Scottish Court of Session Decisions

At advising on 12th July 1974,—

LORD JUSTICE-CLERK (Wheatley).—This is a reclaiming motion from an interlocutor of Lord Stott, who repelled the defenders' first plea in law to the effect that the pursuers' averments were irrelevant et separatim lacking in specification and allowed a proof before answer. It is unfortunate that what I consider to be the most important point in the argument addressed to this court was not presented to the Lord Ordinary, due, it appears, to the fact that there was a change in the defenders' counsel. In the result, we have not had the benefit of the Lord Ordinary's opinion on that point.

The facts of the case are fairly straightforward. The pursuers are a company carrying on business as building and civil engineering contractors, and in the course of that business they construct houses for sale to the public. About the beginning of 1968 the pursuers proposed to construct an estate of houses for sale to the public in Lanark. For the effective drainage of these houses it was necessary to construct main and other sewers to receive the outflow from the houses. It appears that communings took place between the pursuers and the defenders regarding the construction of such sewers, and in early February 1968 the defenders' burgh surveyor verbally informed the pursuers by telephone that they, the pursuers, would require to execute the work. The pursuers then wrote to the defenders on 6th February 1968 referring to this telephone conversation and asking how they would be reimbursed for the cost of the work. On 14th May 1968 the defenders replied, stating that they were not prepared to make any reimbursement. The pursuers aver that in these circumstances, in order to ensure that the houses to be constructed would be efficiently drained, they proceeded to install the main and other sewers at their own expense, but expressly reserving their legal rights and pleas. Their intention to install the sewers under this reservation was communicated to the defenders by letter dated 28th May 1968. The pursuers aver that in June 1968 they commenced the construction of the sewers in accordance with drawings approved by the defenders, the cost of the operation on its completion being £3458.10, that the estate was completed in August 1971 and that the houses on the estate had been sold by them by the end of November 1971. In 1968, when the question of the sewers and of the payment therefor was being discussed, the parties did not have the benefit of the decision of the First Division in the case of T. Docherty Ltd. v. Monifieth Town Council, to which reference will be made later, but of course the provisions of section 219 of the Burgh Police (Scotland) Act, 1892, on which that decision rested, were available to the parties at that time. The parties were apparently under the impression in 1968 that the duty of constructing the sewers lay on the pursuers, the question at issue then being who had to pay for the work.

The pursuers' claim in the present action is based on recompense. The late Lord Wark in his article on recompense in Green's Encyclopaedia of the Laws of Scotland, vol. 12, at p. 342, states that recompense is an equitable doctrine, the basis of which is the maxim nemo debet locupletari ex aliena jactura, a statement which had been made on previous occasions, such as by Lord President Dunedin in Edinburgh and District Tramways Co. v. Courtenay, at p. 105. On the same page Lord Dunedin said that he did not think it possible to frame a definition of recompense which would by itself in terms at once include all classes of cases which fall within the doctrine and at the same time successfully exclude those which do not. It is somewhat unusual, to say the least of it, to find that the attempt of an eminent jurist such as Bell to define the term has been held judicially to have been too widely expressed, but this is so, as evidenced by a number of decided cases, including Courtenay, and noted by Professor Gloag in his work on contract (2nd ed., p. 319). What then fall to be considered are the factors or elements which are normally considered when the doctrine of recompense is under review. The philosophy underlying and the factors affecting the doctrine are canvassed by Lord Kames in his Principles of Equity (4th ed.), at pp. 102 et seq. Six such factors were canvassed in the present case. Three of them were not in dispute, three were debated vigorously. The first three I can accordingly dismiss shortly. It was accepted (1) that the pursuers had sustained a loss, in that they had at their own expense done work which it was the statutory duty of the defenders to perform; (2) that the pursuers did not intend to make a gift of this expense to the pursuers, as evidenced by their reservation of the right to claim reimbursement; and (3) that there was a quantifiable benefit, namely the cost, to the defenders, who were thereby lucrati. The first of the controversial factors was whether the operation was carried out by the pursuers for their own benefit. There is no doubt that by undertaking the work themselves, instead of waiting for the defenders to do it or taking legal proceedings to compel the defenders to do it (it being now accepted by the defenders that it was their statutory duty to do it, as was decided in the case of Docherty), the pursuers may have expedited the completion and sale of the houses. Incidentally, there is no averment by the defenders that this was in fact the case. On that basis the defenders' counsel argued that the operation was in suo,and, if it was, recompense was manifestly excluded. On the face of it there would appear to be some force in this argument, but when the actual facts are considered, it loses its force. In deciding whether or not the operation was in suo it is proper to look at the intention of the party carrying out the operation. In this case both parties at the time were under the impression that it was for the pursuers to do the actual work, the issue being who paid for it. The pursuers did the work because they thought they had to do it, and that was the view of the defenders as well. The pursuers did it on the basis that it was the defenders' legal obligation to pay for it. The whole situation arose from the defenders' failure or refusal to perform their statutory duty. That is not, in my view, a case of an operation in suo. It is true that this may have benefited the pursuers by expediting or not holding up their time-table, but the fact that some incidental benefit is enjoyed is not necessarily a bar to recompense, as illustrated by those cases where a bona fide possessor has carried out operations on land which he genuinely thought was his own and was held entitled to recompense. It was further argued by the defenders that, although it was their statutory legal duty to construct the sewers, the timing of the work was a matter for their discretion, so long as the work was completed in time for its necessary use, and that they were at no time called upon to do it. This was quite an academic argument. The defenders' attitude at the time was that they were under no obligation to construct the sewers, it being the pursuers' duty to do so, and this (subject to the question of payment) was accepted by the pursuers. Accordingly, no question of being called upon to do the work or of the exercise of a discretion by the defenders as to the timing of it ever arose. It is perhaps not surprising in these circumstances that there is no averment by the defenders that the completion and sale of the houses were expedited. If the defenders had carried out their statutory duty, non constat the timing of the construction of the sewers would have been different. For aught yet seen, the position would have been no different if the defenders had carried out their statutory duty. I am accordingly of the opinion that the defenders' argument on this point fails.

It was then argued by the defenders that there is normally an element of error, i.e. a mistake in fact, in a case where recompense is allowed. There are conflicting judicial views on this—compare Lord Young in Rankin v. Wither, Lord Murray (Lord Ordinary) in Gray v. Johnston, at p. 664, and Lord Neaves in Buchanan v. Stewart, at p. 81, who thought that the element of error was essential, with Lord Justice-Clerk Alness in Gray v. Johnston, where he said (at p. 681) that he did not subscribe to the view that in all cases error was an essential ingredient of a claim based on recompense.

Since recompense is an equitable doctrine, all facts and factors should be looked at in any particular case and I would hesitate before affirming that the establishment of error was an absolutely essential ingredient and that, no matter how compelling the other factors were in equity, its absence would be fatal to a claim. Support for that view might be found in the case of Mellor v. William Beardmore & Co. However, the point is somewhat academic in this case for a variety of reasons. The mistake here may have been an error in regard to the law but it was not an error in fact, and an error in law would not support the pursuers' claim. The pursuers' counsel stated that there was no error in this case. On the other hand the defenders' counsel stated that he accepted that, while evidence of error was normal, it could not be said to be essential. As I am of opinion that the issue in the case can be determined on another and more definite ground, I do not find it necessary to rest my decision on this element, when judicial opinion on the point is so diverse.

The final argument advanced by the defenders—not deployed before the Lord Ordinary—was that the doctrine of recompense cannot be invoked when another legal remedy is available to the pursuers. The law as decided in Docherty established that it was the duty of the defenders under section 219 of the Burgh Police (Scotland) Act, 1892, to construct the sewers. Accordingly, the pursuers, who must be presumed to have known the law, even if in fact they did not, should have called upon the defenders to carry out their duty under that section, and if the defenders refused to do so, they should have appealed to the court by summary petition in terms of section 91 of the Court of Session Act, 1868, to order specific performance by the defenders of their statutory duty, as was done in Docherty. This argument rested on the proposition that, since recompense is a long-stop remedy based on equity, there is no place for it when there is another remedy under the law open to the pursuers. An illustration of this was Stewart v. Steuart, where recompense was refused, and it was pointed out that the remedy lay in the pursuer's own hands by cutting off the water supply. It was said that the position could be equiparated to the exercise of the nobile officium of the court, which is exercisable only when no other legal procedure is available. The pursuers' counsel sought to counter this by submitting that while the proposition would apply where there were two grounds for the same remedy, it did not apply where the remedies were different. The remedy in a Docherty type of case was ad factum praestandum, whereas an action for recompense was a petitory one, the right to which arose only after the expenditure had been incurred. The pursuers' counsel also relied strongly on Secretary of State for Scotland v. Fife County Council and on certain dicta by Lord President Cooper therein in support of the relevancy of the pursuers' case.

The general proposition of the pursuers' counsel seems to me to be misconceived. Recompense is an equitable doctrine. That being so, it becomes a sort of court of last resort, recourse to which can be had only when no other legal remedy is or has been available. If a legal remedy is available at the time when the action which gives rise to the claim for recompense has to be taken, then normally that legal remedy should be pursued to the exclusion of a claim for recompense. Stewart v. Steuart is a case in point. That is the crucial point of time. It seems to me that it would militate against the concept of recompense if a person under no error of fact could ignore his legal remedy at the appropriate time and commit himself to work and consequential expense which he was under no legal obligation to incur, but which he could have obliged the other party to undertake, and then turn round and say that a new legal remedy of recompense of his own creation had arisen which he could pursue to the exclusion of the appropriate remedy at the appropriate time. Such an attitude can hardly be regarded as the basis for the invocation of a doctrine based on equity.

In the context of the present case the practical repercussions of allowing such unilateral action to supersede the duty imposed by statute on a local authority to secure a planned and efficient system of sewerage within the burgh need only be stated for their dangers to be manifest. I am accordingly of the opinion that the normal rule applied in this case to the exclusion of the pursuers' claim for recompense.

I do not consider that the case of Secretary of State for Scotland v. Fife County Council provides an answer for the pursuers. That was a very special case, which turned on very special circumstances. There the Minister of the Crown was acting in the public interest, and the main issue was the competency of the action, which was for reimbursement. The decision thereon rested on the interpretation of the statutes therein concerned, the judicial dicta were related thereto, and there was the unusual feature that an action ad factum praestandum might have left the body amouldering, but not in a grave, for many months (or years, if the time-table of that case was followed) pending a final judicial decision. In my view that case provides no basis for the general proposition which the pursuers' counsel sought to establish.

Accordingly, while one has sympathy with the pursuers in the circumstances under which they incurred the financial liability they are now seeking to recover, I am of opinion that the remedy of recompense is not open to them under our law. I would accordingly recall the interlocutor of the Lord Ordinary, sustain the defenders' first plea in law and dismiss the action.

LORD KISSEN .—In this action the pursuers, who are building and civil engineering contractors, sue the defenders, a local authority, for payment of the cost of construction of sewers and incidental items which, they aver, the defenders should have constructed in terms of section 219 of the Burgh Police (Scotland) Act, 1892. They aver, inter alia, that at about the beginning of 1968 they proposed to construct an estate of houses for sale to the public; that the estate was within the defenders' burgh; and that in or about the beginning of February 1968 the defenders' burgh surveyor informed them that the sewers would require to be constructed by them, the pursuers. They further aver that "the pursuers requested the defenders to make reimbursement of the cost of said main and other sewers, but the defenders refused to make any reimbursement." The sewers were constructed by the pursuers from about 1968 and, according to their averments, they "did so under protest and under reservation of their legal rights and pleas" but the defenders have continued to refuse to make reimbursement.

The legal basis of the pursuers' action is stated in their first and second pleas in law, which are in these terms:

"(1) The defenders having benefited by the expenditure of the pursuers in the circumstances condescended upon, it is equitable that the pursuers should receive recompense therefor. (2) The sum sued for representing the extent of the defenders' benefit, decree should be pronounced therefor."

Their third plea in law is as follows:

"(3) The defences, being irrelevant et separatim lacking in specification, should be repelled."

The defenders' first plea in law is in these terms:

"(1) The pursuers' averments being irrelevant et separatim lacking in specification, the action should be dismissed."

The Lord Ordinary repelled that plea in law of the defenders and allowed a proof before answer. The defenders have reclaimed against that decision.

It was common ground that recompense was an equitable doctrine, that each case had to be judged by its own circumstances, that the circumstances in the present case were very different from those in any of the reported cases and that certain features or elements had to be present in the circumstances before equity could found a claim. It was agreed by the defenders' counsel that some of the features or elements which are required to found a claim based on recompense were present here. Thus it was not disputed by the defenders' counsel that the pursuers had suffered a loss, that they had no intention to make a gift and that their construction of the sewers had been of benefit to the defenders. It was maintained, however, on behalf of the defenders, that there were in the pursuers' case three features or elements, any one of which was fatal to a claim for recompense, and that accordingly their averments were irrelevant. The first of these features or elements was that the sewers were constructed for the pursuers' own benefit, that is, that the operation was in suo, and that therefore recompense was excluded. The second was that there was no error or mistake of fact on the part of the pursuers in constructing the sewers, with the same result. The third was that the pursuers were seeking an equitable remedy, although there had been a legal remedy open to them, which they had chosen not to take or had not taken because of ignorance of the law which was applicable. The existence of a legal remedy, it was maintained, barred the claim in equity. It appears that this last point was not argued by different defenders' counsel before the Lord Ordinary.

I propose to consider the submissions made in regard to each of those features separately and in the order in which I have stated them. Before I do so, I have some observations to make on the case of T. Docherty Ltd. v. Monifieth Town Council, which appeared to be the basis for another submission for the defenders. That case decided that, in terms of section 219 of the Burgh Police (Scotland) Act, 1892, it was the statutory duty of a burgh, like the defenders in this case, to construct the sewers and other items for a new housing development within its boundaries. It also decided that the appropriate remedy for developers, like the pursuers, who required performance of this statutory duty by a burgh, was by a summary petition under section 91 of the Court of Session Act, 1868. I deal with the latter point later. Returning to the earlier point decided in that case, it appeared to be argued for the defenders, at one stage, that because the statutory duty on the defenders was administrative, and because the defenders alone could decide when, where and how sewers were to be laid, the defenders could not, on the averments, be said to have failed in their statutory duty, and the case was therefore irrelevant. This submission seems to me to ignore the basis of the pursuers' case, which is that they carried out the construction of the sewers, under reservation of their claim for reimbursement, because the defenders were unwilling to do so. The fact that the defenders do have an administrative discretion in carrying out their statutory duty does not seem to me to affect the legal issues in this case.

I return to the first of the three features which I previously mentioned. The question is whether, on the averments, the construction of the sewers was done for the pursuers' own benefit. Reliance was placed by the defenders' counsel on Kames's Principles of Equity, (3rd ed.) pp. 140–4, (4th ed.) pp. 102–6; Encyclopaedia of the Laws of Scotland, vol. 12, pp. 342 et seqq.; and Edinburgh and District Tramways co. v. Courtenay and some other cases mentioned in the Encyclopaedia and in the opinion of the Lord Ordinary. I did not find much assistance in these text-books or in these cases in regard to this feature, because of the very different circumstances in the present case. I agree with the views of the Lord Ordinary in differentiating the circumstances of the Edinburgh Tramways casefrom the present. The fact that, as Lord President Dunedin pointed out in that case at p. 106, there had been no case where a claim for recompense was allowed for something which a claimant had done on his own property does not, in my view, assist the defenders, as claimed, in the particular circumstances of this case. It was said for the defenders that the construction work was done for the pursuers' own benefit in that they were thus able to proceed with their development plans and incidentally avoid the delay of the possible litigation which might have arisen if section 91 of the Court of Session Act, 1868, had been used. It is, I think, clear from the reported cases that on this matter it is the intention, actual or presumed, of the person claiming recompense for his loss which is important. The fact that there was some incidental benefit to him is, I think, irrelevant. Applying that test here, the pursuers' intention was simply to do the construction work at the defenders' expense. To put the matter in another way, the pursuers were only doing what the defenders were bound by statute to do and it is difficult to see how that can be a benefit to the pursuers in the sense in which that word is used in the doctrine of recompense.

The second feature on which the defenders' counsel relied to exclude recompense was that the pursuers were not founding on some error of fact, on their part, which led them to do the construction work from which the defenders admittedly had benefit. Different judicial views have been expressed on whether there can be a valid claim for recompense which is not founded on an error of fact on the claimant's part. I do not think that I require to refer to the contradictory judicial dicta, because the defenders' counsel did not now maintain that simply because the pursuers' claim was not based on an error of fact the pursuers' case was irrelevant. The argument was that it was normal or usual to find that a claim for recompense was based on an error of fact, and that therefore the pursuers' case was less likely to be relevant. I agree with the first part of that argument. I do not agree with the second. It is, as I said previously, a matter of the circumstances in a particular case whether a claim for recompense is well founded. While error of fact may found a claim, its absence cannot invalidate a claim, if the other circumstances justify it. Before I leave this question, I should mention that the pursuers' counsel relied on the case of Mellor v. William Beardmore & Co. as an example of a successful case of recompense which was not based on error. It is also mentioned as an example of this in the Encyclopaedia, vol. 12, at p. 345. I had and have some difficulty in reconciling the opinions of the Second Division in that case with the general principles of recompense referred to in other cases. I note that Professor Gloag, in a footnote to p. 291 of his volume on contract (2nd ed.), expresses the view that the Lord Ordinary's ground of judgment was the correct one.

I turn to the third feature on which the defenders' counsel relied. The essence of the argument for the defenders was that the pursuers could not claim a remedy on equitable grounds when they had a remedy on legal grounds which they had chosen not to exercise. The appropriate remedy, when the defenders expressed their unwillingness to construct the sewers, was a summary petition under section 91 of the Court of Session Act, 1868, as in T. Docherty Ltd.They could not invoke the equitable doctrine, so the argument ran, because the rules of equity could not be invoked to give a remedy where there was a remedy, either by statute or at common law, which could have been taken. In other words, failure to use legal rules means that there cannot be recourse to equitable rules. A litigant cannot ignore a statutory provision in his favour and rely on equity as an alternative. Reference was made to Kames and to the principles on which the nobile officium is exercised.

The pursuers, in answer, relied primarily on the case of Secretary of State for Scotland v. Fife County Council . There were other minor submissions which I mention before I return to that case. It was said that the remedy available under the summary petition procedure and that sought in the present case are different and that the factual basis for each remedy is different, in that the remedy of recompense could not arise until after the sewers had been constructed. These submissions do not, in my opinion, answer the defenders' argument and the question at issue.

The case of Secretary of State for Scotland v. Fife County Council does bear some similarities to the circumstances of the present case, in that a question considered in that case was whether the pursuer could competently bring an action for repayment in the Sheriff Court when a statute gave him power to bring an action for specific performance in the Court of Session. Despite some superficial similarities, the differences are important. In that case a man had died in hospital in Fife leaving no relatives. The defenders, despite the terms of section 50 of the National Assistance Act, 1948,refused to cause the deceased's body to be buried or cremated. The pursuer, in terms of section 356 of the Local Government (Scotland) Act, 1947, held a local inquiry and then issued a default order under section 356 (2) against the defenders, which they ignored. The pursuer, in the public interest, had the body buried and sued the defenders in the Sheriff Court for the cost. The defenders maintained, inter alia, that the pursuer was bound to invoke section 356 (3), which, inter alia, conferred power on the Court of Session alone and that therefore the petitory action in the Sheriff Court was incompetent. The court held, inter alia, that the action in the Sheriff Court was competent.

It was submitted on behalf of the pursuers that the observations of Lord President Cooper in that case at p. 262, with which the other judges agreed, applied in this case. I do not agree. These observations were related to the terms of the specific Acts which were being considered and the question at issue was whether the Court of Session alone had jurisdiction. The pursuer's case was not specifically based on recompense. His second plea in law, which was sustained, referred to his having caused the burial in the public interest and being entitled to be reimbursed for the cost. It appears from the argument, as shown at p. 260, as well as from the opinions themselves, that the question was whether an alternative remedy at common law was excluded by the particular statutory provisions in question. To compare the position of the Secretary of State and his actions under the relative statutory provisions in the public interest, in a position of emergency, with that of the pursuers in the present case would, in my opinion, be going too far. I do not think that this case can assist the pursuers. It did not decide that a remedy on equitable grounds can be maintained when a statutory remedy could have been used but was not used. If that case is taken as authority for the pursuers' submission, it would mean that persons in the position of the pursuers in this case, even if they had knowledge of the statutory remedy, could ignore the statutory remedy in every case where a local authority refused to acknowledge a statutory duty, act themselves and then seek a basis in equity. Indeed, if the pursuers' argument was carried to its logical conclusion, it would mean that pursuers always have the alternatives of ignoring their legal remedy and applying for a remedy on equitable principles alone. There does not appear to be any reported case which is directly in point but, in principle, I cannot see how an equitable remedy can be invoked when another remedy given by statute or, indeed, by common law was available and was not used. The application of a similar principle can be seen in the case of Stewart v. Steuart .

On this last ground, which was not argued before the Lord Ordinary, I think that the reclaiming motion should be granted, the defenders' first plea in law sustained and the action dismissed.

LORD FRASER .—The pursuers in this action are a firm of contractors. They sue the burgh of Lanark for the cost of constructing sewers in a housing estate in the burgh. The duty of constructing the necessary sewers rests upon the town council in terms of the Burgh Police (Scotland) Act 1892, section 219, and that is now accepted by the defenders. But when the question of constructing the sewers first arose in 1968, there appears to have been some doubt as to whether the obligation rested upon the local authority. That doubt has now been resolved by the decision of the First Division in T. Docherty Ltd. v. Monifieth Town Council . In 1968 both the pursuers and the defenders seem to have assumed that the construction had to be carried out by the pursuers, and the only discussion between them was as to whether the defenders would reimburse them for the cost of construction. The doubt on that point was not resolved at the time and the pursuers proceeded to construct sewers at their own expense, starting about June 1968. They did so, as they aver in condescendence 2, "in order to ensure that the houses to be const ructed were effectually drained," and expressly reserved their legal rights and pleas against the defenders.

In these circumstances the pursuers now sue for the cost of constructing the sewers. Their action is rested upon a plea of recompense. The pursuers thus accept that they have no ground of action upon either contract or delict and they fall back upon recompense, which is an equitable doctrine based upon the old brocard nemo debet locupletari ex aliena jactura. In Edinburgh and District Tramways Co. v. Courtenay Lord President Dunedin said (at p. 105) that he did not think it was possible to frame a definition of recompense which would by itself at once include all classes of cases which fall within the doctrine and at the same time successfully exclude those which do not. Nothing has happened since 1909 which would seem to make the framing of such a definition any easier, and the best we can do is, in my opinion, to identify the factors which are essential to the success of a case based on recompense, and to see whether they are present in this case. Three factors are, in my opinion, clearly essential. The first of these is that the defenders must have received benefit, that is, they must be lucrati by the action of the pursuer. In the present case that factor is present, because the pursuers have carried out work which it was the duty of the defenders to carry out or at least to pay for. Secondly, the pursuers must have incurred a loss. In the present case that factor also is clearly present, because the cost of carrying out the work has fallen upon the pursuers. In the third place there must have been no intention of donation on the part of the pursuers towards the defenders. In the present case that factor also is obviously present. From that point on the matter becomes less clear, but I think the fourth and last factor was stated by junior counsel for the pursuers, with as much accuracy as is possible for a general statement, as being to the effect that the whole circumstances of the case must be such that it would be equitable for the pursuers to be reimbursed by the defenders on the basis of quantum lucrati. It is at this point that the difficulties of the pursuers' case emerge. In my opinion the pursuers have not succeeded in showing that it would be equitable in this case for them to be reimbursed. The position, put shortly, seems to me to be this. Before work started on the Marches housing estate neither party had accepted responsibility to bear the expense of constructing the sewers. The pursuers did not take proceedings at that time to resolve the legal position, but in order to make progress with the building scheme as a whole they went ahead and constructed the sewers themselves under reservation of their legal rights and pleas. In effect, therefore, they took the risk of being able to pin legal liability on the defenders after the work had been done. They now find that they are unable to do so, and they are falling back on the equitable plea of recompense.

In these circumstances I am of opinion that the plea must fail. The pursuers had a legal remedy by raising an action of declarator, or with other suitable conclusions, before carrying out the work. If they now find themselves in the position of being unable to raise an action on a strict legal basis, that position is one of their own making, because they failed to raise an action when they could have done so. If the pursuers were entitled to succeed in the present action, it would open the door very wide for any party to short-cut proper procedure, by undertaking a duty which rested upon a local authority and then turning round and claiming reimbursement from the local authority. In principle, of course, the possibility would not stop at local authorities but could extend to other persons. That would introduce quite novel and, in my opinion, undesirable possibilities.

Counsel for the pursuers submitted that, as the pursuers had performed the defenders' statutory duty after the defenders had refused, or at least expressed unwillingness, to perform it themselves, they were entitled to recover the cost from the defenders. In support of that proposition he relied upon Secretary of State for Scotland v. Fife County Council . But in my opinion that case does not vouch any such general proposition. In the first place, there was a degree of urgency in that case, which related to the disposal of a dead body, and there is no particular urgency in the present case. Secondly, the pursuer there was the Secretary of State, who had acted in the public interest, and I do not think that his position is strictly comparable to that of a private party such as the present pursuers. In the third place the Secretary of State's action was not based upon a plea of recompense. The Fife case was also founded on by counsel for the pursuers in support of a more limited argument to the effect that an action based on the equitable plea of recompense was not necessarily excluded by the fact that the pursuer possessed, or had at an earlier stage possessed, an alternative remedy. But even for this more limited proposition I do not regard the case as satisfactory authority. The pursuer's action there was, as I have said, not founded on the equitable plea of recompense and the argument on each side proceeded on quite different lines from the argument in the present case. The observations of Lord President Cooper at p. 262, on which much reliance was placed by counsel for the pursuers, were in my opinion directed to the quite different question of whether an action in the Sheriff Court had been excluded by the provisions of section 356 (3) of the Local Government (Scotland) Act, 1947. I agree with the opinion of Lord Kissen on this point. I do not know that it is absolutely essential to the success of an action for recompense that the pursuer should not have, and should never have had, any possibility of raising an action under the ordinary law, but in my opinion it would at least require special and strong circumstances to justify an action of recompense where there was, or had been, an alternative remedy open to the pursuer. The classic case for an action of recompense to succeed is where the pursuer has incurred expense upon heritable property which he reasonably believed to belong to him but which turns out owing to a mistake to belong to the defender—Gloag on Contract, (2nd ed.) p. 324. In relation to a case of that sort Lord Kames in his Principles of Equity, (4th ed.) p. 104, made an observation which bears upon the present point, to the following effect:

"That the common law affords no relief, will be evident at first sight … If then there be a remedy, it can have no other foundation but equity."

While Lord Kames did not say that the absence of a remedy under the common law was essential, he evidently regarded it as important. In the present case the common law did afford relief, but the pursuers did not avail themselves of it, and in the circumstances of this case that is, in my opinion, enough to prevent their relying on the equitable remedy.

Two other matters raised in the argument require brief mention. The first is the question whether a claim for recompense can succeed where the pursuer has not incurred the loss under some mistake of fact. There are judicial dicta both ways on this question. In Rankin v. Wither Lord Young (at p. 908) said "error is essential to success in a case under the law of recompense."See also Buchanan v. Stewart, per Lord Neaves at p. 81. There are also dicta to the opposite effect—see Gray v. Johnston, per Lord Justice-Clerk Alness at p. 681. The pursuers here were under no error of fact; if they acted under any error, it was an error as to the general law and that would not help their claim. But as, in my opinion, the pursuers' claim fails for other reasons, it is not necessary to come to a decision on this point. Moreover, counsel for the defenders did not argue that error was essential to the pursuers' success, but limited their submission to saying, rightly in my opinion, that bona fide error was usually an element in successful claims for recompense. The second question was as to whether the pursuers, in proceeding to construct the sewers, were acting in a relevant sense in suo. I have felt some doubt on this point. In one sense the pursuers were acting in their own interests, as they deliberately chose to go ahead with the construction, no doubt in order to avoid possible delay when their houses had been completed. But the occasion for the pursuers' action, and indeed the occasion for them to come to any decision at all on the point, arose from the defenders' failure to perform their duty. In these circumstances I have reached the opinion that the pursuers were not acting in suo in a relevant sense. Accordingly, in my opinion, the defenders' argument on this point fails.

For these reasons I would allow the reclaiming motion, sustain the first plea in law for the defenders and dismiss the action.