The Better View? Johnston v R&J Leather (Scotland) Ltd

DOI10.3366/elr.2020.0655
Published date01 September 2020
Date01 September 2020
Pages411-416

When discussing disputed points relating to the law governing corporeal moveables in Scotland, the late David Carey Miller frequently weighed up opposing arguments and interpretations based on the authorities and a range of policy considerations, and ultimately came to what he termed “the better view”.1 For example, the “better view” relating to reform of the law of moveable securities was “that while the system of property may need to adapt to accommodate the needs of commerce, for it to retain its structural integrity and coherence any development should come from within and show sufficient respect for, and consideration of, the traditions of the system”.2 One thing Carey Miller consistently resisted was the idea that what he labelled as “policy” or “equitable” considerations should undermine the structural integrity and coherence of the law of corporeal moveables.3

The present analysis piece considers the recent case of Johnston v R&J Leather (Scotland) Ltd.4 While the decision can be praised for a number of reasons,5 it will be suggested that it is difficult to take what Carey Miller might have termed the “better view” of the decision – a view that allows it to be read consistently with the underlying principles and structure of the law.

THE DISPUTE IN <italic toggle="yes">JOHNSTON</italic>

The facts of Johnston were relatively straightforward.6 In March 2017, Mr and Mrs Johnston decided to buy a custom-made leather suite from R&J Leather (Scotland). They paid a deposit, and the full balance was paid in April 2017. The suite arrived on 30 June 2017, but the Johnstons found it unsatisfactory. They intimated rejection of the suite the following day in person at R&J's showroom in Uddingston. They made clear that they wanted to reject the suite and recover the price. R&J simply ignored repeated demands from the Johnstons to have the suite removed. Ultimately in December Mrs Johnston secured a court order for repayment of the money owed to her.7

At some point in December 2017 or January 2018, the Johnstons then decided to give the suite away. The Sheriff found that “they had not used” the suite and that it was “taking up room which they needed”. The Johnstons then sought to enforce the order in their favour to recover the money paid for the suite. R&J refused to make payment, and the dispute came back to court. In July 2018, the Sheriff granted an order for payment, and “excused the [Johnstons’] failure to be able to return the suite”.8

R&J appealed to the Sheriff Appeal Court, and the appeal turned on the following question: “[i]n circumstances where the Johnstons no longer have the suite and cannot return it, can they recover the sum awarded?” R&J accepted that short-term rejection of the goods had been justified; but it argued that the remedy of rejection and so repayment was only available where the rejected item was still available for uplift. Its position was that “the obligation to make the rejected goods available applies without limit of time”.9

The core statutory provisions governing the matter were identified by Mr Young,10 acting for R&J, as being section 20 of the Consumer Rights Act 2015 (“2015 Act”). Under section 20(7)(b), it is provided that from the time when the right of rejection is exercised, “the consumer has a duty to make the goods available for collection by the trader”. Subsequently, Mr Young looked at older case-law to support the idea that the buyer rejecting goods can only secure the remedy of rejection if he makes the goods available, and in the interim holds them as if a custodier.11

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