Lloyd's Maritime and Commercial Law Quarterly


Henry Cooney*

Fenchurch Advisory Partners v AA
Two parties are in negotiation. The claimant does work for the benefit of the defendant in anticipation of concluding a contract. The negotiations break down or simply fizzle out and no contract is agreed. Does a claim lie against the defendant in respect of the work? In the absence of a binding agreement, one might think that the answer to this question is “no”. But in a number of these “anticipated contract” cases, including Fenchurch Advisory Partners v AA Ltd,1 the claimant was successful.2 Commentators explain these cases as examples of restitution for failure of basis.3 They argue that it is the law of unjust enrichment that gives the claimant a remedy. My aim is to show that caution is needed. It is in this area that the tendency of the law of unjust enrichment to gobble up whole swathes of the law of contract is most unsettling.
In Way v Latilla,4 the claimant provided services to the defendant in anticipation of a contract under which the claimant would get a share in a gold-mining concession. Although no express contract was agreed, the House of Lords awarded the claimant £5,000 on the basis that there existed between the parties an implied contract for reasonable remuneration. Professor Birks criticised this reasoning as unreal and said that the outcome was best understood as an award of restitution to prevent unjust enrichment.5 A century later, Birks’ argument was put to the test in Fenchurch. The facts were much the same as Way v Latilla.

* Adjunct Research Fellow, UWA Law School, Perth; Solicitor, State Solicitor's Office of Western Australia. I am indebted to Rob Stevens and Tim Pilkington, both of whom gave me access to forthcoming research of their own, and to Tim, Elise Bant and Harry Sanderson for their helpful criticism. The views throughout, as well as any errors, are mine alone.
1. [2023] EWHC 108 (Comm).
2. In addition to the cases discussed throughout, see Sabemo Pty Ltd v North Sydney Municipal Council (1977) 2 NSWLR 880; Marston Construction Co Ltd v Kigass Ltd (1989) 46 BLR 109; (1989) 15 Con LR 116; Easat Antennas Ltd v Racal Defence Electronics Ltd [2000] All ER (D) 845; Vedatech Corp v Crystal Decisions (UK) Ltd [2002] EWHC 818 (Ch). Although the availability of a claim in unjust enrichment was not a focus on appeal, Benedetti v Sawiris [2013] UKSC 50; [2014] AC 938 was also one of these cases.
3. A Burrows, “Free Acceptance and the Law of Restitution” (1988) 104 LQR 576, 595–598; E McKendrick, “Work Done in Anticipation of a Contract which does not Materialise”, ch.11 of W Cornish, R Nolan, J O'Sullivan and G Virgo (eds), Restitution Past, Present and Future: Essays in Honour of Gareth Jones (Oxford, 1998); K Barker, “Coping with Failure—Reappraising Pre-Contractual Remuneration” (2003) 19 JCL 105, 113–116; J Edelman, “Liability in Unjust Enrichment Where a Contract Fails to Materialise”, ch.8 of A Burrows and E Peel (eds), Contract Formation and Parties (Oxford, 2010); R Havelock, “Anticipated Contracts That Do Not Materialise” [2011] Restitution Law Review 72.
4. [1937] 3 All ER 759.
5. P Birks, An Introduction to the Law of Restitution, rev. edn (Oxford, 1989), pp.271–272.


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