1. Calvert v William Hill Credit Ltd[2008] EWCA Civ 1427, [2009] 2 WLR 1065.

2. Golden Strait Corpn v Nippon Yusen Kubishika Kaisha (The ‘Golden Victory’)[2007] UKHL 12, [2007] 2 AC 353 (Golden Victory). See the main text accompanying below n 110.

3. Calvert, above n 1. See below part 1.

4. Above n 2.

5. William Hill had already failed to implement one self-exclusion, but Mr Calvert finished £7000 up as a result and thus made no claim: Calvert, above n 1, at [3].

6. Ibid, at [26].

7. [2008] EWHC 454 (Ch), [2008] LLR 583 at [176]–[187].

8. Set out in full, ibid, at [73].

9. The Court of Appeal's conclusion here seems correct, for the three internal aspects of the assumption of responsibility test were present. William Hill had taken on responsibility for the careful execution of a task (preventing Mr Calvert from telephone betting with them) in a considered, voluntary manner, and Mr Calvert had relied upon the careful execution of this task by reposing trust and confidence in William Hill. See, generally, M Stiggelbout ‘ “I'm banking on you”– rethinking reliance’ (2008) LMCLQ 258.

10. Calvert, above n 7, at [176].

11. Ibid, at [188].

12. Calvert, above n 1, at [26].

13. This seems uncontroversial, for William Hill had failed to take care to effect precisely what it had agreed to.

14. Calvert, above n 7, at [195].

15. Ibid, at [196].

16. Calvert, above n 1, at [46].

17. As in South Australia Asset Management Corp v York Montague Ltd[1997] AC 191 (SAAMCO).

18. Calvert, above n 1, at [47]–[48].

19. Ibid, at [47].

20. Ibid, at [47].

21. Ibid, at [48].

22. [2000] 1 AC 360.

23. Ibid, at 368 per Lord Hoffmann.

24. I am grateful to an anonymous reviewer for these suggestions. They may also find some support in the Court of Appeal's observation that the duty ‘was to go some way to protect him from his gambling propensity’: Calvert, above n 1, at [47] (emphasis added). Although unsatisfactorily vague, this might indicate an intention to define the duty somewhat narrowly. However, even if this can be assumed, the Court of Appeal's apparent contradiction remains inescapable.

25. The content of a duty of care is a question of fact, and the applicable factual finding was that William Hill owed a duty to take care to implement the exclusion of ‘the claimant from telephone gambling with the company for six months’: Calvert, above n 7, at [176].

26. Section 1(1) of the Law Reform (Contributory Negligence) Act 1945 Act provides that, ‘[w]here any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons…the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage’.

27. The Court of Appeal's discussion in this regard, above n 1, at [61]–[72], seems correct in principle given that Mr Calvert had continued to gamble ‘despite periods of clarity’ in which ‘he could have taken steps…to try to deal with his habit’. In particular, during one such moment, he declined the express offer of self-exclusion: at [71].

28. Ibid, at [47] (emphasis added).

29. SAAMCO, above n 17, at 213. For a recent, controversial analysis of contractual remoteness in terms of scope of duty, see Transfield Shipping Inc v Mercator Shipping Inc (The ‘Achilleas’)[2008] UKHL 48, [2008] 3 WLR 345 at [15] per Lord Hoffmann.

30. See the website available at http://www.lawreports.co.uk/HouseofLords/decisionresults09.htm.

31. In the midst of its ‘scope of duty’ reasoning, it stated ‘that the quantification of his loss…cannot as a matter of law ignore the other probable consequences of his gambling propensity’: Calvert, above n 1, at [47] (emphasis added).

32. Calvert, above n 7, at [196].

33. On the peculiar problems created by hypothetical, or subsequent, torts, see, eg, Baker v Willoughby[1970] AC 467. The literature addressing this issue is wide. For a rough outline, consider: RJ Peaslee ‘Multiple causation and damage’ (1934) 47 Harv LR 1127 (arguing that the innocent/tortious distinction is desirable); CE Carpenter ‘Concurrent causation’ (1935) 83 U Pa LR 941 (opposing it); U Wagner ‘Successive causes and the quantum of damages in personal injury cases’ (1972) 10 Osgoode Hall LJ 369 at 382–384 (equivocating but eventually falling back upon intuitions of justice to conclude that the distinction is appropriate). That the distinction is good as a matter of law was confirmed in Jobling v Associated Dairies[1982] AC 794, below, text to n 72, although several members of the House of Lords had doubts as to its basis in logic. For a post-Jobling defence of the logic of the distinction, see A Borrowdale ‘Taking account of vicissitudes in the assessment of damages: an Anglo-Australian perspective’ (1983) 32 ICLQ 651 at 660–665.

34. H Street ‘Supervening events and the quantum of damages’ (1962) 78 LQR 70 at 70–71: ‘in assessing damages for wrongs to property the concept of “value” has acquired the status of such a firm sub-rule so that, whatever the difficulties of defining it, the value of property at a specific time is the basis for damages in wrongs affecting property’. The ‘specific time’ referred to is the date of the wrong. One of the key implications of this rule is that a considerable number of hypothetical ‘losses in any event’ will not operate to reduce an award of damages in the context of property damage: they will simply be disregarded.

35. [2007] UKHL 39, [2008] 1 AC 281.

36. J Stapleton ‘Choosing what we mean by “causation” in the law’ (2008) 73 Missouri LR 433 at 453–455.

37. [1962] 1 QB 33.

38. Although cases of property damage are generally subject to quite different rules (see above n 34), the distinction evaporates as regards existing injury. This is because the existing injury will have affected the property's value prior to the defendant's intervention.

39. The claimant had successfully sued the party responsible for the first collision and received judgment for £75 to cover the respray. However, the claimant had ‘recovered nothing under their first judgment’ and it looked ‘extremely unlikely’ that they would be able to: above n 37, at 37. Conceding that they could not recover £75 from both defendants, the claimants offered to assign to the defendant the benefit of the earlier judgment: at 38.

40. Ibid, at 40 per Lord Evershed MR.

41. Stapleton, above n 36, at 453–454 (footnotes omitted). For another recent plea for recognition of the causation/damages distinction, see MD Green ‘The intersection of factual causation and damages’ (2006) 55 DePaul LR 671.

42. Above n 35, at [7].

43. Ibid, at [49]. This conclusion was reached as a matter of law, so that it was unnecessary to conduct any hypothetical inquiry into a world absent the defendant's breach of duty.

44. Of course, Performance Cars constitutes a rather straightforward case of the ‘losses in any event’ phenomenon, for where there exists antecedent injury that will necessarily result in certain losses, a subsequent act of the defendant that would ordinarily result in the same losses will naturally be redundant. The answer to this question can be determined even without constructing the hypothetical world, for whatever subsequent event is removed will make no difference. The real difficulties with ‘losses in any event’ come into play where the defendant's breach of duty pre-empts injury.

45. In this sense, the idea of the courts in torts matters functioning as a ‘complaints department’ seems particularly fitting: see Weir, T Tort Law (Oxford: Oxford University Press, 2002) p ix.Google Scholar

46. Performance Cars, above n 37.

47. Rothwell, above n 35.

48. The example discussed by Stapleton, above n 36, at 454.

49. [1969] 1 QB 428.

50. Ibid, at 434 per Nield J.

51. [1962] 1 WLR 295 at 299 per Viscount Kilmuir LC.

52. It seems that potential minor temporal distinctions will be ignored by the courts, unless specifically raised. For example, no reference was made to the possibility that careful treatment in Barnett may have prolonged the claimant's life by a short period. Similarly, the point was not taken in McWilliams that, had a safety belt been present, the claimant might have thought about wearing it, decided against it and so died one minute later. However, if such temporal distinctions can be established on a balance of probabilities, the defendant's breach should be treated as a cause of the injury occurring at the time that it did in fact, thereby pushing the issue into damages rather than causation.

53. [2005] UKHL 2, [2005] 2 AC 176.

54. Ibid, at [198] per Baroness Hale of Richmond.

55. The ‘hook’ argument derives from J Stapleton ‘Cause in fact and the scope of liability for consequences’ (2003) 119 LQR 388 at 423. The authority for taking account of future possibilities at the quantification stage is Mallett v McMonagle[1970] AC 166 at 176 per Lord Diplock.

56. All that the claimant succeeded in doing in Gregg v Scott, therefore, was transforming the issue from one of causation into one of damages. Although the growth of the tumour had been caused by the defendant, even the ‘hook’ argument requires actionable damage. See Stapleton, ibid, at 423 (although Stapleton, writing pre-Rothwell, there took the view that a mere physical change would qualify as such actionable damage).

57. This was put beyond doubt, post-Gregg v Scott, in Rothwell, above n 35.

58. Gregg v Scott, above n 53, at [71] per Lord Hoffmann; [200] per Baroness Hale.

59. Lord Hoffmann emphasised both that the approach was precluded by authority (ibid, at [85]), and that any expansion of liability could not be confined without arbitrary ‘control mechanisms’ (ibid, at [86]–[90]) and would carry knock-on effects so far-reaching as to render it ‘a legislative act’ (ibid, at [90]). Similarly, Baroness Hale was at pains to stress that the argument would amount to a wholesale transformation of personal injury law by permitting claimants to recover in almost all cases (ibid, at [222]–[224]).

60. Rothwell, above n 35.

61. That is, damage as compared to the position he would have been in if the tort had not occurred. The phrase is used by Stapleton, above n 55, at 391. However, see Stapleton, above n 36, at 453–455 for a tightening of the distinction between causation of injury and causation of actionable damage.

62. 85 NH 449, 163 A 111 (1932).

63. Ibid, at 115. The defendant may, however, have been liable for losses other than those that would have occurred in any event, such as ‘for conscious suffering found to have been sustained from the shock’.

64. Ibid, at 115.

65. Such is the view of most commentators. See, eg, WL Prosser ‘The Minnesota court on proximate cause’ (1936) 21 Minn LR 19 at 58; Stapleton, above n 36, at 452; JH King Jr ‘Causation, valuation, and chance in personal injury torts involving preexisting conditions and future consequences’ (1981) 90 Yale LJ 1353 at 1357: ‘The New Hampshire Supreme Court correctly held that although the electrical current “caused” the death regardless of the fall, the fact that the victim had lost his balance and had started to fall should be taken into account in assessing the extent of the defendant's liability’ (footnote omitted).

66. See AM Honoré‘Causation in the law’ in Stanford Encyclopedia of Philosophy at 3.1, available at http://plato.stanford.edu/entries/causation-law/: ‘The pre-empting, not the pre-empted condition is taken to be the cause of the death’. See, also, Stapleton, above n 36, at 451–453. As Green succinctly puts it, above n 41, at 680, ‘One cannot cause an outcome that has already occurred’ (footnote omitted).

67. Performance Cars, above n 37.

68. Whether a period of time is ‘inappreciable’ must therefore be based on a de minimis principle, rather than on factual uncertainty. In Dillon, above n 62, the facts clearly showed that electrocution temporally pre-empted death by falling.

69. In fact, the evidence was somewhat sketchy, but the court gave an answer assuming this to have been the case.

70. [1898] AC 742.

71. Ibid, at 746–747 per Lord Hobhouse.

72. [1982] AC 794.

73. However, post-trial hypothetical losses also give rise to damages reductions. See Cutler v Vauxhall Motors[1971] 1 QB 418.

74. Reeve J's crucial finding of fact was that the claimant, in any event, ‘would since 1976 by reason of his myelopathy have been rendered unfit for work thereafter’: cited by Lord Edmund-Davies, above n 72, at 804G–H.

75. [1970] AC 467 at 492A.

76. For another interesting personal injury illustration, see Cutler v Vauxhall Motors, above n 73. Here, the claimant would have required a leg operation 4 or 5 years later in any event, such that his loss of earnings in the recovery period was irrecoverable. However, since the defendant had brought forward the date of the operation, the interest that would have accrued on those earnings was, in principle, recoverable: at 426B–C per Edmund-Davies LJ. This last point is missed by Wagner, above n 33, at 378–379, who is otherwise supportive of the decision.

77. Above n 73.

78. See King, above n 65, at 1357–1358 for the argument that the fall had therefore ‘attached’ to the claimant and become a pre-existing condition.

79. Hart, HLA and Honoré, AM Causation in the Law (Oxford: Oxford University Press, 2nd edn, 1985) p 180.CrossRefGoogle Scholar

80. Thereby vindicating Wagner's claim, above n 33, at 392–393, that the distinction ought to be irrelevant. This position is welcomed, post-Jobling, by Green, above n 41, at 691–692.

81. Jobling, above n 72, at 807–808 (original emphasis).

82. Note, also, that the hypothetical losses need not have been ones that would have occurred pre-trial. In Cutler, above n 73, a discount was made as regards hypothetical costs that would have been incurred several years after the trial date.

83. For an exposition of this ‘destruction of an interest’ argument, see King, above n 65, esp at 1356–1363.

84. The oft-cited illustration (probably less for its value as precedent than for its holding of no liability despite a blatant breach of duty) is Barnett, above n 49.

85. According to Karminski LJ in Cutler, above n 73, at 427, when undertaking the damages inquiry, ‘[w]hat has to be ascertained here are the actual consequences to the plaintiff of the defendants' wrongdoing’.

86. This is the view reached by Green, above n 41, at 704–708.

87. Above n 70, at 115 (emphasis added).

88. [1962] 2 QB 405 at 414.

89. Ibid, at 413 and 416. Similarly, in Warren v Scruttons[1962] 1 Lloyd's Rep 497 at 502, damages were reduced from £900 to £500, to take account of ‘the fact that [the claimant's eye] condition might well have occurred even if this accident had not occurred’. For a more detailed discussion of these cases, see M Stiggelbout ‘The scope and rationale of the principle that the defendant “takes his victim as he finds him”’ (2009) 17 Tort L Rev 140 at 141–142.

90. Cutler, above n 73, at 421–422 (emphasis added). Although Russell LJ dissented, feeling that an all-or-nothing discount based upon the balance of probabilities standard was incorrect (at 423–424), the majority were confident in their view. As Karminsky LJ put it (at 427) ‘it would be wrong to ignore the strong probability on the evidence that in any event this loss was inevitable, though at a later date. To ignore this probability would be to put the plaintiff…in a better position than he was before the wrong’.

91. An early version of the example is used by JA McLaughlin ‘Proximate cause’ (1925) 39 Harv LR 149 at 155, fn 25. Poison was introduced by Hart and Honoré, above n 79, p 239, so as to change the physiological process of death. The present version removes the distraction of intentional torts.

92. Although the defendant may, of course, have caused additional losses of another kind (eg the extra pain and suffering of dying from thirst). In Gregg v Scott, above n 53, at [206], Baroness Hale took the view that although the defendant had not, on the balance of probabilities, caused the losses claimed, ‘on conventional principles’ a ‘defendant is liable for any extra pain, suffering, loss of amenity, financial loss and loss of expectation of life which may have resulted’ from the breach (original emphasis).

93. Baker v Willoughby, above n 75, at 492A per Lord Reid.

94. Rothwell, above n 35.

95. Stevens, R Torts and Rights (Oxford: Oxford University Press, 2007).CrossRefGoogle Scholar

96. Ibid, p 2.

97. Ibid, ch 4.

98. Ibid, p 60.

99. Ibid, p 61.

100. Ibid, p 60.

101. Ibid.

102. Ibid, p 61.

103. See Street, above n 34.

104. Stevens, above n 95, pp 74–75.

105. Ibid, p 59.

106. Above n 75, at 492A.

107. See the main text accompanying above n 80.

108. It was precisely this point that led a number of their Lordships to speculate that unusual personal injury claims might fare better in contract, where breaches are actionable per se. See Rothwell, above n 35, at [59] per Lord Hope; [74] per Lord Scott; [105] per Lord Mance.

109. That is, financial loss that ‘is not the consequence of physical damage to the person's body or property’: Dugdale, AM and Jones, MA (eds) Clerk and Lindsell on Torts (London: Sweet and Maxwell, 19th edn, 2006)Google Scholar para [8–83].

110. Above n 2.

111. Lords Scott, Carswell and Brown; Lords Bingham and Walker dissented.

112. Robinson v Harman (1848) 1 Exch 850 at 855.

113. A further difference is that, since a breach of contract is actionable per se, the relevant ‘injury’ will always be the breach of contract.

114. Lavarack v Woods of Colchester Ltd[1967] 1 QB 278 at 294 per Diplock LJ (emphasis added).

115. Golden Victory, above n 2, at [13] per Lord Bingham.

116. Stevens, above n 95, p 70. Stevens's preferred term is ‘substitutive damages’.

117. (2007) 123 LQR 9 (commenting on the decision of the Court of Appeal: [2005] EWCA Civ 1190, [2006] 1 WLR 533).

118. Golden Victory, above n 2, at [13].

119. Ibid, at [41].

120. See Street, above n 34, at 71.

121. Golden Victory, above n 2, at [10] per Lord Bingham.

122. In essence, the difference between the contract rate and the market rate prevailing at the date of breach.

123. See Furmston, M (ed) The Law of Contract (London: Butterworths LexisNexis, 3rd edn, 2007) pp 1575–1597.Google Scholar

124. Demarco v Perins[2006] EWCA Civ 188, [2006] BPIR 645 at [74].

125. The merits of which were said to lie in the facilitation of settlement by pre-empting delaying tactics. See Golden Victory, above n 2, at [22]–[23] per Lord Bingham.

126. It is also questionable whether this interest in certainty might not be greater for the victims of serious personal injury, who (unlike most commercial traders) may be quite unable to proceed with their lives if the quantum of their entitlement is uncertain and if payment is not prompt.

127. Waddams, SM The Law of Damages (Toronto: Canada Law Book, 3rd edn, 1997) p vii.Google Scholar

128. BS & N Ltd (BVI) v Micado Shipping Ltd (Malta) (The ‘Seaflower’)[2000] 2 Lloyd's Rep 37 at 44 per Timothy Walker J: ‘This hand to mouth approach is further demonstrated by what actually happened…I reject any suggestion that this only happened because the charter had by then been terminated’ (emphasis added).

129. Golden Victory, above n 2, at [1] per Lord Bingham.

130. As Lord Mance had said in the Court of Appeal, [2005] EWCA Civ 1190, [2006] 1 WLR 533 at [26], the assessment of damages aims to reflect ‘the actual loss which the owners can, at whatever is the date of assessment, now be seen to have suffered as a result of the charterers' repudiation’ (emphasis added). This was expressly approved by Lord Carswell in the House of Lords: above n 2, at [63].

131. See the main text accompanying above nn 74–75.

132. Dillon, above n 62.

133. Kerry, above n 70.

134. See the discussion of Golden Victory, above n 110.

135. See Shavell, S Foundations of Economic Analysis of Law (Cambridge MA: Belknap Press of Harvard University Press, 2004) p 58 Google Scholar and pp 383–384 for some additional reasons as to why one might rationally wish to make gifts of one's property.

136. Calvert, above n 1, at [35].

137. Ibid, at [31].

138. Calvert, above n 7, at [196]: ‘The position would of course be otherwise if the problem gambler had sought to exclude himself from betting at any bookmakers by separate arrangements with each, since it would be no answer by one bookmaker to a claim for compensation for negligence to say that, but for his negligence, the gambler would have been harmed in the same way by the negligence of another’.

139. Calvert, above n 1, at [2]: ‘In the summer of 2006, the Gambling Act 2005 had been enacted but was not yet in force’.

140. Reeves v Commissioner of Police of the Metropolis[2000] 1 AC 360.

141. Calvert, above n 1, at [35].

142. Contrast the view of J Morgan ‘Causation and the compulsive gambler’[2009] CLJ 268. Morgan asserts that the result in Calvert is correct and that the case ‘could have been decided on simple factual “but for” grounds, by analogy with Barnett v. Chelsea and Kensington Hospital[1969] 1 Q.B. 428’. This approach not only fails to appreciate the distinction between injury and damage but also fails to give any consideration to the differences between the actual and hypothetical payments.

143. Calvert, above n 1, at [8].

144. Ibid, at [72].

145. The purpose of this subsection is merely to address an objection to negligence liability in a case like Calvert. Those interested solely in the issue of ‘losses in any event’ may proceed to the Conclusion.

146. Calvert, above n 1, at [47].

147. Or, for that matter, what was the legal position concerning the first attempted self-exclusion, after which Mr Calvert made net gains of £7000? See above n 5.

148. It should be noted that Mr Calvert could not have sued for the recovery of his lost wagers on the ground that they were paid under mistake. Mr Calvert intended to make the payments and there was no suggestion that he was labouring under the mistaken belief that he was not subject to a self-exclusion. The mistake was made by William Hill alone.

149. Although, in principle, the availability of an independent claim should not have affected the reasoning at all.

150. [1980] QB 677 at 695. The decision has been endorsed by the Court of Appeal both in Lloyds Bank plc v Independent Insurance Co Ltd[1999] 2 WLR 986 at 1002 per Peter Gibson LJ and in Rover International Ltd v Cannon Film Sales Ltd (No 3)[1989] 1 WLR 912 at 933 per Dillon LJ. See also Burrows, AS The Law of Restitution (London: Butterworths LexisNexis, 2nd edn, 2002) p 135 Google Scholar: ‘It is therefore now clear that Robert Goff J's approach constitutes good law’.

151. Simms, ibid, at 695.

152. Tang Hang Wu ‘Restitution for mistaken gifts’ (2004) 20 JCL 1. See, also, the dicta of Lord Scott in Deutsche Morgan Grenfell Group plc v Her Majesty's Commissioners of Inland Revenue[2006] UKHL 49, [2007] 1 AC 558 at [87].

153. [2008] EWHC 118 (Ch), [2009] Ch 162.

154. Ibid, at [25].

155. This stricter –‘sufficiently serious’– test is not confined to cases involving deeds of gift. In Ogilvie v Littleboy (1897) 13 TLR 399, at 400, Lindley LJ clearly stated that the serious mistake test applies to gifts made ‘whether by mere delivery or by deed’.

156. The test for causation favoured in Nurdin & Peacock plc v DB Ramsden & Co Ltd[1999] 1 WLR 1249 per Neuberger J and in Kleinwort Benson Ltd v Lincoln City Council[1999] 2 AC 349 at 372 per Lord Goff, 399 per Lord Hoffmann and 407–408 per Lord Hope.

157. William Hill's negligence in making the payment would be irrelevant when determining this prima facie liability. As Parke B held in Kelly v Solari 152 ER 24, (1841) 9 M & W 54, at 59, money paid under mistake of fact is generally recoverable ‘however careless the party paying may have been, in omitting to use due diligence to inquire into the fact’. See also Simms, above n 150 (claimant bank made payment having overlooked its customer's instructions to stop payment of a cheque) and Lady Hood of Avalon v Mackinnon[1909] 1 Ch 476 (gift made after claimant forgot the existence of a pre-existing fact).

158. Simms, above n 150, at 695C (emphasis added).

159. [1938] 1 KB 49.

160. Ibid, at 61 per Sir Wilfrid Greene MR.

161. And, on the facts of Morgan, the defendant had done so.

162. Morgan, above n 159, at 61–62.

163. Calvert, above n 1, at [2]: ‘In the summer of 2006, the Gambling Act 2005 had been enacted but was not yet in force’.

164. A factor which would probably also suffice to establish that the mistake was one of a ‘sufficiently serious’ nature.

165. This is distinguishable from the position in Morgan, where determining what constituted an overpayment could only be effected through an examination of the account qua gaming account and the amounts it specified as payable.

166. Simms, above n 150, at 698D–E.

167. Morgan, above n 159. Although Scott LJ speaks as if he is deciding the case on alternative grounds (at 67–68), Sir Wilfrid Greene MR is clear that his actual decision is based upon the illegality point and that he merely proceeds ‘to express my views’ on the mistake of fact aspect (at 62). As such, although mistake of fact forms an essential part of Scott LJ's reasoning, there is only a Court of Appeal majority for the illegality point.

168. Ibid, at 66–67.

169. Ibid, at 77.

170. Since its implication is that a series of gifts is, in law, one gift. However, if confined to the gaming context, it bears a degree of consistency with Lipkin Gorman (A Firm) v Karpnale Ltd[1991] 2 AC 548 at 582–583, which held that in determining the quantum of the casino's change of position, its total payouts should be aggregated, such that ‘by paying winnings on the first bet in excess of both, it should be able to deny liability in respect of the money received in respect of the second’. Lord Goff concedes that the ‘result may not be entirely logical’.

171. 8 & 9 Vict c 109.

172. Above n 170.

173. Ibid, at 561.

174. Seemingly on the ground that wagers constitute ‘transactions with which the time of the courts of law ought not to be occupied. A man who makes bets must take his chance of getting his money. A bet ought to be a contract of honour; and if the loser cannot pay, no action should be maintainable in respect of the debt’: Savage v Madder 36 LJ (Ex) 178.

175. Lipkin Gorman, above n 170, itself allowed a claim in ‘unjust enrichment’ that, on a literal reading of the wide words of s 18, would have been a ‘suit…brought…in any court…for recovering any sum of money…deposited in the hands of any person to abide the event on which any wager shall have been made’.

176. 156 ER 637, (1855) 10 Ex 737.

177. See, eg, Varney v Hickman 136 ER 881, (1847) 5 CB 271; Martin v Hewson 156 ER 637, (1855) 10 Ex 737; Hampden v Walsh (1875–76) LR 1 QBD 189.

178. Calvert, above n 7, at [182].

179. Relying upon Hill v William Hill (Park Lane) Ltd[1949] AC 530 at 548 per Viscount Simon.

180. Calvert, above n 7, at [181].