Where money is paid by mistake, a claim for restitution might be brought in equity. There has been difficulty in determining the limitation period for bringing a restitution claim, though, because this is not specifically dealt with in the Limitation Act 1980. The issue arose in this case.
Henderson J held that the point had been decided by the Supreme Court in Aspect Contracts v Higgins. There it was held that, in relation to a cause of action which arises from payment, "for this purpose, an independent restitutionary claim falls to be regarded as "founded on simple contract" within section 5 of the Limitation Act 1980" (section 5 provides that "an action founded on simple contract shall not be brought after the expiration of 6 years from the date on which the cause of action accrued").
Henderson J acknowledged that Professor McGee in his work on Limitation Periods cast doubt on section 5 applying to an action for money had and received, and said that "if the matter were free from authority, I would have much sympathy with that view, the force of which is indeed acknowledged by Hobhouse J in the Sandwell case and the restitution scholars to whom I have referred". However, the judge noted that Professor McGee's discussion on the topic pre-dated theAspect decision and so he held that the Aspect case "seems to me conclusive".