Enrichment Requires a Transfer of Value: Clarifying “At the Expense Of” in Unjust Enrichment and Digital Likeness Cases
Lunak Heavy Industries (UK) Ltd & Anor v Tyburn Film Productions Ltd [2025] EWCA Civ 1643

1. Introduction

This Court of Appeal decision addresses an increasingly important intersection of unjust enrichment, contractual “blocking rights”, and the use of digital technology to recreate the likeness of deceased performers. It does so against the backdrop of the Star Wars franchise and the posthumous recreation of Peter Cushing as “Grand Moff Tarkin” in Rogue One: A Star Wars Story.

The central legal issue is narrow but significant: can a film producer and rights owner be liable in unjust enrichment to a third party where:

• the third party holds a contractual “veto” (a negative covenant) over the posthumous exploitation of the actor’s likeness; but
• the estate of the actor nevertheless grants a licence to the producers in breach of that covenant?

More specifically, the Court had to decide whether the alleged enrichment of Lunak Heavy Industries (UK) Ltd (“Lunak”) and Lucasfilm Ltd LLC (“Lucasfilm”) was “at the expense of” Tyburn Film Productions Limited (“Tyburn”) – a requirement for any personal claim in unjust enrichment.

The Court (The Lady Chief Justice, The Lady Carr of Walton-on-the-Hill, Sir Colin Birss, and Zacaroli LJ) held that Tyburn’s claim discloses no reasonable grounds for bringing a claim in unjust enrichment. It allowed the appeal, struck out the claim, and in doing so articulated an important clarification:

Where a defendant exploits rights granted by a third party (here, the deceased actor’s estate), and the claimant merely holds a contractual negative right (a blocking or veto right) breached by that third party, there is no “transfer of value” from the claimant to the defendant. Accordingly, the defendant is not enriched “at the expense of” the claimant for the purposes of unjust enrichment.

The judgment also firmly endorses a robust approach to strike-out and summary judgment even in developing areas like unjust enrichment, where the claim is clearly beyond the acceptable margin of arguable extension.

2. Background and Facts

2.1 The original Star Wars appearance and agreements

Peter Cushing appeared as Grand Moff Tarkin in the 1977 film now known as Star Wars: Episode IV – A New Hope. His appearance was governed by a 1976 agreement between Peter Cushing Productions Limited (“PCPL”) and Star Wars Productions Limited (the “1976 Agreement”) [§3].

Mr Cushing died in 1994. Many years later, his likeness was digitally recreated in the 2016 film Rogue One: A Star Wars Story by using actor Guy Henry and applying sophisticated digital effects [§4].

2.2 The 1993 Tyburn agreements and the “blocking” right

Tyburn, through its executive Kevin Francis, had a long-standing relationship with Mr Cushing and had used him in several films. In 1993:

• By a Services Agreement (2 August 1993), Tyburn engaged Mr Cushing (through PCPL) to appear in a TV film entitled A Heritage of Horror (the “TVM”) [§7]. PCPL granted Tyburn the exclusive services of Mr Cushing for a defined period.
• On the same date, a Letter Agreement was entered into between Tyburn, Mr Cushing and PCPL, specifically addressing the consequences of Mr Cushing’s terminal illness [§6]–[§8].

The key provisions of the Letter Agreement were:

1. Clause (e): positive licence in favour of Tyburn – PCPL and Mr Cushing agreed that, for the production, completion and exploitation of the TVM, Tyburn could make extensive use of techniques including:
   • doubles, stand-ins, stunt performers;
   • prosthetic make-up;
   • extracts from other films featuring Mr Cushing;
   • projections, special effects, computer generated imagery (“CGI”); and
   • “all and any successors or replacements” of such processes [§8].
   This was in order “to supplement and/or to compliment and/or to facilitate and/or to complete and/or to exploit Mr Cushing’s performance in the TVM, to an unlimited greater extent than would be customary with an actor of Mr Cushing’s standing” [§8].
2. Clause (h): negative “blocking” right in favour of Tyburn – it provided that if, as a result of illness, death or for any reason, the TVM was not “produced and/or completed and/or exploited”, then:

   PCPL and Mr Cushing warranted that neither of them would permit Mr Cushing’s participation in any film or programme whereby he appears other than in person (in or out of character) by way of being reproduced through any of the processes listed in clause (e), without Tyburn’s express prior written consent, which could be granted or withheld at Tyburn’s “sole and absolute discretion” [§9].

3. Clause (i): binding successors – Mr Cushing agreed to make all arrangements to ensure his successors, administrators, beneficiaries and executors were bound by clause (h) [§10].

In reality, the TVM was never made and no services were performed under the Services Agreement [§11].

2.3 The 2016 Agreement and Rogue One

In 2016, Lunak produced Rogue One, using intellectual property relating to the Star Wars franchise owned or controlled by Lucasfilm [§5]. A memorandum of agreement dated 10 February 2016 (the “2016 Agreement”) granted Lunak permission from the executors of Mr Cushing’s estate (“the Executors”, “the Estate”) to reproduce Mr Cushing’s likeness in connection with the production, exploitation and promotion of Rogue One [§5].

When Tyburn learned of the project, it wrote to Lucasfilm asserting that, under the 1993 Letter Agreement, Mr Cushing and his Estate were not permitted to allow another production to “resurrect” his likeness without Tyburn’s consent [§12]. Tyburn claimed:

• approximately £250,000 spent on preparing the TVM; and
• loss of the commercial benefit of being “first out of the gate” with a posthumous film featuring Mr Cushing [§12].

No accommodation was reached. Rogue One was completed and became a major commercial success [§12].

2.4 The claims against different defendants

Tyburn issued its claim on 2 August 2021 [§13]. Its causes of action applied differently to different defendants:

• The Executors (first and second defendants) – sued for breach of contract (breach of clause (h) of the Letter Agreement) [§14]. Those claims settled in 2022 (as to Mrs Broughton) and 2024 (as to Mr Connor, the substituted executor).
• Associated International Management LLP (third defendant) – sued in damages for inducing the Executors’ breach of Tyburn’s contractual rights [§15].
• Lunak (fourth defendant) and Lucasfilm (fifth defendant) – sued only in unjust enrichment [§16].

The appeal concerns solely this unjust enrichment claim against Lunak and Lucasfilm.

3. The Unjust Enrichment Claim: Structure and Pleading

Tyburn framed its unjust enrichment case in the familiar four-question structure derived from Lord Steyn in Banque Financière de la Cité v Parc (Battersea) Ltd [1999] 1 AC 221 at 227 [§17]:

1. Has the defendant benefited (been enriched)?
2. Was the enrichment at the claimant’s expense?
3. Was the enrichment unjust?
4. Are there any defences?

The pleaded elements against Lunak and Lucasfilm were [§16]:

1. Enrichment: the defendants were enriched by:
   • the purported right/licence to reproduce Mr Cushing’s likeness in connection with Rogue One; and/or
   • their commercial exploitation and use of that right; and/or
   • the above matters without seeking Tyburn’s permission.
2. At Tyburn’s expense: the enrichment was said to be at Tyburn’s “direct expense” and/or obtained “as part of a coordinated or closely related transactions” between Tyburn, the Executors and the appellants.
3. Unjust factors: the enrichment was unjust because:
   • Tyburn was unaware of the fact and circumstances of the enrichment; and/or
   • Tyburn reasonably but mistakenly believed the Executors and the agent intended to involve Tyburn in arrangements concerning the reproduction of Mr Cushing’s likeness in Rogue One.
4. Remedy: restitution of the value of the rights obtained and/or exploited by the appellants at Tyburn’s expense, in a sum to be assessed.

On appeal, however, all elements other than “at the expense of” were assumed in Tyburn’s favour. The question was whether, even on those assumptions, the enrichment could be said in law to have been at Tyburn’s expense [§21].

4. Procedural History and the Strike-Out / Summary Judgment Context

4.1 Applications before the Master and the Deputy High Court Judge

Lunak and Lucasfilm applied on 25 May 2022 to strike out or summarily dismiss the claim against them [§18], relying on CPR 3.4(2)(a) (no reasonable grounds) and CPR 24 (summary judgment).

Master Kaye dismissed that application on 8 December 2023. She considered that unjust enrichment, especially in “three-party” or indirect benefit cases, lay at “the far reaches of the current scope” of unjust enrichment and was highly fact-sensitive; she therefore could not say the claim was clearly bound to fail or fanciful [§18].

An appeal to a Deputy High Court Judge (Tom Mitcheson KC) was also dismissed on 9 September 2024 [§19]. The Judge, invoking a passage from Peter Gibson LJ in Richards v Hughes [2004] EWCA Civ 266 and Lord Browne-Wilkinson in Barrett v Enfield LBC [2001] 2 AC 550, considered it inappropriate to strike out in a developing area of law where he could not be “certain that the claim is bound to fail” [§19].

4.2 The narrowed issue on appeal

On further appeal, Arnold LJ granted permission on a single ground [§20]: that the Judge had erred in failing to conclude that there was no real prospect of Tyburn establishing that any enrichment of Lunak and Lucasfilm was “at the expense of” Tyburn.

By the time of the Court of Appeal hearing, the issues had been significantly narrowed [§21]. The Court was required to assume:

• that Lunak and Lucasfilm were enriched by reason of the 2016 Agreement;
• that such enrichment was unjust; and
• that there were no available defences (e.g. bona fide purchaser for value).

The sole issue was whether, as a matter of law on those assumed facts, the enrichment was “at the expense of” Tyburn.

5. Summary of the Court of Appeal’s Decision

The Court:

• Allowed the appeal;
• Held that there was no realistic (or legally coherent) prospect of establishing that any enrichment of Lunak and Lucasfilm was at Tyburn’s expense; and
• Struck out the unjust enrichment claim against them [§55], [§58].

Key holdings include:

1. No “transfer of value” from Tyburn to Lunak/Lucasfilm: Nothing that “belonged” to Tyburn was transferred to Lunak or Lucasfilm. The only rights exploited were rights held by the Estate. Tyburn’s rights under the 1993 Letter Agreement were purely contractual; they were not property rights, and they were neither used nor transferred when the Estate granted the 2016 licence [§37]–[§41].
2. “Primacy” or “first resurrection” is commercially relevant but not a separate legal right: The idea that Tyburn had a “primacy” right to be the first entity to resurrect Cushing’s likeness does not change the nature of its legal rights. At best, that primacy explains why the negative covenant had commercial value, but it does not convert it into something that can be said to have been transferred to the appellants [§42]–[§45].
3. Direct enrichment analysis fails: The case does not fit within the paradigm of direct provision of a benefit, nor within any recognised exception such as agency, assignment, tracing, discharge of another’s debt, or sham/coordinated schemes [§31], [§47].
4. “Co-ordinated transactions” argument fails: The Letter Agreement and the 2016 Agreement cannot be treated as “co-ordinated transactions” that together produce a transfer of value from Tyburn to the appellants. The 2016 Agreement was not within the contemplation of the 1993 parties; more fundamentally, nothing of value left Tyburn under the 1993 Agreement [§50]–[§52].
5. “Interceptive subtraction” line of authority does not assist: Even if construed as a modest extension of direct enrichment, those cases still require that the defendant intercept something that was otherwise destined for the claimant. That is not what happened here—the rights exploited by the appellants remained at all times rights of the Estate [§53]–[§54].
6. Proper cause of action is contractual (and possibly inducing breach), not unjust enrichment: The Court emphasised that the proper legal remedy for the Executor’s conduct was breach of contract (and, in principle, inducing breach of contract), not unjust enrichment [§46].
7. Strike-out appropriate even in a developing field: Although unjust enrichment is a developing area [§25], that does not justify refusing to determine clear-cut legal points on a summary basis, especially where the case clearly falls beyond the margin of arguable development [§26], [§56]–[§57].

6. Precedents and Authorities Cited

6.1 Banque Financière de la Cité v Parc (Battersea) Ltd [1999] 1 AC 221

Lord Steyn’s well-known four-question structure for unjust enrichment (benefit, “at the expense of”, unjust factor, defences) was cited [§17]. The Court of Appeal emphasised, following Lord Reed in ITC, that these questions are “broad headings” rather than operative legal tests [§28(3)].

6.2 Easyair Ltd (t/a Openair) v Opal Telecom Ltd [2009] EWHC 339 (Ch)

Lewison J’s summary of principles guiding strike-out and summary judgment applications was adopted [§22]–[§23]. The Court highlighted in particular:

• The requirement that a claim have a “realistic” (not just arguable) prospect of success; and
• Where an issue is one of law and the court has all necessary material and submissions, it should “grasp the nettle” and decide the point [§23].

6.3 Barrett v Enfield London Borough Council [2001] 2 AC 550 and Richards v Hughes [2004] EWCA Civ 266

In Barrett, Lord Browne-Wilkinson cautioned against striking out in novel or developing areas of law (there, the scope of negligence liability for the exercise of statutory duties/powers). That passage was picked up in Richards and then relied on by the Deputy Judge in refusing to strike out Tyburn’s claim [§19], [§24].

The Court of Appeal accepted that unjust enrichment is a developing field [§25], but stressed that this does not preclude summary determination where the claim clearly falls outside the scope of existing doctrine [§26], [§56]–[§57].

6.4 Investment Trust Companies v Revenue & Customs Commissioners [2017] UKSC 29; [2018] AC 275 (“ITC”)

This was the principal authority on the “at the expense of” requirement. Lord Reed’s judgment in ITC sought to resolve uncertainties in prior case law and to articulate a principled framework. Key elements adopted by the Court of Appeal are:

1. Purpose of unjust enrichment: it exists to “correct normatively defective transfers of value” [ITC, §42–43; CoA §29]. A claim therefore requires:
   • a benefit to the defendant;
   • a correlative loss (or giving-up of something of value) by the claimant; and
   • a legally recognised defect in the transfer (mistake, failure of basis, compulsion, etc.).
2. “At the expense of” is not a statutory-style test: the phrase is a label, not a self-contained legal test. The courts must instead identify whether there has been a transfer of value in a way that corresponds, in substance, between claimant and defendant [§28(3), §29–§30].
3. Direct provision as the “general rule”: in most cases, the defendant is enriched directly by the claimant. This direct nexus is the norm [ITC §46–47; CoA §31].
4. Recognised exceptions or equivalents to direct provision include:
   • agency (where the agent acts as proxy for the principal);
   • assignment of a restitutionary right;
   • sham or disregarded intervening transactions;
   • “co-ordinated” transaction schemes where multiple steps effectively constitute a single transfer of value;
   • cases where the defendant receives property into which the claimant can trace an interest; and
   • where the claimant discharges a debt owed by the defendant to a third party.
   These categories were expressly referenced by the Court at [§31].
5. Difficulty where no direct provision and no proxy-equivalent: where the defendant has not received a benefit directly from the claimant, no agency is involved, and the benefit is not property in which the claimant has (or can trace) an interest, it is “generally difficult” to establish “at the expense of” [ITC §51; CoA §31].
6. Openness to limited further refinement: Lord Reed recognised that the general rule might require “refinement” and that it would be “unwise” to exclude the possibility of genuine exceptions or other approaches at this stage of the law’s development [ITC §50; CoA §32, §49].

The Court of Appeal applied this framework and held that Tyburn’s case lay “beyond the margin” of any legitimate extension [§26].

6.5 Goff & Jones and “interceptive subtraction”

The Court referred to Goff & Jones, The Law of Unjust Enrichment (10th ed) and the category sometimes described as “interceptive subtraction” [§53]. These cases arise where the defendant intercepts a benefit which was destined for the claimant (for example, usurping an office and receiving the emoluments that rightfully belong to the lawful office-holder).

Tyburn sought to invoke this line of authority as a possible (modest) extension of the direct enrichment rule. The Court rejected the analogy on the basis that:

• even in interceptive subtraction, there is still a transfer of a specific “thing” of value from claimant to defendant; and
• here, the rights licensed by the Estate in 2016 were never within Tyburn’s grant of rights under the 1993 Letter Agreement—they always belonged to the Estate [§54].

7. The Court’s Legal Reasoning

7.1 The “transfer of value” requirement

The Court’s central doctrinal move was to insist, in line with ITC, on a transfer-of-value analysis. Quoting and applying Lord Reed’s approach, the Court held:

• There must be something that can properly be described as a transfer of value—value leaves the claimant and appears with the defendant [§29–§30].
• This entails the claimant’s “loss” in a special sense: the claimant gives up something of value via the provision of the benefit. It is not the same as loss in the law of damages but focuses on the correlative movement of value [§30].
• Whatever else unjust enrichment might accommodate, it cannot operate where nothing at all has moved from the claimant to the defendant [§37].

7.2 Why Tyburn’s “transfer” argument failed

Tyburn’s primary case was that Lunak and Lucasfilm were directly enriched at its expense by a transfer to them of Tyburn’s rights under the Letter Agreement [§33]. It tried to characterise these rights as:

• “akin to property rights” because they related to Mr Cushing’s performance and image rights; and
• a special “primacy” right to be the first to “resurrect” Mr Cushing’s likeness [§34]–[§36], [§42].

The Court rejected this analysis for several reasons:

1. No proprietary rights held by Tyburn: Tyburn itself accepted that it did not own any intellectual property or personal image rights in Mr Cushing. Those rights were held by Cushing (in life) and then by the Estate [§38].
2. Tyburn’s rights were purely contractual:
   • Clause (e) conferred a positive licence to use certain techniques only for the TVM [§39–§40].
   • Clause (h) conferred a negative right: a promise that, if the TVM was not made/ completed/exploited, neither Cushing nor PCPL (and via clause (i), his successors) would allow others to use similar techniques to represent him in other films without Tyburn’s consent [§39].
3. No use or transfer of Tyburn’s contractual rights:
   • The appellants’ use of the Estate’s rights to recreate Cushing for Rogue One was not an exploitation of Tyburn’s clause (e) rights; those rights were tied specifically to production and exploitation of the TVM [§40].
   • Similarly, the Estate did not “exercise” a veto right belonging to Tyburn; it simply breached its contractual promise not to permit such use by others [§41].
4. “Primacy” is commercial, not proprietary, value:
   • Even if clause (h) is construed (as Tyburn argued) to apply while the TVM remains unproduced, the idea that Tyburn had a “first to resurrect” privilege does not alter the legal nature of its rights [§42]–[§45].
   • Any primacy simply explained why the blocking right might have commercial value, but it did not make it a property right nor something that could be notionally “transferred” to the appellants [§45].
5. Breach of contract ≠ transfer of value:
   • What occurred in 2016 was, on the Court’s assumption, a breach by the Executors of their contractual duty under clause (h) [§41].
   • The law already provides a remedy in such circumstances: damages for breach of contract, and potentially the tort of inducing breach of contract against a third party who knowingly induces or procures that breach [§46].
   • That does not equate to a transfer of some asset, right or power from Tyburn to the appellants.

The Court therefore concluded that Tyburn’s primary (direct transfer) case was “wrong in law” [§47]. There was simply no “thing” that had passed from Tyburn to Lunak/Lucasfilm.

7.3 The “co-ordinated transactions” argument

As a fallback, Tyburn argued that the enrichment was at its expense indirectly because:

• the 1993 Letter Agreement and the 2016 Agreement were part of a series of “co-ordinated transactions”; and
• the benefit exploited by the appellants was causally connected to the rights conferred on Tyburn [§48].

The Court analysed this by reference to Lord Reed’s discussion of co-ordinated transactions in ITC [§31], [§51]. It held:

1. True meaning of “co-ordinated transactions”:
   • In ITC-type scenarios, multiple steps are treated as a single scheme to reveal a substantive transfer of value from claimant to defendant.
   • Value leaves the claimant via one transaction and reaches the defendant via another, but the law “looks through” the steps because of agency, sham, assignment, or because they form a unified scheme [§51].
2. Why that analysis is inapplicable here:
   • Nothing left Tyburn under the 1993 Letter Agreement. If anything, value moved in the opposite direction: Tyburn received rights from Cushing/PCPL (the positive licence and the negative covenant) [§52].
   • The only transaction effecting any movement of value to Lunak and Lucasfilm was the 2016 Agreement between the Estate and the appellants [§52].
   • The 1993 and 2016 arrangements were separated by 23 years, and the 2016 Agreement was not within the contemplation of the 1993 parties [§50].

Therefore, the concept of co-ordinated transactions could not salvage Tyburn’s unjust enrichment claim [§50]–[§52].

7.4 Interceptive subtraction and its limits

Tyburn also sought to rely on an “interceptive subtraction” analogy [§53]. In such cases, the defendant receives from a third party money or value that, but for the defendant’s intervention, would have gone to the claimant (e.g. an usurped office and fees for that office).

The Court acknowledged this line of authority but emphasised:

• At the heart of these cases remains a specific thing of value to which the claimant was entitled that is intercepted by the defendant [§54].
• Here, the “thing” granted in 2016—the licence to exploit Mr Cushing’s likeness in Rogue One—was, and always had been, an asset of the Estate. It was not something to which Tyburn was itself entitled as of right; Tyburn only had a contractual negative covenant restricting the Estate’s freedom to grant such a licence [§54].

Accordingly, the interceptive subtraction analogy collapsed on the same fundamental point: no transfer of any asset, entitlement or property from Tyburn to the appellants.

8. Key Legal Concepts Simplified

8.1 Unjust enrichment and “at the expense of”

A claim in unjust enrichment broadly requires the claimant to show:

1. The defendant was enriched (obtained some benefit or value);
2. The enrichment was at the claimant’s expense (there was a transfer of value from the claimant to the defendant);
3. The enrichment was unjust (for a recognised reason, such as mistake, failure of basis, duress, etc.); and
4. No defence bars recovery.

The phrase “at the expense of” does not mean “in some broad sense at the claimant’s cost or to the claimant’s detriment”. It has a more specific sense: the defendant’s gain must correspond to the claimant’s loss in the sense of a transfer of value. The defendant must have become better off because the claimant gave up something of value.

8.2 Direct and indirect enrichment

• Direct enrichment – The defendant receives a benefit straight from the claimant (e.g. claimant pays defendant money by mistake).
• Indirect or three-party enrichment – Value moves via a third party or through multiple steps. The law is more cautious here, and will usually only admit such claims where the third party is:
  • an agent of the claimant or defendant;
  • merely a conduit; or
  • part of a “scheme” that can be collapsed into a single transfer of value.

ITC emphasised that where there is no direct dealing, no agency, and no property that can be traced, it is generally hard to say that a defendant has been enriched at the claimant’s expense.

8.3 Property rights vs contractual rights

A crucial distinction in the present case is between:

• Property rights – rights in rem, such as ownership of intellectual property, which are enforceable against the world (e.g. copyright, performance rights, image rights where recognised); and
• Contractual rights – rights in personam, enforceable only against the other contracting party.

Tyburn did not own any property rights in Cushing’s likeness or performances. It held:

• a contract-based licence to use his likeness/performances for the TVM; and
• a contract-based negative covenant that the Estate would not license others to use Cushing’s likeness in similar ways if the TVM was not made.

When the Estate granted the 2016 licence to Lunak, it breached that promise. But:

• The licence granted in 2016 was a disposition of the Estate’s own property rights;
• No proprietary interest of Tyburn was divested or transferred; and
• The Estate’s breach did not “turn” Tyburn’s contractual rights into something that could be treated as having passed to Lunak or Lucasfilm.

8.4 Negative covenants and “blocking rights”

A negative covenant (or blocking right) is a promise not to do something. Here, the Estate promised:

• not to allow Mr Cushing’s likeness to be reproduced in specified ways in any other film/programme, if the TVM was not made, without Tyburn’s consent.

The value of such a covenant can be:

• to protect exclusivity or first-mover advantage (here, being the first to resurrect Cushing’s likeness); or
• to secure a commercial bargaining position (others must negotiate with the veto-holder for consent).

However, breach of a negative covenant does not, by itself, mean the breaching party has “transferred” the veto-holder’s rights to someone else. It simply means the covenantor has broken its promise. The legal remedy lies in contract (and, against third parties who procure the breach, in the tort of inducing breach of contract).

8.5 Interceptive subtraction

This describes cases where:

• the claimant is entitled to receive a payment or asset;
• a third party is about to transfer that asset to the claimant; but
• the defendant steps in and, by wrongful conduct, diverts the asset to itself.

The key is that the very thing which the claimant was due is what the defendant receives. In Lunak v Tyburn, by contrast, Tyburn was never entitled to the Estate’s exploitation rights in the abstract; it was entitled only to a promise that those rights would not be exercised in certain ways without its consent.

9. Impact and Significance

9.1 For unjust enrichment doctrine

The judgment strongly reinforces the ITC approach and clarifies several points:

1. No expansion based on “fairness” alone: The Court reiterates ITC’s warning that unjust enrichment is not a free-ranging fairness jurisdiction. Doctrinal boundaries matter, particularly the necessity of a transfer of value [§28(1)].
2. Transfer-of-value concept is central and limiting: Courts will insist on identifying:
   • a definable “thing” or value leaving the claimant; and
   • that same value appearing with the defendant (directly or via recognised exceptions).
   Absent that, the “at the expense of” requirement fails [§37]–[§38], [§47], [§54].
3. Contractual negative rights are unlikely to ground “at the expense of”: Where the claimant’s interest is only a negative covenant restraining what a third party may do with its own property, and that third party breaches the covenant by dealing with the defendant, this will normally be a matter for contract/tort, not unjust enrichment.
4. Co-ordinated transactions and interceptive subtraction remain narrow: The Court resists invitations to use these labels to dilute the requirement for a genuine transfer of value linked to the claimant [§51]–[§54].

9.2 For entertainment, IP and “digital resurrection” cases

In the context of modern film-making and digital cloning of performers, the case has practical implications:

• Estates remain the key holders of posthumous exploitation rights, subject to whatever contractual obligations they owe (e.g. negative covenants) to third parties.
• Producers obtaining licences from estates are unlikely to face unjust enrichment liability to third parties who hold only contract-based blocking rights, even if they might face (in some cases) claims in inducing breach of contract.
• “Primacy” or first-mover commercial advantages do not, without more, constitute a proprietary or restitutionary interest capable of being transferred for the purposes of unjust enrichment.

The case therefore brings a degree of certainty to an area where technological developments (digital doubles, CGI, AI-based likeness generation) are rapidly outpacing traditional legal frameworks. It signals that English unjust enrichment law will not readily expand to create quasi-proprietary rights over such “primacy” interests unless they can be anchored in orthodox concepts of transfer, property or tracing.

9.3 For civil procedure: summary determination in developing fields

On the procedural side, the decision is a firm reaffirmation of:

• Lewison J’s guidance in Easyair – courts should resolve pure questions of law summarily when the material is available [§23]; and
• the limits of the Barrett v Enfield caution – the fact that a field is “uncertain and developing” does not license courts to avoid ruling on clearly hopeless claims [§24]–[§26], [§56]–[§57].

For litigants, this underlines:

• Defendants in restitutionary claims can and should seek early determination of purely legal flaws, particularly around “at the expense of” where no plausible transfer of value can be identified.
• Claimants must be careful not to rely on the “developing” nature of unjust enrichment as a shield against strike-out where their theory of enrichment is doctrinally unsound.

9.4 For alternative causes of action

The Court’s explicit reference to inducing breach of contract is also significant [§46]. It emphasises that:

• Where a third party’s enrichment results from another’s breach of a contractual promise owed to the claimant, the correct framework is typically contract plus the economic torts—not unjust enrichment.
• This delineation preserves conceptual clarity between unjust enrichment (focused on transfers of value) and the tort of inducing breach (focused on wrongful interference with contractual relations).

Practitioners confronted with analogous fact patterns (e.g. wrongful exploitation of image rights, exclusivity clauses, or blocking rights) should therefore:

• prioritise contractual remedies against the covenantor; and
• consider carefully whether the factual and mental element requirements for inducing breach of contract can be met in relation to the third-party beneficiary.

10. Conclusion

The Court of Appeal in Lunak Heavy Industries (UK) Ltd & Anor v Tyburn Film Productions Ltd makes two major contributions to English private law:

1. It clarifies and consolidates the requirement of a transfer of value as central to the “at the expense of” element in unjust enrichment, especially in three-party and modern digital rights contexts. Contractual blocking or veto rights—however commercially valuable—do not readily translate into an enrichment-based proprietary interest in the defendant’s hands.
2. It affirms that summary determination is appropriate in unjust enrichment claims where the alleged pathway from the claimant’s right to the defendant’s gain cannot, even on assumed facts, be mapped as a transfer of value within the ITC framework. Unjust enrichment remains a structured, rule-based jurisdiction, not an open-ended vehicle for doing “rough justice”.

Tyburn’s understandable grievance—that a carefully negotiated veto was ignored and its chance to be first to “resurrect” Peter Cushing was lost—finds recognition only within the law of contract (and potentially the economic torts), not unjust enrichment. The Estate may have broken its promise, and others may conceivably have induced that breach, but nothing of Tyburn’s was ever transferred to Lunak or Lucasfilm.

In a landscape increasingly populated by digital doubles and posthumous performances, this decision provides a clear doctrinal anchor: no transfer, no unjust enrichment. Any expansion of protection for “primacy” or posthumous control over celebrity likenesses will have to come from contractual drafting, statutory reform, or targeted development of other private law doctrines—not from stretching unjust enrichment beyond its structural foundations.