to say what BAGS was not in a position to say, which is that the club must take the whole or none at all; and if the disputed services amounted to SPS then the club could not operate without them because otherwise it could not have staged its matches. The services of the disputed officers were not some unwanted accretion which the club could have done without; they were (on the facts as I have found them) a necessary matter which the club would have to have in order to be able to carry on its activities, both because it wanted the benefit of those services and because GMP would have been unlikely to have agreed to provide the services other than as a whole. The services of the "extra" officers were not something that the club did not want; they were something that the club did not want to pay for, which is different. Bookmakers Afternoon therefore does not assist the club."

43. The Club appealed from the conclusion of Mann J on this part of the case on the grounds that the judge had been wrong to conclude that the Club had obtained a benefit either because it had been freely accepted or was 'incontrovertible' and should not have distinguished BAGS. Counsel for the Club contended that any 'enrichment' his client might have obtained could not be unjust in view of the Club's clearly and repeatedly expressed refusal. As he pointed out this issue only arises if there is no implied request; but, in that event, no enrichment can be unjust. The Club made it clear that it did not want and would not pay for policing over and above the levels provided in the 2002/03 season.
44. There is no respondent's notice. The contentions of the Club were disputed by Counsel for the Chief Constable. He recognised that the issue of restitution only arose if there were no request for the purposes of s.25. But his submission was the same as on the issue of request, namely the Club did not refuse the higher level of policing only its liability to pay for it. In addition he contended that the unjust factor arose from the Club's acceptance of the higher level of policing.
45. I accept, as both counsel acknowledged, that this issue must be considered on the basis that there was no request for the special police services in dispute, either express or implied. Recovery is now sought by the Chief Constable on the basis of compliance with all four of the necessary ingredients for a claim in restitution as summarised by Lightman J in Rowe v Vale of White Horse [2003] 1 Ll.R 418. But the evidence at the trial and the primary focus of the arguments addressed to Mann J were directed to issues relating to request not these ingredients. One consequence is that there are no clear findings of primary fact in relation to all of them.
46. I start with the issue of benefit to the Club. This is the first essential ingredient. Mann J considered that it clearly existed because:

"As well has having the match properly policed on the ground, [the Club] was able to fulfil the requirements of the safety certificate and thus play its matches..."

This is true if the benefit is identified as the provision of special police services generally. But the dispute relates to the cost of policing above the manpower levels which were considered to be sufficient in the season 2002/03. The question is whether the Club obtained a benefit from the deployment of officers over and above those deployed in the earlier season. It is not self-evident that the extra manpower deployed in the seasons 2003/04 and 2004/05 was of extra benefit to the Club. There was no evidence directed to that question. It may be that policing at the lower level enjoyed in the earlier seasons would have been sufficient. It is idle to speculate.

47. As the passages in Goff & Jones on restitution to which I have referred make clear, a benefit from services rendered which is neither 'incontrovertible' nor requested may be established by their "free acceptance". But the concept of free acceptance, as explained in paragraph 1-019, requires that the recipient "did not take a reasonable opportunity open to him to reject the proffered services". The relevant services were the supply of special police services at the level, in excess of that provided in the season 2002/03, to which the Club objected. The Club was unable to reject those services unless it also rejected the services which it did want and had requested. To do that would have meant that the Club could not play their home matches in the Stadium at all. In my view it is clear that there was no free acceptance of the services in dispute because the Club were, in practice, unable to reject them alone.
48. It follows from my conclusion on 'free acceptance' that I also accept the submission for the Club that the judge was wrong to have distinguished the decision of Aldous J in BAGS. Mann J considered that (paragraph 128)

"The services of the "extra" officers were not something that the club did not want; they were something that the club did not want to pay for, which is different."

For the reasons I have given more than once, I consider that the judge's own conclusion at the earlier stages when reaching his primary findings of fact as to what the Club did and did not want was that the Club did not want the extra officers and did not want to pay for them. It was quite content with the special police services it had received in the season 2002/03. That entailed fewer officers and lower cost.

49. I do not doubt that if the Club did obtain a benefit then it was obtained at the expense of the Chief Constable. As Mann J put it in paragraph 126 of his judgment:

"The benefit was obtained at the expense of the police, who had to pay its officers (all relevant constables and sergeants would otherwise have been on rest days, so there was an additional definable payment burden, and otherwise the police were providing facilities and officers who could have been deployed elsewhere)".

50. The third necessary ingredient is an 'unjust factor'. Given the unusual circumstances of this case I do not think there is one. There was, as Mann J observed, an impasse. Neither Mr Mason nor the Club would back down. But whereas Mr Mason might, at least experimentally, have reduced the level of policing, for the Club it was all or nothing. Either they accepted policing at the level Mr Mason required and paid for it or they stopped playing their home matches at the Stadium. Even if policing at the higher level Mr Mason insisted on is regarded as a benefit to the Club I do not consider that the Club should be made to pay for it given the 'Hobson's Choice' with which it was faced.
51. The fourth ingredient is the absence of a defence. None was suggested by the Club. In the light of the conclusions to which I have come on the first and third of the ingredients it is unnecessary for me to consider this further. Nevertheless in any future case some consideration should be given to whether the police authority is entitled to claim restitution for the costs of supplying special police services otherwise than in compliance with the conditions imposed by s.25. It appears to me to be at least arguable that that section represents what Parliament considered should be the dividing line between the general obligations of the police at common law, for which they may not charge, and the special police services for which they may. To allow a restitutionary claim in circumstances outside those for which s.25 provides might be thought to be an illegitimate alteration of that boundary.
Summary of Conclusions
52. For all these reasons I conclude that (1) the special police services in question were not requested by the Club, nor (2) is the Chief Constable entitled to recover the costs of providing them by way of restitution. It follows that I would allow the appeal. We were not addressed on the monetary consequences of this conclusion or the effect of it on the order Mann J made. If the other members of the court agree with me then it will be necessary to invite counsel to agree the form of order required to give effect to our conclusions.

Lady Justice Smith

53. I have read the judgment of the Chancellor in draft and agree with it. I have now also read the judgment of Maurice Kay LJ, in which he disagrees with the Chancellor on the issue of restitution and therefore on the outcome of the appeal. I have now reconsidered my own position but I remain in agreement with the Chancellor that the appeal should succeed.
54. This judgment deals only with the issues on which Maurice Kay LJ disagrees with the Chancellor. These relate to the Chancellor's analysis in respect of two of the four essential ingredients of a claim for restitution as set out by Lightman J in Rowe v Vale of White Horse. These are whether or not the Club obtained a benefit from the deployment by the police of more police officers than the Club had requested. If there was such a benefit, the court would have to consider whether it was unjust for the Club to retain that benefit without paying for it. I have found the first question difficult to resolve in isolation and find it easier to consider both questions together, namely: did the Club receive a benefit for which in fairness and justice it ought to pay?
55. In 2002/3 and 2003/4, the Club asked for and was willing to pay for the level of special police services (SPS) which had been provided in the previous year. Its stance was that, if the Greater Manchester Police (GMP) wanted to deploy more officers than that, they should do so at their own expense, pursuant to their common law duty to keep the peace. The stance of GMP was that they were going to provide a greater number of police officers than that for which the Club was willing to pay because they considered that a higher level of policing was necessary. Further they expected the Club to pay for that higher level of provision even though it was unwilling to do so. As the Chancellor explained in his judgment, the GMP's stance at the trial was that the Club had made an implied request for provision as SPS of the greater number of officers. However, the claim in contract failed because there had been no implied request for the greater number. There had been an express request for the smaller number. The parties had never been ad idem as to the level of policing to be provided as SPS and paid for by the Club. The Club had never requested the extra officers and had said that it would not pay for them. If it did not request the extra officers, they were not provided as SPS and could not be charged for. It must follow that, as a matter of law, the extra police officers were deployed at the GMP's expense, pursuant to their common law duty to keep the peace.
56. There was another issue in play. In order lawfully to play its home matches, the Club needed a certificate issued by the local authority pursuant to the Safety of Sports Grounds Act 1975. The certificate imposed on its 'Holder' (in this case nominally the company which owned the stadium but in practice the Club) a general condition to control the sports ground and to take all necessary precautions for the reasonable safety of the spectators admitted to the sports ground. At Schedule A of the certificate it was provided that the Holder should secure, at its expense, the attendance of such number of police officers as, in the opinion of the Chief Constable, was sufficient to ensure the orderly behaviour of spectators. The words 'at its expense' imply that, in order to comply with the safety certificate, the Club would have to request, as SPS, the level of policing which the Chief Constable thought was sufficient to ensure the orderly behaviour of spectators.
57. There was no evidence that the Chief Constable had ever said that the greater number of officers which he intended to deploy were necessary because any fewer would not be sufficient to ensure the orderly behaviour of spectators. It may now be inferred that that was what he thought. However, the police never suggested that the Club would be out of compliance with its certificate if it requested only the lower level of SPS which it did in fact request. The Chief Constable, or Mr Mason acting on his behalf, could have taken the line, in negotiation, that the higher level of policing was required in order to comply with the certificate. If the Chief Constable had taken this line, the Club would either have had to pay for the higher level of policing, (as SPS), or challenge the Chief Constable's decision as to sufficiency by judicial review. But the issue was never confronted at the meetings. Now that it has been established that the Club only ever requested the lower number of officers as SPS, it would appear that the Chief Constable had been under a misapprehension as to the level of SPS requested. It seems that he mistakenly believed that the Club had (impliedly) requested the greater number and could be required to pay for them.
58. Mann J held that the Club had had a benefit because the matches had been 'properly policed'. That presupposes that they would not have been properly policed if it had not been for the presence of the additional officers. I am not prepared to assume that, objectively considered, that was so and do not think that, on the evidence, Mann J was entitled so to find. Mann J also held that the Club obtained a benefit because it was able to fulfil the requirements of its safety certificate and thus play its matches. I can see how that could be said to be a benefit to the Club. But, if as I have explained above, the Chief Constable was labouring under a misapprehension as to the level of SPS requested, I do not see why, in justice, the Club ought to pay for the extra officers. There was no suggestion that the Club had misled the police in any way. It should not, in my view, be inferred against the Club that they knew that the GMP were making a mistake and took advantage of it. The Club had made its position clear at all times. It was not requesting the extra number of officers as SPS. If the police wished to deploy a greater number than had been requested, there was a perfectly rational explanation for why they might choose to do so. They could do so in the exercise of the common law powers. Indeed this has been the arrangement in previous years.
59. Mann J thought that it was just that the Club should pay for all the policing that was in fact provided because the police could have withheld all policing in the absence of agreement. It is right that the police could have withheld all policing. The Chief Constable could have said that the number of police requested as SPS was not sufficient to ensure the orderly behaviour of spectators so that there would be no compliance with the safety certificate. But the police did not do so, apparently because they made a mistake as to their position, a mistake which the Club had done nothing to lead them into. I do not see why the Club should have to make good the GMP's mistake. I do not see why the Club should pay for services which it did not ask for and which the police provided of their own volition.
60. I would allow the appeal.

Lord Justice Maurice Kay :

61. To the extent that the Chief Constable's case turned on establishing a contractual entitlement, I agree that, for the reasons given by the Chancellor, it fails. However, I have come to a different conclusion on the cause of action in restitution. On that I agree with the analysis of Mann J.
62. It is common ground that the essential ingredients of a claim in restitution are those expounded by Lightman J in Rowe v Vale of White Horse and set out in paragraph 38, above. The ingredients giving rise to controversy in this case are the first (the obtaining of a benefit by the Club) and the third (the existence of an unjust factor if the benefit is retained by the Club). I shall consider these in turn.

The Benefit

63. Mann J concluded that the Club had "incontrovertibly" obtained a benefit which he described thus (at paragraph 126):

"As well as having the match properly policed on the ground, it was able to fulfil the requirements of the safety certificate and thus play its matches."

64. The Chancellor rejects this analysis on the ground that "the question is whether the Club obtained a benefit from the deployment of officers over and above those deployed in the earlier season" and "There was no evidence directed to that question".
65. I approach this issue from a different starting point. The Club can only play matches at the stadium if it has a valid safety certificate under the Safety of Sports Grounds Act 1975. The safety certificate in this case required the Stadium Company – in practice the Club – to secure at its expense the attendance of "such number of police officers as in the opinion of the Chief Constable is sufficient to ensure orderly behaviour of spectators". The validity of the certificate and its terms are not now in dispute. They were never challenged by way of an application for judicial review, nor was the conclusion of the Chief Constable as to what was a sufficient number of police officers. In these circumstances, I do not consider that it can be said that the Club did not obtain a benefit. It obtained what the Chief Constable opined was needed to ensure orderly behaviour. Without that, the Club could not lawfully stage the matches at the stadium. If the Chief Constable concluded that the deployment in previous seasons had become insufficient, the Club was stuck with that conclusion, absent a public law challenge. Match by match, the Club obtained the benefit of compliance with the safety certificate. I consider it unrealistic to distinguish between the officers deployed inside the stadium and those deployed outside the stadium but on land occupied by the Stadium Company or the Club. In my judgment, the absence of evidence about the merits of the enhanced deployment is neither here nor there.
66. The Chancellor also goes on to say that "There was no free acceptance of the services in dispute because the Club were, in practice, unable to reject them alone", that is without also rejecting the services which on any view it did want and had requested. As I read the judgment of Mann J, he did not expressly concern himself with "free acceptance". Moreover, I accept the analysis of Lightman J in Rowe (at paragraph 12) that "free acceptance" is relevant not to the first of the four requirements but as a way in which the second requirement can be deemed to be satisfied . (In my view it may also be relevant to the third requirement). It is also apparent from that passage in his judgment and from Goff and Jones, The Law of Restitution, 7^th edition, paragraphs 1-023 to 1-026, that, in that context, it is not always necessary to establish "free acceptance". The law also recognises the principle of "incontrovertible benefit" which can arise when a defendant has benefited, even though he did not request or freely accept the benefit. It seems to me that when Mann J said that the Club "has incontrovertibly received a benefit from the policing", he was applying the principle of incontrovertible benefit as the primary basis for his decision. In these circumstances, I do not find it necessary to engage further with the concept of "free acceptance". I confine myself to the observation that Mann J correctly found the first of the four requirements to be satisfied. I understand it to be common ground that, in that eventuality, the second requirement is also satisfied.

"Unjust Factor"

67. In relation to the third requirement, the question is whether there exists a factor rendering it unjust for the Club to have received the benefit of the extra officers without payment. Mann J said (at paragraph 126):

"The police could have withheld all policing in the absence of a clear agreement if they wanted to, but provided it so that the matches could go ahead; the police were entitled to treat officers outside the ground as providing SPS whether the Club liked it or not; and the presence of the police, in their provided numbers, was necessary for the matches to be held; it would in my view be unjust if the Club could retain the benefit of that without some payment … "

68. The Chancellor observes that whereas Mr Mason might, at least experimentally, have reduced the level of policing, for the Club it was all or nothing. Either they accepted policing at the level Mr Mason required and paid for it or they stopped playing their home matches at the stadium. He does not consider that the Club should be made to pay "given the 'Hobson's Choice' with which it was faced".
69. It seems to me that, in order to understand fully the analysis of Mann J on this issue it is necessary to keep in mind the passage of his judgment in which he explained why he considered that the BAGS case does not avail the Club. The relevant passage (paragraph 128) is set out in paragraph 42, above, of the Chancellor's judgment. Where I respectfully part company with the Chancellor and with Smith LJ on this issue is in the analysis of the cause and consequences of the impasse. Once the Chief Constable had refused to back down on the level of deployment required to ensure orderly behaviour – that being a matter entirely for him – the extra officers became, in the words of Mann J, "a necessary matter which the Club would have to have in order to be able to carry on its activities". At that stage it wanted them because it could not stage a home match without them. I do not consider this analysis to be inconsistent with Mann J's earlier finding of fact that "the Club did not want the extra officers". At that point he was describing a preference or desire. However, when the Chief Constable refused to give way, it wanted them not in the sense of preference or desire but because it needed them in order to avoid the unacceptable alternative of cancelling its home matches. Even if it had no sensible alternative, it knew that, by going ahead with the matches, the Chief Constable would deploy his officers in accordance with the decision that had been made as to what would be needed to ensure orderly behaviour of spectators. I agree with Mann J that, in those circumstances, it would be unjust for the Club to take the benefit of the extra officers without paying for it. Ultimately, this conclusion is a consequence of the terms of the safety certificate and the unchallenged decision of the Chief Constable as to the requisite deployment.
70. Mr Lewis seeks to avoid this conclusion by invoking the words of Scott Baker LJ in the Reading Festival case, at paragraph 50 (set out in paragraph 20 of the judgment of the Chancellor), that "each side has a veto". The submission is that the Chief Constable could have simply declined to deploy the extra officers, in effect forcing the Club to abandon the matches. However, having gone ahead with the deployment, rather than "exercising his veto" in that way, the Chief Constable cannot point to an unjust factor. I do not accept this submission. The reference in Reading Festival to reciprocal vetos is descriptive, not prescriptive. It does not encrust the general principles of unjust enrichment. A restitutionary cause of action was not considered in that case but it is a live issue on this appeal. Although restitution and unjust enrichment are not new concepts, they have spawned a huge literature in recent years. It is characterised by helpful exercises in exposition and taxonomy. However, the basic principles are and should remain uncomplicated. Each case is fact-sensitive. Ultimately, the task for the court is to identify what justice requires. On that, I am satisfied that Mann J reached the correct conclusion. It is appropriately based on "the big picture" rather than on the minutiae. It may be burdensome for the Club, but, having taken this particular benefit, it would be unjust if it did not make appropriate payment for it.
71. Accordingly, I would dismiss this appeal.