Varney (Scotland) Ltd v Burgh of Lanark [1974] ScotCS CSIH_2 (12 July 1974)

Varney (Scotland) Ltd v Burgh of Lanark [1974] ScotCS CSIH_2 (12 July 1974)

Recompense is not available where the pursuer had a legal remedy to compel the defender to perform its statutory duty but chose not to pursue it. The existence of an alternative legal remedy bars recourse to equity in these circumstances. The pursuers' claim for recompense fails because they could have sought specific performance under statute but instead undertook the work themselves and now seek reimbursement.

Citation
[1974] ScotCS CSIH_2
Parties
Pursuer: Varney (Scotland) Ltd; Defender: Lanark Town Council
Jurisdiction
Scotland
Judgment Date
12 July 1974
Procedural Posture
Civil / Appeal (reclaiming Motion) From Interlocutor Allowing Proof Before Answer
Outcome
action dismissed
Legal Topics
Recompense, Statutory Duties of Local Authorities, Alternative Remedies, Equitable Relief, Construction of Sewers
Unjustified Enrichment Local Government Law Equity Recompense Statutory Duties of Local Authorities Alternative Remedies Equitable Relief Construction of Sewers

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Parties

Varney (Scotland) Ltd

Pursuer

Lanark Town Council

Defender

Procedural Posture

Civil / Appeal (reclaiming Motion) From Interlocutor Allowing Proof Before Answer

Legal Issues

  1. 1 Whether a claim for recompense (unjustified enrichment) lies where a statutory remedy was available but not pursued
  2. 2 Whether the pursuers acted in their own interest (in suo) or for the defenders' benefit
  3. 3 Whether error or mistake is essential for a claim of recompense

Ratio Decidendi

Recompense is not available where the pursuer had a legal remedy to compel the defender to perform its statutory duty but chose not to pursue it. The existence of an alternative legal remedy bars recourse to equity in these circumstances. The pursuers' claim for recompense fails because they could have sought specific performance under statute but instead undertook the work themselves and now seek reimbursement.

Court Disposition

action dismissed

Orders

  • Reclaiming motion allowed
  • Interlocutor of Lord Ordinary recalled