*** DISCONTINUED *** Unjust Enrichment

[jaguarsuk]

Okay, so I haven't received a claim form yet, but the behaviour of the other party leads me to strongly believe I will and so I want to know a couple of things.

I entered into an employment contract with "C" the salary was better with them, they expressed what a leap they were making to get me on board and that the head of their HR had to get board approval to pay me the rate given - very flattering indeed.

Prior to commencement with C I withdrew from that contract offer as my existing employer matched the salary to keep me, also flattering. Unfortunately C in error paid money into my bank which was equal to the difference of my previous salary to new one. I believed the money to be mine and happily got on with my life.

C later contacts me to tell me they have paid me money, I at that stage check my bank account to see whom paid the money and it turns out it was C. No problem thinks I, an explanation and offer to repay will solve this, all be it in instalments. Here's where the problems arise, C's HR Head flatly refuses and makes a demand for repayment much more quickly than I can afford. When I communicated that to him, he basically insinuates that I knew the money wasn't mine, which is not true and that I'm penalising their company by not wanting to pay it back.

Angry at being essentially branded a thief, I cease contact with him after he sends an email demanding full payment immediately.

The next morning after tempers have cooled, I email the Head of HR and the CEO of the company. I explain the lengthy process of recovery via the banking system or legally to the Head of HR in the hope of bringing about common sense and reaching an affordable agreement amicably. I explain the whole situation top the CEO.

I hear nothing from either.

A month latter I receive a letter from the Chief Financial Officer of their company, now quoting Practice Direction Pre-Action Conduct demanding full payment by a deadline. I obviously looked the PDPAC up to respond to him as this was a significant shift in the conversation to something more legally worded. I was able to point out a few errors being made by him, there were a couple of more letters, including adjusting my initial offer down after taking independent financial advice and then I heard nothing.

In January this year despite them not writing to me, I wanted to settle the matter and again wrote to them to seek an agreement at the affordable rate, also stating that had they just been reasonable they'd be getting their money back and yet because of their behaviour at that stage they have had nothing.

Fast forward to last week, I receive a letter from their "Legal Counsel," again citing PDPAC and threatening me with sanctions under it for failing to comply. Unfortunately the "Legal Counsel" hadn't fully complied with the requirement for the Claimants Letter set out in PDPAC, it stated incorrectly that it was my fault they had made the payment to me because I withdrew from the contract, they are seeking recover on the grounds of unjust enrichment and asking an unaffrodable repayment term of me.

I responded to challenge that I was at fault for the payment, corrected a lot of the misleading statements made referring to previous correspondence, put forward an affordable repayment plan and have yet to receive a reply.

Why I believe this will go to court? Throughout the behaviour of "C" has been obstructive, they have been insulting me and it is my belief that because they went to board level to agree my salary there's an element of dented pride at play here along with a desire to punish.

I have gone over and above my obligations, throughout I have been well aware that they will win a judgement for the amount owing and I'm thankful I dodged the bullet of working for them. However I have concerns and a question. In addition to my questions, anything that anyone else spots that they can advise on I'd be obliged.


My Concerns:

If I admit liability for the error it opens them up to further legal action for damages
Defending the claim might end up costing me more than just accepting it with the initial court fee.


My Question:

I can demonstrate to the court that throughout the claimant has failed to comply with PDPAC, what is the likelihood of the court sanctioning them under it? I'd ask for the sanction to be that costs and fees remain with the claimant, not included in the award.

[Kati]

Re: Unjust Enrichment

tagging [MENTION=51026]Ula[/MENTION] [MENTION=26290]mariefab[/MENTION] ... one for you??

[ULA]

Re: Unjust Enrichment

Hi [MENTION=104499]jaguarsuk[/MENTION], can I just ask a couple of questions in regard to your terms with "C".

Had you agreed a start date with them? If so did you inform them prior to the start date you were not going to be joining them?
Had you signed and returned your contract of employment to "C"?
I presume that they had gone through an induction process with them which included providing your bank details?
Did company "C" and your existing company pay on different days in the month?
How much did "C" pay you and what were the terms you originally offered to pay back this money i.e. amount and over what period?

I am going to tag [MENTION=85500]Peridot[/MENTION] who has knowledge of pre-action protocol whereas mine is more the employment side of this issue.

[Peridot]

Re: Unjust Enrichment

Hi jaguarsuk,
It would be helpful to hear your responses to Ula's questions, but looking at your original post it appears clear that company 'C' have paid you by mistake. You have received the money and the company are entitled to 'restitution' of the mistaken payment. Restitution in this context basically means returning the money to C.
In this claim the enrichment is the money you received and have evidently benefitted from. This is not about compensating C as with other areas of law but about restitution of C. The 'unjust' part of the claim would be the mistake that C made in paying you the amount under the incorrect assumption that the money was due to you.
In the circumstances they are able to claim unjust enrichment.
In my opinion this is a valid claim and I would not suggest 'fighting' or defending it. I don't see that you have a defence. It would be sensible to try and keep negotiations open. I don't know what offer to repay you made to C but it was clearly not sufficient. Bearing in mind you have now received a pay rise from your current employer would you be able to reconsider your previous offer of repayment by increasing the amount payable per month by reducing the term that you were offering to pay it over? I would suggest the sooner you settle this the better.
If you do receive court papers do make sure that you respond within the stipulated timescales to avoid a judgment being made against you which would be for the whole sum, usually payable within a very short time. You could also have a costs order made against you, so the sum you would then need to find more to settle the order than just the mistaken payment.
I suspect that if a sensible offer to return the monies is made, this would be accepted by C.
I'll wait to hear your response to the previous question but as I mention, in my opinion you do not have a defence to a claim for unjust enrichment. You can of course seek legal advice on this from a litigation specialist. You may be able to get a free half hour appointment or a reduced fee initial meeting, to explore any other options.

[jaguarsuk]

Re: Unjust Enrichment

Hi @jaguarsuk, can I just ask a couple of questions in regard to your terms with "C".

Had you agreed a start date with them? If so did you inform them prior to the start date you were not going to be joining them?
Had you signed and returned your contract of employment to "C"?
I presume that they had gone through an induction process with them which included providing your bank details?
Did company "C" and your existing company pay on different days in the month?
How much did "C" pay you and what were the terms you originally offered to pay back this money i.e. amount and over what period?

I am going to tag @Peridot who has knowledge of pre-action protocol whereas mine is more the employment side of this issue.

Hi Ula, thank you for your response.

I had a start date agreed, I informed them prior to the start date that I would not be starting.
I had signed and returned a contract.
I had not gone through an induction, upon return of contract they asked me to complete a form to send with it detailing bank details amongst other things.
My company paid on 28th and C on 29th.
£706.80 and repayment of £58.90 over 12 months.

[Peridot]

Re: Unjust Enrichment

Hi jaguaruk,
Did you receive a response from C when you said you would not be taking the position?
So you received an additional £700 approximately in the one month as I assume you also received your salary from your current employer? Am I correct in assuming that you no longer have the £700+? Can you reconsider the offer you have made to repay the amount? Or would you be able to pay a larger initial amount. Is there any other way you can 'borrow' the money to pay C back?
Sorry more questions I'm afraid, just trying to think of other ways you could possibly deal with this.

[jaguarsuk]

Re: Unjust Enrichment

Hi jaguarsuk,
It would be helpful to hear your responses to Ula's questions, but looking at your original post it appears clear that company 'C' have paid you by mistake. You have received the money and the company are entitled to 'restitution' of the mistaken payment. Restitution in this context basically means returning the money to C.
In this claim the enrichment is the money you received and have evidently benefitted from. This is not about compensating C as with other areas of law but about restitution of C. The 'unjust' part of the claim would be the mistake that C made in paying you the amount under the incorrect assumption that the money was due to you.
In the circumstances they are able to claim unjust enrichment.
In my opinion this is a valid claim and I would not suggest 'fighting' or defending it. I don't see that you have a defence. It would be sensible to try and keep negotiations open. I don't know what offer to repay you made to C but it was clearly not sufficient. Bearing in mind you have now received a pay rise from your current employer would you be able to reconsider your previous offer of repayment by increasing the amount payable per month by reducing the term that you were offering to pay it over? I would suggest the sooner you settle this the better.
If you do receive court papers do make sure that you respond within the stipulated timescales to avoid a judgment being made against you which would be for the whole sum, usually payable within a very short time. You could also have a costs order made against you, so the sum you would then need to find more to settle the order than just the mistaken payment.
I suspect that if a sensible offer to return the monies is made, this would be accepted by C.
I'll wait to hear your response to the previous question but as I mention, in my opinion you do not have a defence to a claim for unjust enrichment. You can of course seek legal advice on this from a litigation specialist. You may be able to get a free half hour appointment or a reduced fee initial meeting, to explore any other options.

Please see my responses above. Upon their HR contacting me, obviously I checked my bank account to make sure and then as soon as I saw they'd paid me I rand him back to explain the situation and offer repayment. The discrepancy is that I thought my current employer would pay my increase in September, but they started the increase as of October 1st.

I know they can claim unjust enrichment and don't dispute that I wasn't entitled to be paid, however they are continually stating that it was my fault and this is what worries me. It seems they are trying to manoeuvre me into a position of accepting liability and the cynic in me believes this is to claim more money from me.

If I accept a claim, surly they'll get a judgement enforceable for the full amount, plus costs of their "Legal Counsel." I term them that way as the letter is on their headed paper not a solicitors and was emailed to me from their email address not a solicitors. I believe they have incurred no legal costs to date to discuss this matter.

By defending part of the claim wouldn't I have the chance to dispute costs and because of the PDPAC rules they have not followed the opportunity to ask the court to leave them with the burden of court fees and not me?

When they employed me they knew my only reason for moving was pay, basically I had a Fixed Term Contract end in March, took any job I could to have some money in August with a view to then gaining the salary I needed elsewhere. Luckily I landed on my feet and my current employer valued me enough to keep me. The salary I now make doesn't lavish me with disposable income to pay even what I offered, When I went to the CAB to go through a repayment option, they said to offer £29.45 over 24 months as that was more affordable in line with my income and expenditure. This is something I have communicated to "C" and they still don't want to listen.

It would be nice to have the luxury of paying more sooner, but the reality is that I can't even if I want to. Hence my belief this is more about punishing me than it is about the actual money.

I believe I have made a sensible offer.

Thanks for your advice.

[jaguarsuk]

Re: Unjust Enrichment

Hi jaguaruk,
Did you receive a response from C when you said you would not be taking the position?
So you received an additional £700 approximately in the one month as I assume you also received your salary from your current employer? Am I correct in assuming that you no longer have the £700+? Can you reconsider the offer you have made to repay the amount? Or would you be able to pay a larger initial amount. Is there any other way you can 'borrow' the money to pay C back?
Sorry more questions I'm afraid, just trying to think of other ways you could possibly deal with this.

Yes I received a response expressing regret and asking that if I knew anyone to recommend as an alternative to please let them know.
I received my lower salary from my employer on 28th, then on 29th the £700 was paid in (which would be just short of the increase of my employer). I don't check my accounts daily, in fact I usually just go to the machine at the weekend to see how much is available to draw out once the bills are paid to give the missis (who is a stay at home mum) our monthly food money and then whats left after that.
Edited to add: They contacted my nearly a month after the payments.

I basically have no family other than my wife and children, so can't call on family to loan the money and the option isn't available with my bank, therefore a loan isn't possible. I have offered the best I can, but it's still not good enough for them.

Thanks for your advice.

[ostell]

Re: Unjust Enrichment

So basically you were expecting extra money in your account, it arrived and you spent it. There is a legal phrase for this, I can't remember it but no doubt someone will come up with it.

Explain that to the company, with the correct legal phrase, and hopefully they will see that you are trying to repay it but you do not have the cash available to repay in full. A slight increase in the monthly offer might help

[ULA]

Re: Unjust Enrichment

So is the £700 the difference between your old salary and the new salary that was being offered by "C" and which has now been matched by your existing employer?

[jaguarsuk]

Re: Unjust Enrichment

So is the £700 the difference between your old salary and the new salary that was being offered by "C" and which has now been matched by your existing employer?

Yes.

[des8]

Re: Unjust Enrichment

So basically you were expecting extra money in your account, it arrived and you spent it. There is a legal phrase for this, I can't remember it but no doubt someone will come up with it.

Explain that to the company, with the correct legal phrase, and hopefully they will see that you are trying to repay it but you do not have the cash available to repay in full. A slight increase in the monthly offer might help

Change of position defence and surely arguable in this instance?

[charitynjw]

Re: Unjust Enrichment

Lipkin Gorman v Karpnale (1991)

[Peridot]

Re: Unjust Enrichment

Thanks for clarifying the times of payment and also confirming that the payment received is in fact about the sum you would expect to receive following your salary increase. Did your current employer confirm your salary review in writing and when the salary increase would commence from?
If a change of position defence or partial defence were available to you I do think you need to obtain some legal advice. Without all the details it is difficult to see where it may go. The fact that you have had a monthly salary increase of some £700, the Court may find it difficult to accept that you are unable to deal with the sum outstanding to C. You were made aware of the error reasonably quickly after it had occurred. Had you already 'ear marked' the increased salary for other items? With a family, that would be understandable but you would need to evidence it I believe.
I am not sure why they are claiming 'fault' on your part. It may be helpful to see the pre-action letter that you received. If you can block out any identifying information and either post into the thread or e-mail kati@legalbeagles.info who will be able to redact the letter as necessary and post here. If you could let her know the thread it belongs to that would be helpful.

[jaguarsuk]

Re: Unjust Enrichment

Thanks for clarifying the times of payment and also confirming that the payment received is in fact about the sum you would expect to receive following your salary increase. Did your current employer confirm your salary review in writing and when the salary increase would commence from?
If a change of position defence or partial defence were available to you I do think you need to obtain some legal advice. Without all the details it is difficult to see where it may go. The fact that you have had a monthly salary increase of some £700, the Court may find it difficult to accept that you are unable to deal with the sum outstanding to C. You were made aware of the error reasonably quickly after it had occurred. Had you already 'ear marked' the increased salary for other items? With a family, that would be understandable but you would need to evidence it I believe.
I am not sure why they are claiming 'fault' on your part. It may be helpful to see the pre-action letter that you received. If you can block out any identifying information and either post into the thread or e-mail kati@legalbeagles.info who will be able to redact the letter as necessary and post here. If you could let her know the thread it belongs to that would be helpful.

Initially the increase was verbal and with no dates dicussed, only when I brought this all up to check whether they had paid me on the date that "C" said did they confirm they had applied the increase from the 1st of the month after. At that point I asked them to confirm the increase in writing and they wrote me a letter.

Can I be clear that I don't actually want to defend anything, my ideal would be they accept what's been offered and we can all get on with our lives. I've made every effort, even writing to them after they stopped writing to me to try and sort this out, but despite having my position explained to them show now flexibility to negotiate a settlement.

To put the increase into context here is my position, I had a fixed term contract, was assured it would be renewed and then my former employer cut their budgets. It was decided four weeks before the end date that my work could be absolved into the team I was working in and I was surplus to requirement. I then took at £700 reduction to start with my current employer as some income is better than no income as a stop gap. As our commitments are based upon a greater salary, obviously I was job hunting to return to that salary. During the month at the reduced amount I sold personal possessions to make up the shortfall. On gaining the role with "C" I was over the moon that the tough times were over before they started and duly handed my employer my notice, only after a month they'd seen my worth and wanted me to stay, so matched. The reason I stayed was that they also agreed to terminate my probationary period immediately, thus giving me both a salary and security for my family in one fell swoop, plus the role is permanent not fixed term. The £700 per month is not a luxury I have become enamoured with and I'm not some spoilt little so and so trying to wrangle out of paying back while lavishing myself after a pay increase.

The increase was simply to bring us as a family back to the level of income I had previously and that our commitments were based upon. I can fully evidence my commitments as everything goes out the bank.

The paragraph worrying me regarding my fault:

"Unjust Enrichment
As a result of your signing a contract of employment with us on 22nd August 2016 ('the Contract'), "C" paid to you the sum of £706.80 on September 2016 due to a mistake with its payroll system in the previous month due to the fact "C" had, in error, failed to remove you from its payroll system once you had provided "C" with notice on 16th September 2016 that you would not be commencing employment with "C" under the Contract.

In the circumstances you are liable to repay "C" the sum of £706.80."

I have typed that verbatim and obviously changed their name for anonymity. It's the As a result of me signing a contract that worries me, essentially it sounds like they are trying to lay the blame of a chain of events at my door.