CHRISTINE PERT (AP) AGAINST JOHN McCAFFREY [2020] ScotCS CSIH_5 (29 January 2020)

CHRISTINE PERT (AP) AGAINST JOHN McCAFFREY [2020] ScotCS CSIH_5 (29 January 2020)

The pursuer's claim for recompense based on unjustified enrichment is barred because an alternative remedy in contract was available and not pursued, and in any event, the claim has prescribed as the right to enforce arose when the parties separated in April 2012, more than five years before the action was raised.

Citation
[2020] ScotCS CSIH_5
Parties
Pursuer and Appellant: Christine Pert (AP); Defender and Respondent: John McCaffrey
Jurisdiction
Scotland
Judgment Date
29 January 2020
Procedural Posture
Civil Appeal / Appeal From Sheriff Court to Inner House, Court of Session
Outcome
Appeal refused; decree of absolvitor granted in favour of the defender.
Legal Topics
Unjustified Enrichment, Prescription and Limitation, Cohabitation, Alternative Remedies, Recompense
Family Law Property Law Civil Procedure Unjustified Enrichment Prescription and Limitation Cohabitation Alternative Remedies Recompense

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Parties

Christine Pert (AP)

Pursuer and Appellant

John McCaffrey

Defender and Respondent

Procedural Posture

Civil Appeal / Appeal From Sheriff Court to Inner House, Court of Session

Legal Issues

  1. 1 Whether a claim for unjustified enrichment is barred by the existence of an alternative remedy under contract or statute
  2. 2 Whether the claim for recompense has prescribed under the Prescription and Limitation (Scotland) Act 1973
  3. 3 Whether failure to pursue a statutory remedy under section 28 of the Family Law (Scotland) Act 2006 precludes a common law claim

Ratio Decidendi

The pursuer's claim for recompense based on unjustified enrichment is barred because an alternative remedy in contract was available and not pursued, and in any event, the claim has prescribed as the right to enforce arose when the parties separated in April 2012, more than five years before the action was raised.

Court Disposition

Appeal refused; decree of absolvitor granted in favour of the defender.

Orders

  • Sheriff's interlocutor of 14 June 2018 altered to grant decree of absolvitor instead of dismissal on relevancy.
  • Appeal refused.