Thomson v Mooney (AP) [2013] ScotCS CSIH_115 (24 December 2013)

Thomson v Mooney (AP) [2013] ScotCS CSIH_115 (24 December 2013)

In cases of unjustified enrichment where enrichment is conferred in contemplation of a future event, the obligation to make recompense arises only when that event fails to occur. Therefore, the prescriptive period does not begin until the contemplated marriage ended, not at the time of the original enrichment.

Citation
[2013] ScotCS CSIH_115
Parties
Pursuer and Reclaimer: Brian James Thomson; Defender and Respondent: Elizabeth Marie Mooney (AP)
Jurisdiction
Scotland
Judgment Date
24 December 2013
Procedural Posture
Reclaiming Motion (appeal) in Civil Action / Appeal From Lord Ordinary's Interlocutor; Inner House, Court of Session
Outcome
Reclaiming motion granted; Lord Ordinary's interlocutor recalled; defender's first plea-in-law repelled; proof before answer allowed; cause continued for expenses.
Legal Topics
Unjustified Enrichment, Negative Prescription, Cohabitation, Condictio Causa Data Causa Non Secuta
Civil Law Family Law Property Law Unjustified Enrichment Negative Prescription Cohabitation Condictio Causa Data Causa Non Secuta

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Parties

Brian James Thomson

Pursuer and Reclaimer

Elizabeth Marie Mooney (AP)

Defender and Respondent

Procedural Posture

Reclaiming Motion (appeal) in Civil Action / Appeal From Lord Ordinary's Interlocutor; Inner House, Court of Session

Legal Issues

  1. 1 When does the five-year negative prescription period begin to run for a claim of unjustified enrichment based on funds provided in contemplation of marriage that did not occur?
  2. 2 Was the Lord Ordinary correct in holding that the obligation to make recompense arose at the time of enrichment or only when the contemplated marriage failed?

Ratio Decidendi

In cases of unjustified enrichment where enrichment is conferred in contemplation of a future event, the obligation to make recompense arises only when that event fails to occur. Therefore, the prescriptive period does not begin until the contemplated marriage ended, not at the time of the original enrichment.

Court Disposition

Reclaiming motion granted; Lord Ordinary's interlocutor recalled; defender's first plea-in-law repelled; proof before answer allowed; cause continued for expenses.

Orders

  • Recall the interlocutor of the Lord Ordinary of 23 November 2012.
  • Repel the defender's first plea-in-law.