Shilliday v Smith
| Jurisdiction | Scotland |
| Judgment Date | 22 May 1998 |
| Date | 22 May 1998 |
| Docket Number | No 66 |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION
Unjustifie enrichment—Recompense—Repetition—Condictio causa data causa non secuta—Payments made in respect of materials and work carried out on defender's property by pursuer—Payments made to the defender—Whether payments in contemplation of marriage—Whether payments made on condition that marriage took effect—Parties not getting married—Whether pursuer entitled to repayment
The parties formed a relationship and lived together in a cottage belonging to the pursuer. The defender thereafter bought a house which was in a bad state of repair and the parties discussed getting married. They became engaged after which they continued to live together as man and wife in the pursuer's cottage. The pursuer was, however, aware that her son was subsequently due to move into the cottage. The pursuer paid for materials and remedial work carried out on the defender's property. The relationship came to an end and the pursuer thereafter sought repayment of the sums expended. The sheriff granted decree in the pursuer's favour. Following an unsuccessful appeal to the sheriff principal, the defender appealed to the Court of Session.
Held (1) that the larger part of the pursuer's claim was based on the fact that in contemplation of the parties' marriage she paid for repairs and for materials used for repairs to the defender's house and that she installed various items in the house and garden with the value of the benefit conferred upon the defender being the cost of the various materials, repairs and items; (2) that, in so far as the pursuer craved the court to ordain the defender to pay her the costs of the various materials, repairs and items for which she paid and which he enjoyed, she sought payment of a sum of money which would reverse the defender's enrichment by transferring from him to her a sum representing the value of the benefit enjoyed by him as a result of the outlay incurred by her, this was a claim for recompense; (3) that the second element sought by the pursuer was a sum paid by her to the defender who then used that sum to payor materials and work, which constituted a claim for repetition of money; (4) that both aspects of the pursuer's claim fell within thecondictio causa data causa non secuta; and (5) that the basis of liability to reverse unjust enrichment was not contractual but a separate duty imposed by law so that there was no need to point to any kind of contract under which the pursuer paid the sums on condition of the marriage taking place; it was sufficient for the pursuer to prove that she expended the sums “in contemplation of” marriage and that that marriage had failed to materialise; and appealrefused.
Observed (per the Lord President (Rodger) that discussions of unjust enrichment were bedevilled by language which was often almost impenetrable, but the significance of one person being unjustly enriched at the expense of another was that in general terms it constituted an event which triggered a right in that other person to have the enrichment reversed.
Authorities discussed.
Mrs Isobel Helen McLeod Or Shilliday brought an action of payment in the sheriff court at Perth against William Smith.
At advising, the sheriff granted decree in the pursuer's favour.
The defender appealed to the sheriff principal, who, at advising, refused the appeal.
The relevant findings of the sheriff and sheriff principal appear sufficiently from the opinion of the Lord President (Rodger).
The defender thereafter appealed to the Court of Session.
Cases referred to:
Buchanan v StewartUNK (1874) 2 R 78
Cantiere San Rocco v Clyde Shipbuilding and Engineering Co 1923 SC (HL) 105
Dollar Land (Cumbernauld) Ltd v CIN Properties LtdSC1996 SC 331
Fernie v RobertsonUNK (1871) 9 Macph 437
Morgan Guaranty Trust Company of New York v Lothian Regional CouncilSC 1995 SC 151
Newton v NewtonENR 1925 SC 715
Rankin v WitherUNK (1886) 13 R 903
Textbooks etc referred to:
Birks, An Introduction to the Law of Restitution (1989), pp 9–27
Birks, “Restitution: A View of the Scots Law”(1985) 38 CLP 57
Birks, “Six Questions in Search of a Subject—Unjust Enrichment in a Crisis of Identity” 1985 JR 227
Stair, Institutions (2nd edn), I vii 7
The cause called before the First Division, comprising the Lord President (Rodger), Lord Kirkwood and Lord Caplan for a hearing on the summar roll.
At advising, on 2 April 1998—
LORD PRESIDENT (Rodger)—In September 1988 Mrs Isobel Shilliday, the pursuer, began to associate with Mr William Smith, the defender, and about July of the following year they started to live together in a house known as Lauriston and the parties discussed getting married. In about August 1990 they became engaged, after which they continued to live together as man and wife in the pursuer's cottage. The pursuer was, however, aware that her son was due to move into the cottage in the course of 1991.
When the defender bought Lauriston it was in a state of disrepair. From about the beginning of 1990 various works were carried out: in particular, doors, wood fittings and skirting boards were replaced; central heating was installed; the bathroom was fitted out and the window replaced; a conservatory was added and a garden wall was put up. In September 1991 the parties moved to Lauriston, where they continued to live together. The work on the house went on and was almost complete by Christmas 1992, but unfortunately by that time the defender had become aggressive towards the pursuer and one evening she came home from work to find that he had locked her out of the house. As a result she was homeless for six months.
The dispute between the parties concerns payments by the pursuer in connection with the works on Lauriston. Using funds from a legacy, she made what amounted to a substantial contribution to the repair work. In some cases she made payments to suppliers of materials while in others she paid those who worked on the house. All told, for materials and work she paid £7,018.38 to various people, including her son. The pursuer also paid sums totalling £1,880 to the defender, who then used them to pay for materials and work. In addition she bought a number of items, worth in total £756.33, which she put into the house and garden and which she had to leave behind when she was put out of the house.
The pursuer sued the defender for recovery of her total expenditure of £9,654.71 and after a proof the sheriff pronounced decree for that sum. The sheriff principal having dismissed his appeal, the defender appealed to this court. Before us his counsel did not dispute the quantification of any of the elements in the pursuer's claim, but argued, rather, that he should not have been held liable at all.
Some indication of the nature of the pursuer's case is to be found in her first plea-in-law: “The pursuer having paid the monies condescended upon to or for the benefit of the defender and having installed the various items condescended upon at the defender's said dwellinghouse at Lauriston, all on condition that the defender and she would get married and the said condition having failed to materialise, the defender should make payment as craved.”
Although, quite properly, this is not spelled out in her plea-in-law, at the most general level the pursuer's case depends on the defender's alleged unjust enrichment at her expense. Discussions of unjust enrichment are bedevilled by language which is often almost impenetrable. Anyone who tries to glimpse the underlying realities must start from the work of Professor Peter Birks, the Regius Professor of Civil Law at Oxford, in particular his book An Introduction to the Law of Restitution (paperback edition, 1989) and his two ground-breaking articles on Scots law, “Restitution: A View of the Scots Law” (1985) 38 Current Legal Problems 67 and “Six Questions in Search of a Subject—Unjust Enrichment in a Crisis of Identity”, 1985 JR 227. Professor Birks (Introduction, pp 9–27) and many others have pondered what is meant by unjust enrichment. While recognising that it may well not cover all cases, for present purposes I am content to adopt the brief explanation which Lord Cullen gave in Dollar Land (Cumbernauld) Ltd v CIN Properties Ltd at pp 348–349: a person may be said to be unjustly enriched at another's expense when he has obtained a benefit from the other's actings or expenditure...
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