The failure by a former cohabitee to bring a financial claim under the Family Law (Scotland) Act 2006 following the end of the relationship, barred his executors from seeking a remedy in unjust enrichment after his death, a Court of Session judge has ruled.

Lord Beckett in the Outer House dismissed an action by the executors of Robert Courtney against Yvonne Campbell, with whom the deceased was in a relationship between 2009 and 2013, applying the "subsidiarity" principle under which an equitable remedy such as unjust enrichment is available only where no other remedy was provided by statute or the common law, and failure to act timeously does not open up the possibility of an equitable remedy.

In 2010, during the relationship, Ms Campbell bought a property with the intention of living there with Mr Courtney. They moved in together. Mr Courtney provided two payments of £50,000 towards the purchase but title was taken in her name only. The executors sought repayment of these two sums plus a further £50,000 for benefits gained by the defender as a result of Mr Courtney making payments towards the cost of materials and labour for renovations and contributing his own joinery skills.

They averred: "The deceased believed the property was in effect his and the defender’s property, regardless of the title position. He expected to remain in the property and living with the defender there for the rest of his life. The expectation was that he would benefit equally from the contributions that he made.” The relationship ended in May 2013.

The executors argued that subsidiarity was not an absolute rule, and it might be said that the statutory remedy had been exhausted by passage of time. Becuse of the one year time limit, Mr Courtney had lost the opportunity to make a claim before he knew of his rights under statute. In any event there were special circumstances where he had not sought advice immediately as Ms Campbell’s son had been ill and later died. By the time he sought legal advice in August 2014, the statutory remedy was no longer available to him. To exclude the claim would result in the kind of unfairness the 2006 Act was intended to remedy.

Lord Beckett said that in enacting s 28 of the 2006 Act, Parliament had to be expected to have been aware of the common law, including the subsidiarity principle. Where Parliament had imposed a 12 month time limit, there had to to be strong and special circumstances to allow a later claim for an equitable remedy. Mr Courtenay's benevolent motives did not debar him from seekiong legal advice if he felt he was entitled to a payment; and "The remaining factors are likely to be present in many cases where the time limit has not been complied with and I am not persuaded that even viewed in combination they can be regarded as special and strong circumstances."

He therefore dismissed the action.

Click here to view the opinion.