Falkirk sheriff dismisses unjustified enrichment claim by cohabitant time-barred from statutory compensation remedy

About this case:

• Citation:
  [2025] SC FAL 15
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Clair McLachlan

Pursuer Leanne McGunnigal sought payment of £100,000 from defender David Pollock under section 28(2)(a) of the Act, plus a further £50,000 in respect of the costs of caring for their children. After the pursuer conceded that her statutory craves were time barred, she sought recompense of £100,000 solely based on her esto case that the defender had been unjustifiably enriched by the efforts and funds she had expended.

The case was heard by Sheriff Clair McLachlan. Barbour, advocate and Waiss, solicitor, appeared for the pursuer and Cartwright, advocate, and Carey, solicitor, for the defender.

Recast her claim

In support of her claim under the 2006 Act, the pursuer averred that she had suffered economic disadvantage in the interests of the defender and family. She averred that she had curtailed her employment, reduced her income, and undertook work for the defender without remuneration. It was further averred that the parties had built a house and shed on land owned solely by the defender funded by their joint savings, and they also undertook work together on a pub owned and operated by the defender.

The pursuer’s case in unjustified enrichment was that she had expended these efforts and funds in the mistaken belief that in the event the parties separated she would be entitled to a fair sharing of the substantial assets accrued. The defender challenged the esto case based on competence, relevancy and specification.

Counsel for the defender submitted that the pursuer had merely recast her section 28 claim as unjustified enrichment and therefore fell foul of the principle of subsidiarity. The claim was not a properly formulated claim for recompense because no actual loss was averred and what was really sought was a compensatory payment.

On the relevancy of the case, counsel for the pursuer argued that the essential elements of a case based on unjustified enrichment had been plead. The defender has been enriched by amassing heritable property. The pursuer’s averments detailed the loss she had suffered, and it was a matter for the defender to establish that it was not equitable for any enrichment to be reversed.

Long-established principle

In her decision, Sheriff McLachlan began by noting: “Both counsel, quite properly, referred to the case of Pert v McCaffrey (2020) and the import of that decision on the interaction between the statutory remedy available to former cohabitants and common law remedies based on unjustified enrichment. As the debate progressed, it became clear that there was little in dispute about the legal starting point, namely that a failure on the part of a litigant to make an application in terms of section 28 of the Family Law (Scotland) Act 2006 does not bar that litigant from relying on an available common law remedy, such as recompense.”

She continued: “The issue of subsidiarity was considered by the Inner House in the Pert case and has since been the subject of much legal debate and academic discussion. The issue was addressed during this debate. The pursuer submitted that the decision in Pert established that a claim based on unjustified enrichment is not subsidiary to a claim under section 28. The defender’s position was that the case did not overrule previous authorities where the court had refused cases because of the existence of an alternative remedy but rather, all the Inner House had determined was that both remedies could co-exist.”

Considering which of these two approaches was the correct one, Sheriff McLachlan said: “In my view, Pert does not overrule the long-established principle that recompense, being an equitable remedy is, normally, one to which recourse can be had only where no other is available. Applying that principle to a cohabitant’s claim, I consider that where there is a relevant statutory claim, a party is precluded from pursuing an unjustified enrichment claim on the same basis. Put another way, a claim based on unjustified enrichment cannot be relied upon as a direct alternative to a time barred section 28 claim.”

She concluded: “The pursuer appears to be asking the court to make a discretionary award in her favour based on the efforts she expended in the interests of the family. Such an award falls squarely within the ambit of a section 28 claim, rather than a reversal of a quantifiable enrichment conferred upon the defender. For these reasons, I do not consider that the pursuer has pled a relevant case in unjustified enrichment which is distinct and separate from her time-barred section 28 claim.”

The sheriff therefore sustained the defender’s preliminary plea on relevance and dismissed the action.