Unjustified enrichment and statute: Pert v McCaffery

Date01 September 2020
Published date01 September 2020

Much interest has been shown in the decision of a bench of five judges in Pert v McCaffery.1 In a leading opinion and a single concurrence,2 the Inner House held that the failure to exercise the right to apply for an order for payment under section 28 of the Family Law (Scotland) Act 20063 on the breakdown of a cohabitation does not bar a claim in unjustified enrichment. This is a small improvement to the operation of a statutory provision for which, save that it provides something of its type for former cohabitants where there was nothing before, there is little to be said.4 It is telling that progress consists in keeping section 28 out of the way. This note examines five points of interest arising from the case.


The parties cohabited. The pursuer funded the acquisition of a house. They took it in joint names. In April 2012, the relationship ended. On 1 April 2015, the pursuer was sequestrated. In January 2017, the trustee in bankruptcy sold the house, taking £85,590 net, and paying half to the pursuer's creditors; half to the defender. On the pursuer's averments, assumed for the purpose of the court's decision,5 the defender had undertaken “that in the event the relationship ended he would walk away with nothing in view of the source of funds that facilitated the purchase of the property”, and “that he would not claim any value from the property should the relationship end”:6 essentially, he would take nothing, and ask for nothing. The court took the averments “to mean that the parties had agreed that, in the event of the breakdown of the relationship, the defender would convey his share to the pursuer”.7 The pursuer was unsuccessful in her enrichment action against the defender, which was raised in June 2017.8

The first point which the court decided was that the operation of the one year time bar to a section 28 claim was no impediment in itself to an enrichment action.9 The leading opinion's approval and explanation of previous authorities entails that unjustified enrichment claims falling broadly within the academically propounded10 enrichment “by transfer”11 and “by imposition” categories12 (i) can only be pursued after so-called legal remedies, whether at common law or under statute, available on the same facts; and (ii) absent special or strong circumstances will not be allowed following a failure to pursue such remedies, if the latter then become unavailable.13 First instance authority, to the effect that these rules extend to all kinds of enrichment action,14 remains intact.15

Secondly, on the assumed averments, the court...

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