Introduction

The case of Christine Pert (Appellant) v John McCaffrey (Respondent) [2020] CSIH 5, adjudicated by the Scottish Court of Session on January 29, 2020, delves into the intricacies of unjustified enrichment within the context of cohabitation. This appeal challenges an interlocutor's decision by the Sheriff of North Strathclyde, which sustained the defender's plea regarding the relevancy and dismissed the pursuer's action for recompense based on a plea of unjustified enrichment. The central issue revolves around the applicability of the principle that recompense claims can only be pursued after exhausting ordinary remedies, specifically in cases where financial provision under section 28 of the Family Law (Scotland) Act 2006 has not been sought by the pursuer.

Summary of the Judgment

The Court of Session dismissed Christine Pert's appeal, upholding the sheriff's interlocutor which favored John McCaffrey. The court determined that Pert could not successfully claim recompense based on unjustified enrichment due to the principle of subsidiarity, which requires the exhaustion of ordinary legal remedies before resorting to equitable ones. Additionally, the claim was barred by prescription, as the relevant period had lapsed before Pert initiated her action. The court emphasized that the existence of an alternative remedy, namely section 28 of the Family Law (Scotland) Act 2006, rendered the unjustified enrichment claim untenable.

Analysis

Precedents Cited

The judgment extensively references pivotal cases that have shaped the doctrine of unjustified enrichment in Scots law:

• Varney (Scotland) v Lanark Town Council (1974) SC 245
• Morgan Guaranty Trust Co of New York v Lothian Regional Council (1995) SC 151
• Shilliday v Smith (1998) SC 725
• Dollar Land (Cumbernauld) v CIN Properties (1998) SC (HL) 90
• Courtney's Exrs v Campbell (2017) SCLR 387

These cases collectively examine the boundaries of unjustified enrichment, particularly focusing on whether such claims are permissible when other legal remedies are available. Notably, the trilogy of cases from the 1990s significantly redefined the approach to unjustified enrichment, moving away from earlier stringent requirements.

Legal Reasoning

The Court's reasoning centered on the principle of subsidiarity, which mandates that equitable remedies like recompense should only be sought after exhausting other legal avenues. Pert argued that recent case law had reshaped unjustified enrichment, relaxing prior restrictions. However, the court maintained that unless there are special or strong circumstances, the traditional requirement to seek alternative remedies remains intact. Furthermore, the claim was time-barred under the Prescription and Limitation (Scotland) Act 1973, as Pert failed to initiate her action within the prescribed period following the dissolution of the cohabitation.

The court also addressed the relationship between section 28 of the Family Law (Scotland) Act 2006 and common law remedies. It clarified that failing to seek financial provision under section 28 does not automatically preclude a common law claim for unjustified enrichment unless specific contractual agreements justify such exclusion.

Impact

This judgment reinforces the necessity of exhausting ordinary legal remedies before pursuing equitable claims like unjustified enrichment. It underscores the importance of adhering to prescribed timelines for legal actions, particularly in cohabitation disputes. Future cases will likely reference this decision when evaluating the interplay between statutory provisions and common law remedies, especially in scenarios involving financial disputes post-cohabitation.

Complex Concepts Simplified

Unjustified Enrichment

Unjustified enrichment occurs when one party benefits at the expense of another without a legal justification. In this context, Pert alleged that McCaffrey was enriched by receiving proceeds from the sale of property, benefiting from her financial contributions during their cohabitation.

Principle of Subsidiarity

The principle of subsidiarity dictates that equitable remedies, like recompense for unjustified enrichment, should only be sought after all ordinary legal remedies have been utilized. It ensures that the courts are not burdened with matters that can be resolved through existing legal channels.

Prescription

Prescription refers to the legal time limits within which a claim must be initiated. Under the Prescription and Limitation (Scotland) Act 1973, Pert's claim was barred because she did not initiate her action within the five-year period following the cessation of her cohabitation with McCaffrey.

Section 28 of the Family Law (Scotland) Act 2006

This section allows former cohabitants to seek financial provision from each other, considering factors like economic advantage or disadvantage stemming from their relationship. Pert did not utilize this statutory remedy within the required timeframe, which impacted her ability to claim unjustified enrichment.

Conclusion

The Christine Pert v John McCaffrey judgment serves as a crucial reference point in Scots law, emphasizing the enduring relevance of the principle of subsidiarity in claims of unjustified enrichment. It delineates the boundaries between statutory remedies and common law claims, underscoring the necessity for claimants to pursue all available legal avenues within prescribed periods. This decision not only reaffirms existing legal doctrines but also provides clarity on their application in complex cohabitation disputes, thereby shaping the landscape of future legal proceedings in similar contexts.