Barton v Morris [2023] UKSC 3

Mr Barton orally agreed with Foxpace Ltd that he would receive £1.2 million if a property called Nash House was sold to a purchaser he introduced for £6.5 million. He introduced Western UK (Acton) Ltd, but the eventual sale price was £6 million plus VAT after an issue concerning the proposed HS2 route emerged. The agreement said nothing expressly about payment if the property sold for less than £6.5 million. Barton claimed a reasonable fee based on an implied contractual term or unjust enrichment. The trial judge held that he was not entitled to payment. The Court of Appeal reversed that decision and held that reasonable remuneration was due. The defendants appealed to the Supreme Court.

Could Barton recover a reasonable fee through an implied term or unjust enrichment when the express condition for his £1.2 million contractual reward was not satisfied?

By a majority, the Supreme Court held that Barton was not entitled to payment. The express agreement allocated the risk by promising a substantial reward only if the sale achieved £6.5 million. It was not necessary for business efficacy, nor so obvious as to go without saying, that a reasonable fee would become payable at a lower price. Implying such a term would contradict the contractual allocation. The majority also rejected unjust enrichment because the services were rendered within the framework of a valid agreement governing when remuneration became due. Lord Leggatt dissented and would have implied a term for reasonable remuneration. Lord Burrows, also dissenting, would have allowed recovery in unjust enrichment.

Where an express contract makes remuneration conditional on a specified outcome, a court will not imply a reasonable-fee term that contradicts that bargain. Unjust enrichment ordinarily cannot be used to bypass the contractual allocation of the risk that the payment condition may fail.

The case reinforces the primacy of express contractual risk allocation across both contract and restitution. Silence about a lower-price sale did not create a gap that the majority considered the court free to fill; the agreed contingency explained why no payment arose. The decision should be read with Marks and Spencer plc v BNP Paribas, which restates the strict tests for terms implied in fact, and Attorney General of Belize, whose broader language must not replace those tests. The two dissents expose important debates about implied remuneration and when a valid contract leaves room for unjust enrichment.