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I first encountered Occam’s Razor in the writings of Peter Birks:

‘It is vain to be done with more what can be done with fewer’; or, ‘Entities are not to be multiplied without necessity.’

(Peter Birks An Introduction to the Law of Restitution (OUP, revised ed, 1989) 75, citing Bertrand Russell A History of Western Philosophy (2nd ed, Allen & Unwin, 1961) 462-463).

Birks also wrote that there “is a counter-principle of ‘Occam’s razor’ … that, as you must not have too many entities, so also you cannot do with too few” (ibid, 91). This is inherent in Occam’s Razor itself, of course, especially as formulated in Einstein’s Constraint, that “Everything should be kept as simple as possible, but not simpler” (emphasis added). But the Birks formulation is stronger, since it suggests that, even though there are virtues in shaving away unnecessary entities, not only are there limits to how much may be shaved away, but there are also virtues in adding necessary entities in. Let us call this “Birks’s Augmentation”.

All of this occurred to me as I was reading two interesting cases of restitution for unjust enrichment in which judgment was handed down just before Christmas.…

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Introduction
The recent decision of the Court of Appeal for England and Wales in Gray v Global Energy Horizons Corporation [2020] EWCA Civ 1668 (09 December 2020) has prompted me to reflect, briefly, on the role of policy in the law of restitution for unjust enrichment. In this post, I will consider that role in the context of the structure such claims restitution for unjust enrichment that the Irish and UK courts broadly apply.

In the case concerning The Bricklayers’ Hall, Keane J predicated the obligation to make restitution for unjust enrichment upon four “essential preconditions”: whether there was (i) an enrichment to the defendant (ii) at the expense of the plaintiff, (iii) in circumstances in which the law will require restitution, (iv) where there is no reason why restitution will be withheld (see see footnote).

Questions of policy overtly arise on the second and fourth of these four essential preconditions, and they will be discussed in the next two sections of this post.

Reflection 1
The second essential precondition of a claim to restitution for unjust enrichment – whether there are circumstances in which the law will require restitution – essentially focuses upon the question of whether a cause of action has been made out.…

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