for those fees, in logic, and in law, it must follow that, where the adjudicator has felt it necessary to sue the party which has not been ordered to pay his fees by virtue of the decision, that party must have a legal entitlement pursuant to the tripartite agreement, contractually, to recover what it has been required to pay the adjudicator.” The court then proceeded to set out an alternative position that where two parties owe a common liability and the party who is not primarily liable to pay discharges that liability, then the paying party is entitled to reimbursement by way of a claim for restitution so as to avoid unjust enrichment.13 Unjust Enrichment and Bonds Where a party (for example, an Employer) makes a call on a performance bond which is paid by the bank then the question arises whether the other party (the Contractor) can claim part of the monies back from the Employer under the basis of unjust enrichment if it can show that the losses incurred by the Employer were less than the monies paid under the bond. It is well established that a claim can be made under an implied term that the beneficiary will account to the other party where it has been overcompensated. 14 As Staughton LJ stated in the Cargill case: “The general situation as to performance bonds is that they provide that the bank or the other party giving the bond has to pay forthwith, usually on demand. But subsequently there has to be an accounting between the parties to the commercial contract”. Recently in Wuhan Guoyu Logisitics Group Co Ltd v Emporiki Bank of Greece15 Tomlinson LJ held that, in addition to a right to claim under an implied term, there was also a right to claim based on equitable principles of restitution to prevent unjust enrichment. However, it may be beneficial for a contractor to formulate its claim based on an implied term to account rather than as a claim for unjust enrichment. In many construction contracts there are often caps on liability; for example, a cap on delay damages. In cases where the Employer’s losses exceed the cap then a claim for unjust enrichment may fail where the Employer can show that its actual losses exceed the cap and therefore it has not been unjustly enriched by the calling on the bond.16 In such a case the contractor will be better of framing its claim as an implied term to account having regard to the terms of the underlying contract.
Endnotes 1Unjust Enrichment, Davenport and Harris (1997) at page 1.s 2 Benedetti v Sawaris [2013] UKSC 50 at para 10. 3 [2015] UKSC 66. 4 Arnold v National Westminster Bank [1989] 1 Ch 63 at 67. 5 Lipkin Gorman v Karpnale Ltd [1991] 2 AC 58. 6 Niru Battery Manufacturing Co v. Milestone Trading Ltd [2003] EWCA Civ 1446. 7 Claymore Services Ltd v Nautilus Properties Ltd [2007] EWHC 805.