Make Mine a Builders
Between October 2005 and September 2006, Chartered Brands Ltd and Elmwood Design Ltd to invent and sell a brand of tea to be marketed under the name "Make Mine a Builders". Relations broke down and Chartered Brands sued Elmwood alleging that Elmwood had marketed a tea based on the services provided by Chartered Brands. The case was decided by Sheriff Crowe at Edinburgh sheriff court on 15 May 2009 and contains detailed argument on the law of recompense.
The case was fully argued, some 52 cases referred to the sheriff (one, Gray v. Johnston 1928 S.C. 659, being described by Sheriff Crowe as a case where "the facts read more like the plot of a Thomas Hardy novel" (para 131)), as well as Institutional writings, and academic commentaries from the new edition of Gloag and Henderson, Professor McBryde, the late Professor Birks, and Professor Evans Jones (including his article Causes of Action & Remedies in Unjustified Enrichment; (2007) 11 Edinburgh Law Review, 105).
The case was heard on a plea to the relevancy and the extensive argument left Sheriff Crowe, like many that have dipped their toes into the waters of unjustified enrichment, to say
"I too have found this area of law a complex one. Counsel for the Defenders quoted authority extensively and comprehensively but as Lord Roger indicated in Shilliday v. Smith at page 727A:-
"Discussions of unjustified enrichment are bedevilled by language which is often almost impenetrable."
There are mixed messages too as to whether the law in this context has developed in recent years or simply has been more clearly defined." (para 120)
And, in relation to the use of Latin, notes
"A claim for recompense only arises in specific circumstances and is very much a last recourse when other perhaps more direct and conventional means are not open to an aggrieved party. Recompense in this context has variously been described as:-
"the brocard nemo debet ex alieno damno lucrari" -per Lord Ardwall in Gilchrist v. Whyte at page 992,
"the old brocard nemo debet locupletari aliena jactura"-per Lord President Dunedin in Edinburgh & District Tramways v. Courtenay at page 105 and
"the general brocard nemo debit (sic) loculetari aliena jactura"- per Lord Murray in Gray v. Johnston at page 664.
Fortunately Traynor at page 377 confirms these various brocards mean the same thing."
The sheriff allowed a proof before answer. We await developments with interest.