Hello there! Thank you for your question. I will try and help you with this.

The general rule is that if you receive a sum of money which is not lawfully due to you, but which you believe was, then you use it for expenses and other things you would not normally incur, then you may be able to lead a “change of position" defence. In other words, you would use the money for something unusual that you would not otherwise have used it for, and it would be unfair to expect that to be paid back now.

If you use the money to pay normal expenses, or things you are otherwise liable to pay, then it is unlikely that you could rely upon this defence. Such is the irony of the position, that you could go and buy a Ferrari, which you would not normally buy, and that would be fine, and you could rely upon the defence, but spending on life's little essentials, and you would not be entitled to rely upon that defence.

It is difficult to know what the position is paying towards the mortgage, is that is something you would have to pay, but not necessarily so quickly. I expect that the court might take the view that you could reverse the position, and so all to make a proper restitution to the employer for its overpayment. But, this is a difficult area of law, and they would need to be a proper consideration of the relevant legal authorities.

Often, an amount such as this, is more likely that the deal can be done, whereby you only pay a proportion of it back. Obviously, that is a matter subject to negotiation, and it might be worth retaining a solicitor to conduct limited negotiations with this kind of objective.

Does that answer your question?

I cannot advise you whether to pay it back or not, as I can offer legal advice, that is something only a solicitor in person can do. However, by making an offer to pay it back, so long as you make it “without prejudice", is something that the court would not be referred to, you would be free to try and negotiate sensible resolution, without the risk of court proceedings and/or added costs being incurred.

cannot offer legal advice .... spell checkers!

Sorry!

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