by Rebecca Williams. Oxford: Hart Publishing, 2010. 304pp. Hardcover. £50.00/$100.00. ISBN: 9781841134147.
Reviewed by Victoria A. Redd, The Journal Offices, University of Florida Levin College of Law, Email: reddva [at] law.ufl.edu.
Many in the United States do not think about how cases are decided in Europe;most Americans do not know what the English Unjust Enrichment Law is or how it compares to the French or EU law. A comparison of these four “legal systems” (including the U.S. courts) shows they are all different, which means that the way that each decides cases is also different. One place this is demonstrated is in determining the role the public and private law have to play in deciding cases in each European legal system.
In Europe there have been numerous discussions regarding the public and private law issues involving cases (such as WOOLWICH EQUITABLE BUILDING SOCIETY v. IRC, MINISTRE DE LA RECONSTRUCTION ET DU LOGEMENT C SOCIÉTÉ SUD-AVIATION, and Mannesmann AG v. HIGH AUTHORITY), mainly questioning the differences in the court systems and the claim amounts given out from their decisions. Some experts, such as Peter Birks feel that public and private law issues are difficult and want to stay in the private realm. This view is not always the norm though, and can be considered pragmatic, because it does not consider theoretically where the dividing line between public or private law is for a given case (Mitchell and Oliver 2009), where public bodies may require public laws putting them under a different set of rules. Without a theoretically clear dividing line, it is unclear what actually would prompt the use of public law; many times it can be just the litigants' preference for a certain type of public law procedure.
Private law usually reflects property ownership or employment issues, cases that involve an individual. Until recently, jurisdiction was clearer, and cases were decided on ahead of time to be only private or only public. Now there are two hybrid models being used to determine where to draw the public and private line. These two models together are known as remedies jurisprudence (or “natural procedural autonomy” (Galetta 2010) if most of the responsibility is given to the Members States). This concept is mapped out by van Gerven in order to show the division of labor between the European Court of Justice (ECJ) and the national courts (p.501). Van Gerven further defined the concepts of the terms starting with rights being legal positions, remedies being classes of action, and procedures being what govern the classes of action and uphold the legal positions. Even a simple definition like this is confusing. Birks defines van Gerven’s concept of “remedy” even better as an “actionable story,” and many of Birks's conclusions are similar to van Gerven’s. How do the hybrid models help us understand the difference between public law and unjust enrichment? And, why is this important? [*473] How does law work in England, France, and also the European Union (EU) when looking at cases that involve both the private and public laws?
Individuals who have an interest in European Law and these questions would be better informed if they examined Rebecca Williams’s book, UNJUST ENRICHMENT AND PUBLIC LAW: A COMPARATIVE STUDY OF ENGLAND, FRANCE AND THE EU. At first glance the reader may think that this is a complicated textbook, but it is actually a Ph.D. thesis that has been transformed into a three-part book. It also includes several tables at the front and an index at the back of the book. Williams, currently a CUF Lecturer at the University of Oxford, has taken the laws of England, France, and the EU and explained the interactions that take place when deciding cases under these laws. Although scholarly in its effort (with its three-point agenda) and at times an awkward read, the book clearly presents the different types of law that involve unjust enrichment and public law. The book is also an attempt for Williams to debate that the problem for most courts in deciding a case is that they choose to go about it either from a solely public or private stance, when both are relevant.
Williams metes out the discussion in three parts where unjust enrichment and public law intersect going over representative cases. Part 1 “Unjust Enrichment and Public Law in England and Wales” has an additional five points, with a question and answer format that seems more detailed than Williams needs to make it so much so that she starts out Part 2 calling Part 1 “too elaborate” and giving an offhanded apology (p.167). Part 2, “Unjust Enrichment and Public Law in France,” ends the question and answer format and simply explains that the way that England decided a case was by Diceyan Orthodoxy, better defined by “examin[ing] the rules concerning restitution and unjust enrichment and then apply[ing] them to public bodies,” the complete opposite of how France does it (pp.167-68). The Conseil d’Etat, put in place by Napoleon in 1799, has long recognized a difference between public and private law by having two separate branches of law — administrative courts or “ordre administratif” and ordinary courts or “ordre judiciaire.”
The administrative courts were further split in the nineteenth century to create the lower courts (where ordinary judges presided) for certain administrative law; by 1872, the Tribunal des Conflits was created to interpret differences in dealing with public and private issues. The conflict in these two jurisdictions occurs when the Cour de cassation, the highest level ordinary court, and the Conseil d’Etat cannot agree regarding whether the case fits public or private law — which in turn requires an expert judge, who is trained in either public or private law depending on what is needed. Williams quotes Charles Debbasch and Jean-Claude Ricci, two experts who describe the public-private divide as “oscillating” between “two poles” (p. 169). Finally, in Part 3, “Unjust Enrichment and Public Law in the European Union” concludes by suggesting that “a proper framework for analysis” involving unjust enrichment should be established by the ECJ.
Williams’s main focus of unjust enrichment and public law remains consistent throughout the book, each part giving a definition for the issues in relation to the location it represents. [*474] Unjust enrichment, simply defined, means: a benefit by chance, mistake or another’s misfortune for which the one enriched has not paid or worked and morally and ethically should not keep (e.g., LAW.COM); in England it wasn’t until recently that there was even a means of restitution (courts relied on “unjust factors” instead of “enrichment without cause”); and in France the court actually is party to the dispute under the “absence of basis” approach.
The problem here, however, is that those readers who are better informed will benefit over others, because they are aware of the quasi-contract concept. Readers would be better served by. Hunt who defines “unjust factor” as essentially a list of reasons for reversing enrichments; and, the “absence of basis” as basically a list of reasons for keeping enrichments. I am unsure why Williams chose the order of the laws (i.e., first section England & Wales, second section France, and third section EU) that she talks about in her book. She concludes at the end of Part 2 that it is the EU law that has had the greatest effect on the other two laws. This is so significant that I do not understand why Williams did not start with the EU law and write from there. (Did Williams start with England and Wales because this was her Ph.D. thesis? Were the last two brief parts of her book just what she added to complete the book?).
The biggest protest that Williams has is “the division between public and private law” (p.275), unfortunately this has been going on for almost 60 years (p.283). Her chief problem is that it is unfair for a court to pick either public or private law and not both to handle a case, especially when it is usually relevant. Williams debates that even if you use the appeals system, this just leads to a “wasted opportunity” as in Deutsche Morgan Grenfell (p.277). She stresses that, obviously, this is due to a lack of understanding at how the hierarchy should work. She clarifies that if the judges had looked at cases from both the perspectives of public and private law they would have known that it was an unjust error and possibly seen that following only the principles laid out in previous cases, such as in O’REILLY v. MACKMAN or CLARK v. UNIVERSITY OF LINCOLNSHIRE AND HUMBERSIDE, would be the answer to prevent a distortion of a proper decision. Determining the reasons for restitution and knowing the urgency of each will afford availability to both sides of the law to decide a claim and will bypass the “absence of basis” approach (a conclusion that Birks stated was the answer). The French showed us how to do this, and we need only to follow their lead — first, move all cases to the public bodies and then accommodate them in private law courts, taking into account the reason for restitution. Finally Williams adds that the EU handles cases that may involve questions of its own institutions and these need to go through a “wrongs-based vehicle” via Article 340 as presented in her book (pp.230, 281).
Williams’s final point is that “[w]e need a public law of unjust enrichment” (p.283). This, she concludes, based on her previous discussion, would be “a proper framework for analysis” and lead to a “cause of action” (p.283). These statements are more directed at England and Wales and definitely not the EU which is unlikely to change. International attorneys or judges who [*475] want to update their knowledge of the current process of law should give Williams’s book a once-over.
Article 340 Treaty on the Functioning of the European Union.
Birks, Peter. 2000. “Rights, Wrongs and Remedies,” OXFORD JOURNAL OF LEGAL STUDIES 20 (Spring): 1-37.
Debbasch, Charles and Jean-Claude Ricci. 2001. CONTENTIEUX ADMINISTRATIF, Paris: Dalloz.
Facts about Conseil d’Etat: Role of Napoleon, as Discussed in France: The Consulate, http://www.britannica.com/facts/5/465271/Conseil-d-Etat-as-discussed-in-France.
Galetta, Diana-Urania. 2010. PROCEDURAL AUTONOMY OF EU MEMBER STATES: PARADISE LOST?: A STUDY ON THE “FUNCTIONALIZED PROCEDURAL COMPETENCE” OF EU MEMBER STATES. New York: Springer.
Hunt, Chris D.L. 2009. "Unjust Enrichment Understood as Absence of Basis: a Critical Evaluation with Lessons from Canada," OXFORD UNIVERSITY COMPARATIVE LAW FORUM 6,
Mitchell, Charles and Peter Oliver. 2009. “Unjust Enrichment and the Idea of Public Law,” in PHILOSOPHICAL FOUNDATIONS OF THE LAW OF UNJUST ENRICHMENT Robert Chambers, Charles Mitchell and James Penner eds. Oxford University Press.
Oxford Law: Profile of Rebecca Williams, http://www.law.ox.ac.uk/people/profile.php?who=rebecca_a.williams.
Unjust Enrichment, LAW.COM, at http://dictionary.law.com/Default.aspx?selected=2197.
Van Gerven, Walter. 2000. “Of Rights, Remedies and Procedures,” in COMMON MARKET LAW REVIEW. 37: 501-36.
CLARK v. UNIVERSITY OF LINCOLNSHIRE AND HUMBERSIDE,  1 WLR 1988.
DEUTSCHE MORGAN GRENFELL v. COMMISSIONERS OF INLAND REVENUE: First Instance:  EWHC 1779;  4 All ER 645; Court of Appeal:  EWCA Civ 78;  Ch. 243; House of Lords:  UKHL 49;  1 AC 558.
MINISTRE DE LA RECONSTRUCTION ET DU LOGEMENT C SOCIÉTÉ SUD-AVIATION, and MANNESMANN AG v. HIGH AUTHORITY (1961) II JCP 12255 note J de Lanversin, (1961) RDP 655.
O’REILLY v. MACKMAN,  2 AC 237.
WOOLWICH EQUITABLE BUILDING SOCIETY v. IRC  AC (HL).
© Copyright 2011 by the author, Victoria A. Redd.