No legionary’s shield (needed) for Scots law?

Elspeth Reid has kindly drawn our attention to the Dundee Sheriff Court case of Esposito v Barile, a judgement issued on 8 June 2010, in which Sheriff George Way dipped into the characterisation of Scottish legal history as well as the application of the law of unjustified enrichment between former cohabitants.

The case concerned the division of the proceeds of the sale of a cohabiting couple’s jointly owned house in Monifeith.  The parties had taken title in unequal shares reflecting their different contributions to the purchase price.  The pursuer, who had the larger share, argued that the distribution of the proceeds by the parties’ joint solicitors had been based on the latter’s incorrect calculation, with the result that the defender had received too much.  He also claimed that the defender was enriched by a contribution made by the pursuer’s father to discharge in part a standard security over the property originally granted jointly by the parties.  The purpose of the father’s contribution had been to allow his son to become the sole liable party, but this eventually did not work out.  The pursuer claimed half of his father’s contribution; the defender contended that she was only liable to pay an amount proportionate to her share of the title to the property.

In holding for the pursuer on all points, Sheriff Way was led into a discussion of the development of Scots law, as follows (para 14):

[D]espite a persistent juridical myth to the contrary, Scots Law is not based upon Roman Law but rather has borrowed concepts and procedures from Roman juridical sources which, with similar borrowings from other systems have been woven into our native jurisprudence.  … [I]ndeed to explode the shibboleth that Scots Law carried a legionary’s shield to ward off the peculiarities of our larger southern neighbour one need only read Professor Hector MacQueen’s Common Law and Medieval Society in Scotland to see the evidence of the extent to which our forebears were readily inclined to refer to English law and procedures.

This prefaces a discussion in which the learned sheriff finds it un-necessary to determine which of the enrichment condictiones might apply – “We are no longer required to shoehorn the facts into a particular style of Roman sandal before the remedy could be made to fit.”  The distribution of the sale proceeds by the parties’ solicitors had been made in error, and the defender had no legal basis for keeping the benefit this conferred upon her, even although she had done nothing to induce the error.  The remedy was recompense, and the sheriff also rejected a subsidiarity argument that the pursuer had failed first to exhaust its other possible remedies, for example under the Family Law (Scotland) Act 2006 (para 19). 

I do not accept that any of the authorities, to which I was referred, require a potential claimant to embark upon the uncertain waters of actions for breach of contract or duty by solicitors or yet in the almost uncharted depths of estranged cohabitant claims under the family legislation, before he or she can have recourse to equity.

With regard to the payment made by his father, the pursuer had a title to sue on the basis that he was a co-obligant with the defender on the standard security, entitled to relief inter se for payments made (Moss v Penman 1993 SC 300; Christie’s Exx v Armstrong 1996 SC 295).  Here, “[i]n the event that the court had to analyse the pursuer’s alleged right … by reference to the Roman condictiones, then this would have been a classic case of the condictio causa data causa non secuta.  The pursuer made a payment to achieve an objective that did not come to pass” (para 23).

First taking care to avow that he is not unduly swayed by the kindly judicial reference to his own scholarly work (incidentally actually entitled Common Law and Feudal Society in Medieval Scotland), your correspondent thinks that, although there may be caveats about the analysis, the learned sheriff’s decision is fundamentally correct.   The solicitors’ error, whether one in fact or law, was made as the pursuer’s agent, and thus seems to make the over-payment one that was undue, i.e. it was a case of the condictio indebiti.  Perhaps the remedy is therefore repetition rather than recompense.  The right of relief between co-obligants likewise probably does not depend on recompense but is an independent obligation in some but not all ways analogous with recompense (Gloag & Henderson, 11th edn, para 28.12 note 5).  Had the father been the pursuer, however, the case would have been one of a claim for payment of another’s debt, with recompense probably the remedy.  But, standing the question whether recompense was truly relevant here, the approach of the sheriff to the subsidiarity question is a very welcome one (see Niall Whitty’s discussion of this subject at (2006) 10 Edin LR 112).

There is also discussion of personal bar in the case (the pursuer is held not to be barred from his claim) which your correspondent thinks is basically correct as well; but he will leave discussion of that, if required, to the learned co-authors of Reid and Blackie on Personal Bar (unfortunately not cited to Sheriff Way).