AN CHÚIRT UACHTARACH
THE SUPREME COURT
S:AP:IE:2024:000064
[2025] IESC 24
Murray J.
BETWEEN
BANK OF IRELAND MORTGAGE BANK U.C.
Plaintiff/Respondent
AND
BRIAN MURRAY
Defendant/Appellant
AND
ATTRACTA MURRAY
Defendant
JUDGMENT of Mr. Justice Maurice Collins delivered on 4 June 2025
1. I agree with the judgment of Dunne J and with her proposed disposition of this appeal.
2. Given that the Court is divided as to the outcome of the appeal, I wish to explain my position briefly. For that purpose, I gratefully adopt the detailed statement of facts set out in Dunne J's judgment.
The Elements of a Claim in Unjust Enrichment
3. There was no dispute as to the essential elements of a claim in unjust enrichment. The claimant must establish three things: (1) that the defendant has been enriched; (2) that such enrichment was at the expense of the claimant and (3) that such enrichment was "unjust". Where these elements are established, the claimant is presumptively entitled to a remedy, normally that of restitution - the return of the enrichment to the claimant. However, the defendant may be able to establish a defence by demonstrating that there is some reason why the claimant should be denied a remedy: see Corporation of Dublin v Building and Allied Trade Union [1996] 1 IR 468, per Keane J (as he then was) at 484, as well as the discussion in Mitchell et al, Goff & Jones on Unjust Enrichment (10th ed; 2022) ("Goff & Jones") at §§1-14 - 1-37.
4. As Keane J observed in Corporation of Dublin v Building and Allied Trade Union, there is seldom any real difficulty in determining elements (1) and (2). That is certainly the position here. Mr Murray was clearly enriched and equally clearly that enrichment was at the expense of the Bank. The evidence of such enrichment here went much beyond the fact that the 2007 loan proceeds were paid into a joint account held by Mr Murray with his wife (as to the significance of which, see Goff & Jones, §4-76). The High Court Judge (Baker J) found generally that Mr Murray and his wife "had the benefit of the monies advanced by the Bank" ([2019] IEHC 234, §159) and found specifically that the loan proceeds had been applied to discharge tax liabilities of Mr Murray, to fund a payment to the Department of Family and Social Affairs in respect of a scheme for his benefit and to make a payment to a firm of solicitors to pay for a field purchased by him (§§159-168). In addition, the 2007 loan was used to pay off the balance of the earlier loan (the 2003 loan) which had been used to purchase an apartment in Spain for Mr Murray and his wife. Payments were also made to the benefit of Mr Murray's children. [1]
5. As to element (3) - whether an enrichment is "unjust" - the claimant must establish an "unjust factor", a legally recognised factor that makes the defendant's enrichment unjust: Goff & Jones, §1-25. Unjust factors are recognised "because they establish that the claimant did not intend the defendant to receive a benefit in the circumstances, either because the claimant never had an intent to benefit the defendant in those circumstances or the intent was vitiated or qualified in some way": Dargamo Holdings Ltd v Avonwick Holdings Ltd [2021] EWCA Civ 1149, [2022] 1 All ER (Comm) 1244 ("Dargamo") per Carr LJ at §58. An unjust enrichment claim is not based "on a wide ranging and open-ended assessment of fairness (or justice) in the round" (Dargamo, §59) and "does not create a judicial licence to meet the perceived requirements of fairness on a case-by-case basis: legal rights arising from unjust enrichment should be determined by rules of law which are ascertainable and consistently applied" (Investment Trust Companies v Revenue and Customs Commissioners [2017] UKSC 29, [2018] AC 275 ("Investment Trust Companies"), per Lord Reed JSC, §39). Rigour in identifying the necessary "unjust factor" avoids the danger of "palm tree justice": Corporation of Dublin v Building and Allied Trade Union, pages 483-484.
6. Here, again, there is no difficulty in identifying a recognised "unjust factor". On the facts as found by the High Court, the Bank advanced the 2007 loan - and thereby enriched Mr Murray - in the mistaken belief that Mr Murray was a co-borrower, who would therefore be jointly and severally liable to repay that loan and in the mistaken belief that the 2007 loan would be secured on the Murrays' family home. According to Goff & Jones, "[t]he starting point is now that any causative mistake of fact or law, spontaneous or induced, can qualify; the old rule against recovery for mistakes of law has been abandoned; and the courts have eschewed any requirement for the mistake to be a 'liability mistake', a 'fundamental mistake', or a mistake of any other particular type" (§9-01). Here, the Bank's mistake was one of fact and it was indeed fundamental to its decision to agree to the 2007 loan: it is perfectly clear that, if it had been aware of the true position, the Bank would not have made the 2007 loan. Mr Murray was, after all, the sole earner and it was by reference to his income as a fisherman that the Bank made its credit decision. Far from being spontaneous, the Bank's mistake was induced by the actions of Mrs Murray - not merely her actions leading to the making of the 2007 loan but also those relating to the 2003 loan. As of 2007, as far as the Bank was concerned, Mr and Mrs Murray were existing borrowers, with a performing loan secured on their family home. That mistaken belief - also the product of Mrs Murray's actions - was a significant factor in the Bank's decision to make the 2007 loan.
7. The facts here are singular. If - as the High Court found to be the case - Mr Murray was not a party to either loan, it necessarily follows that the Bank was systematically misled, including by the furnishing to it of documents apparently signed by Mr Murray, where his signature was apparently witnessed by an independent third party (in one instance, a solicitor and, in another, a Commissioner for Oaths) but which, it transpired, he had not seen, still less signed (see the more detailed account in the judgment of Dunne J, at §§133 and following). Whatever Mrs Murray's motivation - and that is an issue to which I will return - the effect of her actions on the Bank was clear: it agreed to make a substantial loan in the mistaken belief that the borrowers were Mr and Mrs Murray (as, so the Bank believed, they had been for the 2003 loan) and that the loan would be secured on the security that the Bank believed it already had, namely a charge on the Murrays' family home, a charge already registered on the relevant Land Registry folio. Had the Bank been aware of the true position, it would not have advanced the loan. [2]
Is there a basis for refusing restitution here?
8. Against this backdrop of a clear and fundamental mistake on the part of the Bank, and consequent enrichment on the part of Mr Murray, is there any reason why Mr Murray should not have to make restitution to the Bank? In their joint judgment, Woulfe and Hogan JJ identify three such reasons. First, they suggest, the Bank was a party to the wrongful conduct and itself engaged in wrongful conduct which, it is said, amounts to a "disqualifying circumstance". Second, it is said that to permit recovery against Mr Murray would be contrary to the public policy underlying the Consumer Credit Act 1995 ("the 1995 Act"). Third, and finally, it is said that Mr Murray has a change of position defence.
9. As I shall explain, I do not agree that Mr Murray has any such defence. However, before addressing my colleagues' analysis further, it is important to note that, just as an unjust enrichment claim is not based "on a wide ranging and open-ended assessment of fairness (or justice) in the round" (Dargamo, §59) or the exercise of "judicial licence to meet the perceived requirements of fairness on a case-by-case basis", so too must any defence to such a claim be based on "rules of law which are ascertainable and consistently applied" (Investment Trust Companies, §39). Once the necessary elements of a claim have been made out, the court does not have a broad discretion to deny a claimant a remedy, based on its assessment of fairness or justice. It is not at large. The correct approach was articulated by Lord Goff in Lipkin Gorman (A Firm) v Karpnale Ltd [1991] 2 AC 548, in which a firm of solicitors sought restitution from a gambling club in which one of its partners had spent a substantial amount of the firm's monies:
"I accept that the solicitors' claim in the present case is founded upon the unjust enrichment of the club, and can only succeed if, in accordance with the principles of the law of restitution, the club was indeed unjustly enriched at the expense of the solicitors. The claim for money had and received is not, as I have previously mentioned, founded upon any wrong committed by the club against the solicitors. But it does not, in my opinion, follow that the court has carte blanche to reject the solicitors' claim simply because it thinks it unfair or unjust in the circumstances to grant recovery. The recovery of money in restitution is not, as a general rule, a matter of discretion for the court. A claim to recover money at common law is made as a matter of right; and even though the underlying principle of recovery is the principle of unjust enrichment, nevertheless, where recovery is denied, it is denied on the basis of legal principle" (578C-E).
10. In my view, this passage represents the law in this jurisdiction also. It follows that, if the Bank is to be denied a remedy, a recognised defence must be established by Mr Murray, on whom the burden of proof lies for that purpose. Furthermore, even where the elements of a defence appear to be made out, it may also be necessary to consider whether it would be proportionate to withhold a remedy: Patel v Mirza [2016] UKSC 42, [2017] AC 467, per Lord Toulson JSC at §120 (in the context of considering a defence of illegality).
(1) Should the Bank be denied a remedy on the basis that it was a "party" to the wrongdoing here?
11. The argument that the Bank should be disqualified from a remedy by reason of its conduct appears to have been advanced for the first time in this Court. Broad claims were made of systematic malpractice by the Bank which, as Dunne J explains in her judgment, have no basis in the evidence. What is left, and what this argument turns on, is the fact that the Bank's branch manager purported to witness Mr Murray's signature on a document relating to the 2007 loan, a Confirmation of Marital Status dated 10 May 2007, which, the High Court Judge found as a fact, Mr Murray had not signed: [2019] IEHC 234, §§133-139.
12. In their judgment, Woulfe and Hogan JJ express the view that this conduct - as they put it, the making of a "deliberate false representation of fact" by the branch manager - "involved a significant degree of wrongful conduct on the part of the Bank" and meant that the Bank became "a party" to the "overall deception", such that it would "make the Court virtually an accessory" to the wrongful conduct to grant a remedy to the Bank. Their judgment makes repeated references to "fraud" and "forgery".
13. That is strong language indeed, particularly in circumstances where no such findings were made in the High Court. In none of the three judgments given by the High Court Judge did she make any findings of wrongdoing on the part of the Bank or, for that matter, any findings of "forgery" or "fraud." That may be, as Binchy J suggested in his judgment for the Court of Appeal, because Mrs Murray did not give evidence and effectively did not participate in the hearing in the High Court. But, whatever the reason, the fact is that the High Court refrained from making such findings and, in my view, it is not appropriate for this Court to make findings of this kind for the first time in this appeal. That is particularly so when Mrs Murray was not a party to the appeal before this Court. Her motivation and intentions are unclear and, in the circumstances, it does not appear to me to be appropriate to impute to her an intention to defraud the Bank.
14. In any event, I do not, with respect, agree with my colleagues' characterisation of the conduct of the Bank. In the first place, the Confirmation of Marital Status was an internal Bank document and the requirement that the signature of the borrowers should be witnessed by the "mortgage advisor" was an internal Bank requirement (while the document is stated to be for the purpose of compliance with the Family Home Protection Act 1976, it is not a consent for the purposes of section 3 of that Act). Surprising as it may appear, there does not appear to be any statutory or regulatory requirement that lenders must meet with borrowers before agreeing a loan or requiring loan documentation to be executed in the presence of lenders. That is not to suggest that the Confirmation of Marital Status was unimportant - it clearly was an important part of the Bank's loan procedure - but it is not the case that, by stating that he had witnessed Mr Murray's signature when he had not, the branch manager was bypassing or subverting any statutory or regulatory requirement.
15. Secondly, and fundamentally, to the extent that there was wrongful conduct - whether characterised as fraud, deception or otherwise - the Bank was not a party to it. Rather, it was the victim of it. The Bank was not aware that Mr Murray was not, in fact, a co-borrower. If it was, it would not have proceeded. That is not a matter of controversy. It proceeded on the basis of mistake and Mr Murray was a beneficiary of that mistake, insofar as he benefitted directly from the 2007 loan (as he had benefitted from the 2003 loan). Insofar as the branch manager purported to witness Mr Murray's signature on the Confirmation of Marital Status, he was wrong to do so but he had no reason to suspect - and it was not put to him in cross-examination that he had any reason to suspect - that Mr Murray's signature on the form was not genuine. Insofar as it can be said that the branch manager made a "false representation of fact", it was one effectively made by the Bank to itself, not to any third party and it was not made for the purpose of assisting Mrs Murray in any deception of the Bank, for the simple reason that the branch manager, and the Bank, were wholly unaware of any such purpose (if that indeed was Mrs Murray's purpose). The branch manager was, no doubt, attempting to accommodate the Murrays and in particular Mr Murray who was, the evidence made clear, frequently away at sea (a phenomenon that would have been well-known to the branch manager); certainly, there is no suggestion in the evidence that the branch manager understood himself to be facilitating the deception of the Bank. He had been writing to the Murrays (or so he thought) at their home address in relation to the proposed loan. He had also engaged with Mr Murray's accountant in connection with that loan. There was nothing underhand or suspicious in his dealings with the Murrays and he had no reason to suspect that the many other documents which were furnished to the Bank in connection with the 2007 loan (and the documents previously provided in relation to the 2003 loan) had not been signed by Mr Murray. He was misled, as the Bank was misled.
16. My colleagues contrast the position of the Bank with the position of the underwriters in Carey v Ryan Limited [1982] IR 179. The underwriters, they suggest, erroneously parted with their money in good faith whereas the Bank did not. I do not agree. That the Bank erroneously parted with its money is not, as I understand it, in dispute. All of the evidence indicates that it did so in the good faith belief that it was advancing a loan to the Murrays jointly, secured on their family home. In my view, that the branch manager purported to witness Mr Murray's signature when he had not, in fact, witnessed it, is far too slight a basis on which to make a finding of bad faith on the part of the Bank.
17. Goff & Jones suggest that there may be circumstances in which an unjust enrichment claim based on mistake may fail where the claimant had reason to doubt that the facts were as he believed them to be: §9-18 and following. Even where a causative mistake is established, a claimant may be denied relief "on the basis that he responded unreasonably to his doubts, and so unreasonably ran the risk of error" (§9-40; see also §9-164). I did not understand such an argument to be made here and, in any event, there is no factual basis for it. The Bank did not, at any stage, doubt that Mr Murray was a party to the 2007 loan or that he had indeed signed the necessary documents in connection with that loan. What then is the legal basis for denying a remedy to the Bank? Even if the branch manager's conduct could fairly be characterised as "unconscionable" - and I agree with Dunne J that the evidence falls far short of sustaining such a judgment - why should the Bank be denied a remedy on that basis?
18. The law of unjust enrichment is not generally predicated on fault. Recovery on the ground of mistake is not fault-based and a claimant is not required to establish fault on the part of the defendant: Goff & Jones, §9-157. As regards fault on the part of a claimant, Goff & Jones state that it is a "long-standing assumption" in the law of unjust enrichment that a claimant will not be denied restitution for mistake merely because he was "negligent" (§9-163). On that basis, "as long as the claimant can show that he acted because of a mistaken belief as to some past or existing state of affairs, he will not be denied relief because that belief was the consequence of (for example) having carelessly forgotten or overlooked the true facts, or having carelessly made no inquiry or only an inadequate inquiry, despite adequate means of knowledge being available" (§9-163).
19. Of the many authorities referred to in Goff & Jones, the earliest is Kelly v Solari (1841) 9 M & W 54. There, the plaintiff sought to recover a payment made by an insurance company on foot of a policy that had lapsed. The fact that the policy had lapsed was obviously known to the company, but it had been overlooked in making the payment. All members of the court appear to have been of the view that, if at the time of payment the company was aware that the policy had lapsed but nonetheless intended that the payee should have the money in any event, the payee should be entitled to retain it. But, if paid under mistake, "it may, generally speaking, be recovered back, however careless the party paying may have been, in omitting to use due diligence to inquire into the fact" (per Parke B, at 59).
20. That passage has been cited many times subsequently, including in Barclays Bank Ltd v WJ Simms Son & Cooke (Southern) Ltd [1980] 1 QB 677 (a judgment of Goff J (as he then was)), Scottish Equitable plc v Derby [2001] EWCA Civ 369, [2001] 3 All ER 818 and Dextra Bank & Trust Co Ltd v Bank of Jamaica [2002] 1 All ER (Comm) 193 (in which the judgment of the Privy Council was given by Lord Bingham and Lord Goff). In Barclays Bank Ltd v WJ Simms Son & Cooke (Southern) Ltd, Goff J stated that the principal issue in Kelly v Solari was whether negligence on the part of the claimant precluded recovery, noting that it had been held that it did not, "a conclusion that has stood ever since" (686H-687A). In Scottish Equitable plc v Derby, the Court of Appeal (per Robert Walker LJ) drew a distinction between "deliberate waiver of inquiry or acceptance of risk" - where the payer has been put on inquiry but deliberately decides to accept the risk of proceeding - which will generally preclude recovery and "carelessness or negligence (even if it is termed gross negligence)" which does not exclude recovery (§§23-24). Finally, in Dextra Bank & Trust Co Ltd v Bank of Jamaica, the Privy Council rejected an argument that the relative fault of the parties was a relevant factor in the change of position defence. One of its reasons for doing so was "the fact that, in actions for the recovery of money paid under a mistake of fact, which provide the usual context in which the defence of change of position is invoked, it has been well settled for over 150 years that the plaintiff may recover 'however careless [he] may have been, in omitting to use due diligence'" (§45, citing Parke B in Kelly v Solari).
21. As Goff & Jones notes, the authorities all assume a claimant who was unconscious of the risk of error, that is to say a claimant who acted on the basis of an incorrect belief, without any conscious appreciation that his belief may be wrong or that there might be material circumstances of which he was ignorant (§9-164). That was the position here. The branch manager departed from the Bank's own procedures by accepting the Confirmation of Marital Status in circumstances where he had not witnessed Mr Murray's signature. That may certainly be said to have been careless or negligent and it was undoubtedly an important factor in the Bank proceeding with the loan. However, the branch manager had no reason to suspect that the signature was not genuine and, more generally, he had no reason to suspect that Mr Murray was unaware of the loan application and was not a party to it. The Bank did not deliberately waive its inquiry in the face of an identified risk. It is clear from the evidence that it did not identify any risk.
22. In my view, therefore, there is no basis for suggesting that the Bank was party to any wrongdoing here or that its conduct constitutes a disqualifying circumstance such as to warrant the denial of a remedy to the Bank.
(2) Would it be contrary to public policy to direct Mr Murray to make restitution?
23. That there may be circumstances in which it would be contrary to public policy to allow a lender to recover a loan made in breach of a statutory provision is clear: see, for instance, Haugesund Kommune v Depfa ACS Bank [2010] EWCA Civ 579, [2012] QB 549 and Wilson v First County Trust Ltd (No 2) [2003] UKHL 40, [2004] 1 AC 816 ("Wilson"). Where, for instance, allowing a claim in unjust enrichment would result in the enforcement of a transaction that a statue deems to be unenforceable, the court may refuse to allow the claim. In every case, the court must identify the policy of the statute and then decide whether that policy would be "stultified" if restitution were awarded: Goff & Jones, §2-22.
24. In addressing that question here, the starting point is that, on his own case, Mr Murray was not a party to the 2007 loan (or to the 2003 loan before that). That was accepted by the High Court. It follows that the Bank did not make any loan to Mr Murray. Any liability that Mr Murray has to make restitution to the Bank is therefore a non-contractual one. It is, rather, based on the fact that Mr Murray was enriched at the expense of the Bank by virtue of the loan made by the Bank to Mrs Murray, which was advanced in the mistaken belief that Mr Murray was a co-borrower with his wife (and that the loan would be secured on their family home).
25. I agree with Dunne J that the 2007 loan was at all times a "housing loan" for the purposes of the 1995 Act. It follows that the loan was governed by Part IX rather than Part III of the 1995 Act: section 29 of the 1995 Act. That is significant. Non-compliance with the requirements of Part III may in certain circumstances render a credit agreement, and any associated security, unenforceable: section 38 of the 1995 Act. Such unenforceability follows where there is non-compliance with section 30 (which requires that a credit agreement and any related guarantee be "made in writing and signed by the consumer and by or on behalf of all other parties to the agreement"), whereas in the case of non-compliance with any other Part III requirement, the court may nonetheless enforce the agreement where that appears to be "just and equitable", subject to being satisfied that the non-compliance was not deliberate and did not prejudice the consumer. However, there is no equivalent to section 38 (or, for that matter, section 30) in Part IX of the Act. The fact that the Oireachtas has not legislated to provide that non-compliance with the requirements of Part IX may render a housing loan unenforceable is clearly a matter of importance in this context.
26. Here, the evidence is that the Bank understood its obligations under Part IX and set out to comply with them. My colleagues refer to section 129 of the 1995 Act but it was not suggested in argument that the Bank's loan documents did not comply with the requirements of that section or any of the other requirements imposed by Part IX. The Bank's loan documents appear to have included all the required statutory notices and warnings (while my colleagues refer to cooling off periods and other "consumer safeguards", these appear to be relevant to Part III credit agreements rather than to Part IX housing loans) and the Bank sent copies of those documents - and subsequently sent regular account statements - for the attention of Mr Murray (and his wife) to their home address. The Bank intended at all times to comply with the requirements of Part IX and believed that it had done so. To that it may of course be said that the Bank failed to verify that Mr Murray was actually a borrower. That may be so but, as I have already observed, that does not appear to be a statutory or regulatory requirement: certainly, no such requirement was identified in argument.
27. Where a lender fails to comply with the requirements of Part III of the 1995 Act in relation to a credit agreement within the scope of that Part so that the credit agreement is unenforceable under section 38, it would certainly appear to be contrary to the policy of the Act to permit the lender to recover from the borrower by way of a claim for unjust enrichment. To permit recovery in such circumstances would indeed appear to "stultify" the policy of Part III of the 1995 Act. Wilson certainly suggests as much. It concerned a loan agreement entered into with a pawnbroker. The agreement breached regulations made under the Consumer Credit Act 1974 by failing to correctly state the credit amount. In those circumstances, section 127(3) of the Act provided that the court "shall not make an enforcement order". The House of Lords considered that the intention of Parliament was clear: it was intended that the lender would be left without recourse to the borrower in respect of the loan and it would be inconsistent with that parliamentary intention to allow the lender to make a claim for unjust enrichment (per Lord Nicholls at §49; see also §123 (Lord Hope) and §172 (Lord Scott)).
28. The facts here are materially different to those in Wilson. In contrast to Wilson, there is no legislative provision suggesting that the Oireachtas intended to exclude a remedy in unjust enrichment in the (exceptional) circumstances presented here. Section 38 of the 1995 Act has no application, either directly or by analogy: its application is limited to credit agreements, excluding housing loans. Nothing in Part IX of the 1995 Act suggests that non-compliance with its requirements was intended to deprive a lender of its remedy against a borrower and, if that be so, then less still can Part IX be said to provide a clear legal basis for holding that, in the particular circumstances here, a claim in unjust enrichment that a lender would otherwise be entitled to make ought to be precluded as a matter of public policy. It cannot plausibly be suggested that allowing such a claim in the circumstances here would "stultify" the policy underlying Part IX of the 1995 Act.
29. Neither is there any question of the 2007 loan being tainted by any form of illegality, as was the case in Patel v Mirza. The loan to Mrs Murray was a valid and effective loan and there was no legal barrier to the Bank making a loan to Mr Murray. There was no enforceable loan agreement with Mr Murray but that was because (unbeknownst to the Bank) Mr Murray did not know of, or agree to, the loan, not because of any lack of capacity or other illegality in relation to the transaction. Thus, the Bank's claim against Mr Murray is not one brought for the purposes of recovering benefits conferred under an illegal contract and no defence of illegality arises: Goff & Jones, §§35-01 - 35-02.
30. For all of these reasons there is, in my view, no public policy reason to refuse a remedy here.
31. In their judgment Woulfe and Hogan JJ suggest that granting a remedy in unjust enrichment to the Bank would effectively make Mr Murray liable in respect of a consumer loan (presumably a reference to a credit agreement coming within the scope of Part III of the 1995 Act) or a housing loan, even though the "necessary safeguards" contained in the 1995 Act were not complied with by the Bank. That, they suggest, would mean that a victim of a fraud or other wrongful conduct would be in a worse position than that of the bank customer and that a lender who had itself engaged in wrongful conduct could - whether intentionally or otherwise - effectively nullify all applicable consumer safeguards. I do not accept that the Bank engaged in wrongful conduct in the sense suggested here: the branch manager did not comply with the Bank's internal procedures but those procedures were intended for the protection of the Bank, not for the protection of borrowers. And certainly there was no question of the Bank intentionally proceeding as it did in order to nullify any protections arising under the 1995 Act. The Bank proceeded as it did because, and only because, it was misled into believing that Mr Murray was a co-borrower. If Mr Murray was a victim of his wife's conduct, he was also a beneficiary of it.
32. As for section 2 of the 1995 Act, I cannot see any basis on which the term "consumer" might properly be construed in the manner suggested by my colleagues nor is it apparent to me what would follow from such a construction in any event or how the Act would function on that basis. No teleological interpretation of "consumer" can alter the fact that Mr Murray was not a party to any credit agreement or housing loan or permit him to claim to be a party for some purposes but not for others. It was precisely on the basis that he was not a party to the loan made to his wife - which for the reasons explained by Dunne J was a Part IX housing loan and not a Part III credit agreement - that Mr Murray successfully defended the Bank's claim for debt. The Bank entered into a housing loan with Mrs Murray but Mr Murray was not bound by the terms of that loan because he was not a party to it. That being so, it is not open to Mr Murray to rely on the provisions of Part IX as if he had been such a party; still less is it open to him to ask to be treated as if he had been a party to a credit agreement within the scope of Part III.
33. In light of the conclusions I have reached above, it is not necessary to address the issue of whether it would be proportionate to deny the Bank a remedy against Mr Murray. Proportionality was considered in the context of the defence of illegality in Patel v Mirza and a number of factors were identified as potentially relevant in the judgment of Lord Toulson, including the seriousness of the illegality, the knowledge and intentions of the claimant, how serious a sanction denial of recovery would be, whether denial of relief would act as a deterrent to illegal conduct and whether denial of recovery would prevent the claimant from profiting from wrongdoing. It is difficult to see how a consideration of such factors might properly lead to the conclusion that it would be proportionate to deny a remedy to the Bank here but, as I have said, it is not necessary to reach a conclusion on that issue.
(3) Is a change of position defence available to Mr Murray here?
34. The third and final defence identified by Woulfe and Hogan JJ is that of change of position. In their view, Mr Murray changed his position by having the use of the moneys advanced by the Bank for his benefit for at least four years before coming to learn of the existence of the 2007 loan (Joint Judgment, §26). I agree that the evidence establishes that Mr Murray had the benefit of the Bank's moneys over a number of years: that is of course an essential element of the Bank's unjust enrichment claim. However, it is clear from the authorities that that is not in itself sufficient to establish a change of position defence. That is unsurprising: if it were otherwise, a change of position defence would be available in nearly all cases.
35. Murphy v Attorney General [1982] IR 241, which is referred to by my colleagues, is rather a special case, involving as it did the payment of income tax by taxpayers pursuant to statute which was presumptively constitutional and which, in the absence of any constitutional challenge, the Government was entitled to rely on as giving it good title to expend the revenues thus raised. In these circumstances, there were compelling reasons of public policy to limit the right of recovery of taxpayers. As Henchy J explained:
"For a variety of reasons it would be inequitable, if not impractical, to expect restitution. Each tax year involves a different group of taxpayers, if only because of the deaths of some taxpayers and the accession of new persons to the lists of taxpayers. Restitution could be effected only by means of a special statutory provision, which would involve the imposition of fresh taxation to meet what would become an unquantifiable number of claims with the passage of time. The primary purpose of an order of restitution is to restore the status quo, in so far as the repayment of money can do so. But when, as happened here, the State was led to believe, by the protracted absence of a claim to the contrary, that it was legally and constitutionally proper to spend the money thus collected, the position had become so altered, the logistics of reparation so weighted and distorted by factors such as inflation and interest, the prima facie right of the taxpayers to be recouped so devalued by the fact that, as members of the community, and more particularly as married couples, they had benefited from the taxes thus collected, that it would be inequitable, unjust and unreal to expect the State to make full restitution" (at 320).
Thus, there were special considerations at play in Murphy v Attorney General that are not present here.
36. According to Goff & Jones, the defence of change of position "generally applies where the benefit transferred from the claimant to the defendant has been irretrievably lost so that the courts must choose which of the parties should bear this loss" (§27-03). Again, it is important that the court should "proceed on the basis of principle, not sympathy, in order that the defence of change of position should not 'disintegrate into a case by case discretionary analysis of the justice of individual facts, far removed from principle'" (per Robert Walker LJ in Scottish Equitable plc v Derby, §34, citing Burrows, The Law of Restitution (1993), at page 426). The onus of pleading and proving a change of position defence rests on the defendant and the defence is available only if the defendant has suffered a detriment causally linked with the receipt of the relevant benefit and he must prove that these requirements are met: assertion, speculation or "vague generalities" will not do: Goff & Jones, §27-08.
37. Here, no change of position defence was pleaded by Mr Murray and the evidence led in support of the defence failed to satisfy the High Court Judge ([2019] IEHC 234, §§171-173). I am not persuaded that the High Court Judge made any error in her assessment of the evidence. The mere fact that Mr Murray expended the Bank's money does not "of itself render it inequitable that he should be called upon to repay, because the expenditure might in any event have been incurred by him in the ordinary course of things": Lipkin Gorman (A Firm) v Karpnale Ltd, per Lord Goff at 580F-G. He must have incurred "extraordinary expenditure" (as it was put in Dextra Bank & Trust Co Ltd v Bank of Jamaica), in the sense of entering into a transaction that he would not have entered into but for his enrichment: Goff & Jones, §27-12. Mr Murray's evidence was not to that effect: on the contrary, the essential thrust of that evidence was that Mr Murray believed that the expenditure that he and his wife engaged in was incurred in the ordinary course of things, funded by his earnings as a fisherman. On that basis, no change of position defence arises. It is therefore unnecessary to consider the nature of the expenditure in any further detail. That said, it is evident that at least some of the spending could not amount to a detriment because it did not reduce Mr Murray's overall wealth. Monies spent on the payment of debts (such as the balance owing on the 2003 loan and tax liabilities owed to the Collector General) or on the acquisition of assets (such as the site bought through his solicitors or the funding of additional social welfare benefits) would not qualify as a detriment for the purpose of a change of position defence: Goff & Jones, §27-14 ("Continuing Enrichment").
Conclusion
38. The Bank has established the necessary elements for its claim for unjust enrichment against Mr Murray. The Bank is therefore prima facie entitled to an order directing him to make restitution to it. For the Bank to be denied that remedy, a recognised defence must be established by Mr Murray, on whom the burden of proof lies. In my view, no such defence has been made out by him. Accordingly, for the reasons set out in this judgment, as well as the reasons given by Dunne J in her judgment, with which I fully agree, I would reject this appeal and affirm the orders made by the Court of Appeal.
[1] In these circumstances, I agree with Dunne J (and with the High Court and Court of Appeal) that Mr Murray's reliance on Primlake Ltd (In Liquidation) v Matthews Associates [2006] EWHC 1227 (Ch), [2007] 1 BCLC 666 and Stanbridge v Advanced Industrial Technology Corporation Ltd [2012] EWHC 1009 (Ch) is misplaced.
[2] I agree with Dunne J (and with the Court of Appeal) that, in these circumstances, the fact that Mrs Murray had a contractual liability to repay the Bank does not bar a claim for unjust enrichment against Mr Murray. The Bank never intended or contracted to allocate the entire risk of repayment to Mrs Murray - indeed the loan agreement was, on its face, wholly inconsistent with that position. The Bank's assertion that Mr Murray has a liability to it in unjust enrichment is not in any way inconsistent with the liability of Mrs Murray arising under the loan agreement. To the extent that the Bank's claim involves "leapfrogging", it is permissible leapfrogging in the circumstances here.