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Source : http://www.11kbw.com/articles/docs/JRArticleRestitutionandpublicbodies.pdf
Couldn’t fail to laugh at the Authors surname !!!!
Restitution and public bodies: overview and update
Patrick Halliday
C. RECENT CASES
25. There have been important developments in the law of restitution in two recent House of
Lords decisions concerning restitution of tax paid under a code contrary to EC law:
Deutsche Morgan Grenfell Group v Commissioners of the Inland Revenue;39 and Sempra
Metals Limited v HM Commissioners of Inland Revenue.40 Both cases arose out of the same
group litigation. The litigation followed from an ECJ decision41 that particular provisions of
UK revenue law were contrary to EC law. The offending provisions permitted “group income
elections”, by which liability to pay advance corporation tax (‘ACT’) might be escaped, to be
made by companies with parent companies resident in the UK, but not by companies with
parents resident in other member states. ACT could later be set off against any liability to
pay mainstream corporation tax, but a disadvantage of timing would still be suffered: until
set off, a company would be deprived of the use of the money paid by way of ACT.
Deutsche Morgan Grenfell Group v Commissioners of the Inland Revenue
26. In Deutsche Morgan Grenfell the House of Lords held that a taxpayer who has paid tax
under a mistake of law is entitled to a restitutionary remedy against the Revenue on grounds
of the mistake. The fact that he has a concurrent action on the Woolwich ground of recovery
does not prevent him from recovering on grounds of mistake. He may therefore benefit from
the extended limitation period under section 32(1)(c) of the Limitation Act 1980.
27. DMG had made various payments of ACT. One of these payments had been made more
than six years before DMG brought its claim for restitution. Recovery of this payment was
therefore time-barred unless DMG’s claim could be famed on the ground of mistake (DMG
arguing that the mistake had been discovered only in 2001, when the ECJ handed down
judgment that UK tax provisions were contrary to EC law). The Court of Appeal held that
recovery of tax is governed exclusively by the Woolwich principle and by statute. It drew a
distinction between public and private restitutionary claims and held that, for the recovery of
overpaid taxes at least, restitution is awarded under a distinct public law regime; private law
restitutionary remedies are unavailable.
28. The House of Lords held unanimously that private law restitutionary remedies are available
for recovery of overpaid taxes; the mere fact that a Woolwich remedy, exclusive to public
law, was also available did not mean that recovery on grounds of mistake was precluded.
DMG had concurrent claims based on mistake and on Woolwich, and in choosing between
them it was perfectly entitled to take into account the more favourable limitation rules
associated with the former.42
29. This aspect of the House’s decision is certainly welcome. Except where statute provides
otherwise, the Crown should not be treated more favourably than citizens are treated under
private law.43
30. One other particular point of interest arose during their Lordships’ speeches. The House
was invited to consider whether English restitutionary law should abandon its system of
“unjust factors” in preference for allowing restitution wherever there is an “absence of basis”
for payments made. The “absence of basis” approach prevails in civil law jurisdictions, and
Professor Peter Birks advocated its adoption in English law.44 Lord Hoffmann said that “at
any rate for the moment” English law has no general principle that to retain money without
any legal basis (such as debt, gift, compromise, etc) is unjust enrichment.45 Lord Walker, on
the other hand, inclined towards adopting the “absence of basis” approach as a single
unifying principle for the various “unjust factors”.46 It remains to be seen whether English law
will develop along such lines.
Sempra Metals Limited v HM Commissioners of Inland Revenue
31. In Sempra Metals the majority of the House of Lords held that in a claim for restitution there
is a common law jurisdiction to award compound interest in respect of the time value of
money; and that such an award does not depend on proof that the defendant has in fact
earned interest on money received.
32. Sempra had paid very large amounts by way of ACT and had been able to set off those
amounts against mainstream corporation tax only after considerable delays. It was accepted
by the Revenue that Sempra had three causes of action by which it could recover interest on
the prematurely paid tax: an action for damages for the statutory tort consisting of a breach
of EC law; a restitutionary claim on the ground of tax being paid pursuant to an unlawful
demand; and a restitutionary claim on the ground of payments being made under a mistake
of law. Sempra’s preferred cause of action was the latter, because of the favourable
limitation rules applying to claims based on mistake. The issue in the Court of Appeal and
House of Lords was whether interest on ACT during the period prior to set off should be
calculated on a compound or a simple basis. It had long been considered that the courts
have no jurisdiction to make an award of compound interest on a personal claim for
restitution.47
33. The Court of Appeal held that EC law required English courts to give a full remedy or full
compensation in order to restore equal treatment and that only an award of compound
interest would achieve this.48 The House of Lords’ approach was more radical. It did not
rely on EC law, but instead based its decision on a major rewriting of the rules governing
interest in English law.
34. The House’s reasoning can be divided into three distinct parts. First, their Lordships were
unanimous that interest losses (including compound interest losses) should be recoverable
by way of damages for breach of contract to pay a debt; the old common law rule that such
losses are unrecoverable as damages49 should be restricted to cases where there is a failure
to prove actual interest losses.50 Actual interest losses may be the cost of borrowing money
from elsewhere or the loss of an opportunity to invest the promised money. A party may
choose not to prove his interest losses and rely instead on the statutory provisions for the
award of simple interest on debts.51 Normal rules as to remoteness of loss and obligations
to mitigate apply. Sempra Metals is, therefore, a very important decision outside the law of
restitution. It is likely to give rise to difficult issues concerning the burden of proving actual
interest losses; concerning remoteness of loss; and concerning mitigation of loss, for
example where a claimant has delayed before bringing an action to recover an unpaid debt,
and his interest losses have increased because of the delay.
35. Secondly, against this background, their Lordships agreed that in an action for restitution,
where the defendant is unjustly enriched in respect of the time value of money, compound
interest may be recoverable.52 However, whilst Lords Nicholls, Hope and Scott decided that
there is remedy as of right at common law for restitution of such interest,53 Lords Mance and
Walker said that any remedy for restitution of interest is equitable and therefore
discretionary. Lords Mance and Walker considered an equitable remedy to be more
appropriate because of the flexibility it permitted.54
36. The majority’s approach on this point is to be preferred. The minority’s approach is contrary
to principle: where the elements of a claim for restitution are made out there is an absolute
right to restitution at common law.55 Once a defendant has been proved to have been
unjustly enriched by the receipt of interest, the claimant must be entitled, subject to the usual
defences, to restitution of that interest.
37. Thirdly, their Lordships considered the basis on which enrichment by interest should be
proved and measured. At this point there was a substantial divergence of views.
38. Lords Nicholls, Hope and Walker decided that a defendant should be “presumed” to have
benefited from the use of the money. Lords Nicholls and Hope reasoned that the “time value
of money” in the defendant’s hands is a benefit in itself, the market value of which is the
amount it would cost the defendant to borrow that money.56 There is therefore no need for
proof that the defendant in fact benefited from use of the money. There should be restitution
of compound interest on the money, with the possible exception of cases where the
defendant is able to prove he derived that no actual benefit from use of the money.57 Lords
Nicholls, Hope and Walker agreed that the use of the money might also be worth less to the
defendant than its market value, in which case the benefit should be “subjectively devalued”;
in the instant case, the UK government was able to borrow money more cheaply than
commercial companies, so that the interest requiring restitution should be calculated by
reference to the rate at which the government could borrow the relevant amounts at the
relevant times, and not by reference to normal market rates.58
39. By contrast Lords Mance and Scott stated that anyone claiming for restitution in relation to
the use of money had and received must prove that actual benefits have been obtained by
the defendant, for example by earning interest on the money or by saving interest on
borrowings that would otherwise have been made. They criticised the majority for reversing
the legal burden of proof.59 Lord Mance concluded that Sempra’s claim should be remitted
to the High Court for an assessment of what actual benefits the Revenue had received by
use of the money;60 Lord Scott concluded that since there was no evidence of the Revenue
deriving actual benefits from the premature payments, Sempra’s claim for restitution should
fail.61
40. It is submitted that the approach of Lords Mance and Scott is preferable. It need not be
difficult to prove that an enrichee has benefited from the time value of money received: it
may be inferred that a net lender has earned interest on the money or that a net borrower
has saved interest on borrowings that would otherwise have been made. Nonetheless, the
burden of proving such benefits should be imposed on the claimant. The majority’s
approach may lead to innocent recipients being required to “return” assumed benefits which
they have never in fact received. It is based on the questionable premise that the “time
value of money” is a benefit in itself, even though such value may not be realised. It cannot
be correct that, whilst those claiming for damages in respect of lost interest must prove their
interest losses,62 those claiming for restitution of interest need not prove the defendant’s
gains. The law of restitution should be based upon the principle that unjust enrichment
should be reversed; if the law is to remain coherent, defendants should not be required to
reverse assumed “enrichment” which they have not in fact enjoyed.
References
39 [2006] UKHL 49, [2007] 1 AC 558.
40 [2007] UKHL 34.
41 Metallgesellschaft Ltd v Inland Revenue Commissioners and Hoechst AG v Inland Revenue
Commissioners (Joined Cases C-397 and 410/98) [2001] Ch 620.
42 Per Lord Hoffmann at [17]; per Lord Hope at [51], [56]; per Lord Scott at [83]; per Lord Walker at [135]-
[142]; per Lord Brown at [161].
43 At [39] Lord Hope cited approvingly Professor Peter Birks’ statement in Essays on Restitution (1990) at
p.174 that causes of action good against private citizens are no less good against public bodies. And at
[133] Lord Walker stated: “Under the rule of law, the Crown… is in general subject to the same common
law obligations as ordinary citizens.”
44 Unjust Enrichment, (2nd Edn, Oxford 2005).
45 [21].
46 [158].
47 E.g. see Westdeutsche Landesbank, in which the majority of the House of Lords decided that equity could
not assist the common law by making an award of compound interest on a personal claim for restitution; and
in which all concerned assumed that there was no common law jurisdiction to make an award of compound
interest (see 690H per Lord Goff).
48 [2005] EWCA Civ 389, [2006] QB 37.
49 London, Chatham and Dover Railway Co v South Eastern Railway Co [1893] AC 429. This rule was
restricted in President of India v La Pintada Compania Navigacion SA [1985] 1 AC 104 in which Lord
Brandon said that, while interest losses falling within the first limb of the rule in Hadley v Baxendale (1854) 9
Exch 341 should be irrecoverable as damages, interest losses falling within the second limb of that rule
should be recoverable as damages. Lord Brandon’s distinction between the recoverability of these two
types of interest losses was, however, widely criticised: see per Lord Nicholls at [87] of Sempra Metals.
50 Per Lord Nicholls at [92], [94], [96], [100]; per Lord Hope at [16]-[17], [41]; per Lord Walker at [154], [164]-
[165]; per Lord Mance at [216]; per Lord Scott at [151]. The House also affirmed the existing rule the courts
have a common law jurisdiction to award interest, simple and compound, as damages on other claims for
breach of contract and in tort: per Lord Nicholls at [74], [100]; per Lord Mance at [217]; and per Lord Scott at
[132].
51 See in particular s.35A of the Supreme Court Act 1981.
52 Per Lord Nicholls at [112]; per Lord Hope at [22]; per Lord Walker at [154], [183]; per Lord Mance at [240];
per Lord Scott at [132].
53 Per Lord Nicholls at [112]; per Lord Hope at [35]; per Lord Scott at [151], [153].
54 Per Lord Mance at [235]-[236], [240]; per Lord Walker at [184], [187].
55 See Lipkin Gorman, supra, at 578C-E per Lord Goff; and Kleinwort Benson, supra, at 385A-F per Lord
Goff.
56 Per Lord Nicholls at [102], [103]; per Lord Hope at [32]-[33]. Lord Hope also relied on the pragmatic
argument that a claimant ought not to be required to produce proof of matters that are unlikely to be within
his own knowledge, namely the use made of the money by the defendant: [47].
57 Per Lord Nicholls at [117]-[118]; per Lord Hope at [32]-[33], [48]; per Lord Walker at [180].
58 Per Lord Nicholls at [119], [129]; per Lord Hope at [49]-[50]; per Lord Walker at [188].
59 Per Lord Mance at [232]-[233]; per Lord Scott at [132].
60 [241].
61 [143].
62 Per Lord Nicholls at [95]-[96] (“it is always open to a claimant to plead and prove his actual interest losses
caused by late payment of a debt… [T]he court will… draw such inferences as are appropriate… There are
no special rules for the proof of facts in this area of the law. But an unparticularised and unproved claim
simply for ‘damages’ will not suffice. General damages are not recoverable. The common law does not
assume that delay in payment of a debt will of itself cause damage. Loss must be proved.”). See similarly
per Lord Hope at [17].
Couldn’t fail to laugh at the Authors surname !!!!
Restitution and public bodies: overview and update
Patrick Halliday
C. RECENT CASES
25. There have been important developments in the law of restitution in two recent House of
Lords decisions concerning restitution of tax paid under a code contrary to EC law:
Deutsche Morgan Grenfell Group v Commissioners of the Inland Revenue;39 and Sempra
Metals Limited v HM Commissioners of Inland Revenue.40 Both cases arose out of the same
group litigation. The litigation followed from an ECJ decision41 that particular provisions of
UK revenue law were contrary to EC law. The offending provisions permitted “group income
elections”, by which liability to pay advance corporation tax (‘ACT’) might be escaped, to be
made by companies with parent companies resident in the UK, but not by companies with
parents resident in other member states. ACT could later be set off against any liability to
pay mainstream corporation tax, but a disadvantage of timing would still be suffered: until
set off, a company would be deprived of the use of the money paid by way of ACT.
Deutsche Morgan Grenfell Group v Commissioners of the Inland Revenue
26. In Deutsche Morgan Grenfell the House of Lords held that a taxpayer who has paid tax
under a mistake of law is entitled to a restitutionary remedy against the Revenue on grounds
of the mistake. The fact that he has a concurrent action on the Woolwich ground of recovery
does not prevent him from recovering on grounds of mistake. He may therefore benefit from
the extended limitation period under section 32(1)(c) of the Limitation Act 1980.
27. DMG had made various payments of ACT. One of these payments had been made more
than six years before DMG brought its claim for restitution. Recovery of this payment was
therefore time-barred unless DMG’s claim could be famed on the ground of mistake (DMG
arguing that the mistake had been discovered only in 2001, when the ECJ handed down
judgment that UK tax provisions were contrary to EC law). The Court of Appeal held that
recovery of tax is governed exclusively by the Woolwich principle and by statute. It drew a
distinction between public and private restitutionary claims and held that, for the recovery of
overpaid taxes at least, restitution is awarded under a distinct public law regime; private law
restitutionary remedies are unavailable.
28. The House of Lords held unanimously that private law restitutionary remedies are available
for recovery of overpaid taxes; the mere fact that a Woolwich remedy, exclusive to public
law, was also available did not mean that recovery on grounds of mistake was precluded.
DMG had concurrent claims based on mistake and on Woolwich, and in choosing between
them it was perfectly entitled to take into account the more favourable limitation rules
associated with the former.42
29. This aspect of the House’s decision is certainly welcome. Except where statute provides
otherwise, the Crown should not be treated more favourably than citizens are treated under
private law.43
30. One other particular point of interest arose during their Lordships’ speeches. The House
was invited to consider whether English restitutionary law should abandon its system of
“unjust factors” in preference for allowing restitution wherever there is an “absence of basis”
for payments made. The “absence of basis” approach prevails in civil law jurisdictions, and
Professor Peter Birks advocated its adoption in English law.44 Lord Hoffmann said that “at
any rate for the moment” English law has no general principle that to retain money without
any legal basis (such as debt, gift, compromise, etc) is unjust enrichment.45 Lord Walker, on
the other hand, inclined towards adopting the “absence of basis” approach as a single
unifying principle for the various “unjust factors”.46 It remains to be seen whether English law
will develop along such lines.
Sempra Metals Limited v HM Commissioners of Inland Revenue
31. In Sempra Metals the majority of the House of Lords held that in a claim for restitution there
is a common law jurisdiction to award compound interest in respect of the time value of
money; and that such an award does not depend on proof that the defendant has in fact
earned interest on money received.
32. Sempra had paid very large amounts by way of ACT and had been able to set off those
amounts against mainstream corporation tax only after considerable delays. It was accepted
by the Revenue that Sempra had three causes of action by which it could recover interest on
the prematurely paid tax: an action for damages for the statutory tort consisting of a breach
of EC law; a restitutionary claim on the ground of tax being paid pursuant to an unlawful
demand; and a restitutionary claim on the ground of payments being made under a mistake
of law. Sempra’s preferred cause of action was the latter, because of the favourable
limitation rules applying to claims based on mistake. The issue in the Court of Appeal and
House of Lords was whether interest on ACT during the period prior to set off should be
calculated on a compound or a simple basis. It had long been considered that the courts
have no jurisdiction to make an award of compound interest on a personal claim for
restitution.47
33. The Court of Appeal held that EC law required English courts to give a full remedy or full
compensation in order to restore equal treatment and that only an award of compound
interest would achieve this.48 The House of Lords’ approach was more radical. It did not
rely on EC law, but instead based its decision on a major rewriting of the rules governing
interest in English law.
34. The House’s reasoning can be divided into three distinct parts. First, their Lordships were
unanimous that interest losses (including compound interest losses) should be recoverable
by way of damages for breach of contract to pay a debt; the old common law rule that such
losses are unrecoverable as damages49 should be restricted to cases where there is a failure
to prove actual interest losses.50 Actual interest losses may be the cost of borrowing money
from elsewhere or the loss of an opportunity to invest the promised money. A party may
choose not to prove his interest losses and rely instead on the statutory provisions for the
award of simple interest on debts.51 Normal rules as to remoteness of loss and obligations
to mitigate apply. Sempra Metals is, therefore, a very important decision outside the law of
restitution. It is likely to give rise to difficult issues concerning the burden of proving actual
interest losses; concerning remoteness of loss; and concerning mitigation of loss, for
example where a claimant has delayed before bringing an action to recover an unpaid debt,
and his interest losses have increased because of the delay.
35. Secondly, against this background, their Lordships agreed that in an action for restitution,
where the defendant is unjustly enriched in respect of the time value of money, compound
interest may be recoverable.52 However, whilst Lords Nicholls, Hope and Scott decided that
there is remedy as of right at common law for restitution of such interest,53 Lords Mance and
Walker said that any remedy for restitution of interest is equitable and therefore
discretionary. Lords Mance and Walker considered an equitable remedy to be more
appropriate because of the flexibility it permitted.54
36. The majority’s approach on this point is to be preferred. The minority’s approach is contrary
to principle: where the elements of a claim for restitution are made out there is an absolute
right to restitution at common law.55 Once a defendant has been proved to have been
unjustly enriched by the receipt of interest, the claimant must be entitled, subject to the usual
defences, to restitution of that interest.
37. Thirdly, their Lordships considered the basis on which enrichment by interest should be
proved and measured. At this point there was a substantial divergence of views.
38. Lords Nicholls, Hope and Walker decided that a defendant should be “presumed” to have
benefited from the use of the money. Lords Nicholls and Hope reasoned that the “time value
of money” in the defendant’s hands is a benefit in itself, the market value of which is the
amount it would cost the defendant to borrow that money.56 There is therefore no need for
proof that the defendant in fact benefited from use of the money. There should be restitution
of compound interest on the money, with the possible exception of cases where the
defendant is able to prove he derived that no actual benefit from use of the money.57 Lords
Nicholls, Hope and Walker agreed that the use of the money might also be worth less to the
defendant than its market value, in which case the benefit should be “subjectively devalued”;
in the instant case, the UK government was able to borrow money more cheaply than
commercial companies, so that the interest requiring restitution should be calculated by
reference to the rate at which the government could borrow the relevant amounts at the
relevant times, and not by reference to normal market rates.58
39. By contrast Lords Mance and Scott stated that anyone claiming for restitution in relation to
the use of money had and received must prove that actual benefits have been obtained by
the defendant, for example by earning interest on the money or by saving interest on
borrowings that would otherwise have been made. They criticised the majority for reversing
the legal burden of proof.59 Lord Mance concluded that Sempra’s claim should be remitted
to the High Court for an assessment of what actual benefits the Revenue had received by
use of the money;60 Lord Scott concluded that since there was no evidence of the Revenue
deriving actual benefits from the premature payments, Sempra’s claim for restitution should
fail.61
40. It is submitted that the approach of Lords Mance and Scott is preferable. It need not be
difficult to prove that an enrichee has benefited from the time value of money received: it
may be inferred that a net lender has earned interest on the money or that a net borrower
has saved interest on borrowings that would otherwise have been made. Nonetheless, the
burden of proving such benefits should be imposed on the claimant. The majority’s
approach may lead to innocent recipients being required to “return” assumed benefits which
they have never in fact received. It is based on the questionable premise that the “time
value of money” is a benefit in itself, even though such value may not be realised. It cannot
be correct that, whilst those claiming for damages in respect of lost interest must prove their
interest losses,62 those claiming for restitution of interest need not prove the defendant’s
gains. The law of restitution should be based upon the principle that unjust enrichment
should be reversed; if the law is to remain coherent, defendants should not be required to
reverse assumed “enrichment” which they have not in fact enjoyed.
References
39 [2006] UKHL 49, [2007] 1 AC 558.
40 [2007] UKHL 34.
41 Metallgesellschaft Ltd v Inland Revenue Commissioners and Hoechst AG v Inland Revenue
Commissioners (Joined Cases C-397 and 410/98) [2001] Ch 620.
42 Per Lord Hoffmann at [17]; per Lord Hope at [51], [56]; per Lord Scott at [83]; per Lord Walker at [135]-
[142]; per Lord Brown at [161].
43 At [39] Lord Hope cited approvingly Professor Peter Birks’ statement in Essays on Restitution (1990) at
p.174 that causes of action good against private citizens are no less good against public bodies. And at
[133] Lord Walker stated: “Under the rule of law, the Crown… is in general subject to the same common
law obligations as ordinary citizens.”
44 Unjust Enrichment, (2nd Edn, Oxford 2005).
45 [21].
46 [158].
47 E.g. see Westdeutsche Landesbank, in which the majority of the House of Lords decided that equity could
not assist the common law by making an award of compound interest on a personal claim for restitution; and
in which all concerned assumed that there was no common law jurisdiction to make an award of compound
interest (see 690H per Lord Goff).
48 [2005] EWCA Civ 389, [2006] QB 37.
49 London, Chatham and Dover Railway Co v South Eastern Railway Co [1893] AC 429. This rule was
restricted in President of India v La Pintada Compania Navigacion SA [1985] 1 AC 104 in which Lord
Brandon said that, while interest losses falling within the first limb of the rule in Hadley v Baxendale (1854) 9
Exch 341 should be irrecoverable as damages, interest losses falling within the second limb of that rule
should be recoverable as damages. Lord Brandon’s distinction between the recoverability of these two
types of interest losses was, however, widely criticised: see per Lord Nicholls at [87] of Sempra Metals.
50 Per Lord Nicholls at [92], [94], [96], [100]; per Lord Hope at [16]-[17], [41]; per Lord Walker at [154], [164]-
[165]; per Lord Mance at [216]; per Lord Scott at [151]. The House also affirmed the existing rule the courts
have a common law jurisdiction to award interest, simple and compound, as damages on other claims for
breach of contract and in tort: per Lord Nicholls at [74], [100]; per Lord Mance at [217]; and per Lord Scott at
[132].
51 See in particular s.35A of the Supreme Court Act 1981.
52 Per Lord Nicholls at [112]; per Lord Hope at [22]; per Lord Walker at [154], [183]; per Lord Mance at [240];
per Lord Scott at [132].
53 Per Lord Nicholls at [112]; per Lord Hope at [35]; per Lord Scott at [151], [153].
54 Per Lord Mance at [235]-[236], [240]; per Lord Walker at [184], [187].
55 See Lipkin Gorman, supra, at 578C-E per Lord Goff; and Kleinwort Benson, supra, at 385A-F per Lord
Goff.
56 Per Lord Nicholls at [102], [103]; per Lord Hope at [32]-[33]. Lord Hope also relied on the pragmatic
argument that a claimant ought not to be required to produce proof of matters that are unlikely to be within
his own knowledge, namely the use made of the money by the defendant: [47].
57 Per Lord Nicholls at [117]-[118]; per Lord Hope at [32]-[33], [48]; per Lord Walker at [180].
58 Per Lord Nicholls at [119], [129]; per Lord Hope at [49]-[50]; per Lord Walker at [188].
59 Per Lord Mance at [232]-[233]; per Lord Scott at [132].
60 [241].
61 [143].
62 Per Lord Nicholls at [95]-[96] (“it is always open to a claimant to plead and prove his actual interest losses
caused by late payment of a debt… [T]he court will… draw such inferences as are appropriate… There are
no special rules for the proof of facts in this area of the law. But an unparticularised and unproved claim
simply for ‘damages’ will not suffice. General damages are not recoverable. The common law does not
assume that delay in payment of a debt will of itself cause damage. Loss must be proved.”). See similarly
per Lord Hope at [17].