Scottish Sheriff Court Decisions

OF TAYSIDE, CENTRAL AND FIFE AT FALKIRK

 

A41/11

JUDGMENT   of   SHERIFF C. CALDWELL   in causa   ISOBEL SHEENA HARLEY, residing at 4 Well Place, Dunblane   Pursuer;   against   GEORGE ROBERTSON, residing at 7 Paterson Drive, Shieldhill, Falkirk   Defender:   __________

 

Act: Mr Walker

Alt: Mrs Giannelli

 

 

Falkirk 9 December 2011

The Sheriff, having resumed consideration of the cause finds the following facts admitted or proved.

1. The pursuer is Isobel Sheena Harley who lives at 4 Well Place in Dunblane. The defender is George Robertson who lives at 7 Paterson Drive in Shieldhill in Falkirk.

2. The parties co-habited between 16 November 2009 and 4 June 2010 (the relevant period) at the defender's home at 7 Paterson Drive, Shieldhill in Falkirk. The defender owned this property during the relevant period. During the relevant period the parties were co-habitants in terms of the Family Law (Scotland) Act 2006, Section 25.

3. In or around the earlier part of 2010 the pursuer received capital from the sale of heritable property which she had owned. The parties agreed that certain works be carried out at the defender's property. The said works included replacement double glazed windows and doors, replacement of part of the central heating system; rewiring and other electrical work; plasterwork and improvements to the kitchen. The pursuer paid for the labour and materials required to complete these works. The total cost of the said works was £9,606.28.

4. The defender has paid to the pursuer the sum of £2,000 in respect of the works to improve the central heating system.

5. The defender was unaware until after a contract for the works had been concluded and the works were about to begin of the cost of replacing the double glazed windows and doors. Had he been so aware he would not have consented to these works being executed by the contractor concerned. The defender has friends and contacts in various trades and is able to procure the execution of home improvement and upgrading works at costs substantially cheaper than those available in an arm's length commercial transaction.

6. The installation of the replacement double glazed windows increased the value of the defender's property at 7 Paterson Drive, Shieldhill by £2,000.

7. The remaining works instructed and paid for by the pursuer did not materially enhance the value of the said property.

8. The rental value of the defender's said property is £500 per month.

9. The pursuer was unemployed for all but one month of the parties' period of co-habitation. She did not contribute to the day to day household costs during that period of unemployment. She did not pay rent or council tax. She did not contribute to gas or electricity costs. The defender gave to the pursuer the money necessary to buy food for the parties' consumption during their period of co-habitation. He paid for the parties' leisure activities and entertainment.

10. The parties had been in relationships of varying degrees and periods of time between 1998 and 2009. During that period the pursuer had also been in relationships with other men. She was engaged to be married to one of these men and had co-habited with him shortly before the commencement of her co-habitation with the defender. She has been married twice. She had co-habited with the defender for approximately five months during 2008. One of the causes of their frequent separations was the level of the defender's consumption of alcohol. He continued to consume alcohol at that level during the relevant period.

11. The pursuer was the instigator of the works excluding the central heating. The defender did not wish them to be carried out and would not have instructed them. He was content with the condition of his house which he had refurnished and redecorated at his own expense during an earlier brief period of co-habitation with the pursuer. The pursuer wanted to carry out the works in order to render the house acceptable to her standards of decoration, style and comfort. The sums she spent were expended to these ends.

 

Finds in fact and in law:

1. In terms of the Family Law (Scotland) Act 2006, Section 25 that the parties co-habited in the defender's house during the period between 16 November 2009 and 4 June 2010.

2. That the defender has derived an economic advantage from contributions made by the pursuer.

3. The economic advantage derived by the defender is quantified in the amount by which the defender's house has increased in value as a result of the works carried out thereto during the period of the parties' co-habitation and paid for by the pursuer. The property has increased in value thereby by £2,000.

4. The said economic advantage derived by the defender is offset by an economic disadvantage suffered by the defender in the interests of the pursuer namely that the defender paid household expenses including foot and drink, gas and electricity consumed by the pursuer and entertainment for the parties during the currency of the said co-habitation.

5. The said economic advantage derived by the defender is offset by the economic advantage derived by the pursuer by a contribution made by the defender in providing accommodation in his home for the pursuer such that she did not during the period of co-habitation incur any accommodation costs.

6. That the value of the economic disadvantage suffered by the defender in terms of 4 above together with the value of the economic advantage derived by the pursuer in terms of 5 above is in excess of £2,000.

 

Finds in law:

1. That no order in terms of the Family Law (Scotland) Act 2006, Section 28, sub-section 2(a) should be made in favour of the pursuer.

2. That the pursuer has failed to prove that the defender was unjustly enriched by the sums expended by her and is not entitled to repetition of said sums expended on the basis of unjustified enrichment.

Therefore sustains the pleas-in-law for the defender, repels the pleas-in-law for the pursuer, refuses crave 1 of the writ, reserves meantime the question of expenses and appoints parties to be heard thereon on 9 January 2011 at 10.00am

 

NOTE

In this action in which the pursuer was represented by Mr Walker, Solicitor and the defender by Mrs Giannelli, Solicitor. I heard evidence only from the parties. A Joint Minute had been entered into agreeing the works carried out on the defender's house and the costs thereof.

In their oral evidence parties were substantially in agreement as to the principal matters but where there was disagreement I preferred the evidence of the defender. I do not suggest that the pursuer deliberately attempted to mislead the Court but I considered that her perception of the circumstances in which she and the defender found themselves was somewhat unrealistic and that this lack of realism tainted certain aspects of her evidence, which presented as tendentious. The principal areas of dispute were as to whether the defender was aware of the contracted costs of replacing the double glazing in the home prior to the contract being concluded between the pursuer and the contractor for this work; and as to whether parties contemplated marriage. I accepted the defender's evidence that he had not been aware until the contract had been signed and work was about to start as to the costs of the double glazing and that had he been so aware he would not have allowed the pursuer to enter into that contract. So far as marriage was concerned the defender conceded that he had discussed this on one occasion during the course of the parties' long period of intermittent relationship from 1998 until 2010. It was not, so far as he was concerned, in contemplation during the period of cohabitation between November 2009 and June 2010.

 

Pursuer's submission
Mr Walker submitted that the claim was advanced on two bases, firstly, in terms of the Family Law (Scotland) Act 2006, Section 28 and secondly on the basis of unjustified enrichment and in relation to the first basis he referred to:

Gow v Grant 2011 SCIH 25

and to the Opinion of Lord Drummond Young.

He submitted that no issue had been taken that the parties were not a co-habiting couple. There was no plea-in-law challenging this aspect of the claim. It is admitted that they co-habited. The defender has derived a clear and identifiable economic advantage which is quantified in the sum sued for. The pursuer has spent money for him in his interests and has not herself derived any economic advantage thereby. The advantage has accrued entirely to the defender. There is no record that any sums had been expended by the defender in any way and the imbalance between the parties is in the costs which she expended. The defender had accepted that there was discussion about the works which were not in her interests and from which she derived no benefit.

In relation to the claim in so far as it was based on unjustified enrichment Mr Walker referred to

Shilliday v Smith 1998 SLT 976.

He submitted that there was no distinction made in that case between necessity or choice in so far as the reason for carrying out repairs was concerned. The defender does not argue that the works were carried out without his agreement and therefore he is left with the consequences. It does not matter why the works were carried out. He referred to Lord Rodger's Opinion at page 7 in which he observed that it had been a factor that the sums were expended "in contemplation of the parties' marriage which did not take place". He referred also to the Opinion of Lord Kirkwood at page 10 of the report in which Lord Kirkwood also held that the pursuer in Shilliday had expended money on the defender's house in contemplation for marriage to the defender and that the marriage did not materialise therefore she was entitled to claim repayment on the basis of the condictio causa data causa non secuta.

Mr Walker referred also to the case

Satchwell v MacIntosh 2006 SLT Sh. Ct 117

where it was held that it was not necessary for a pursuer to establish that sums were paid in contemplation of marriage and that all the pursuer requires to do is to satisfy the Court that sums were paid on the basis that the pursuer contemplated continued co-habitation. It was observed in that case that the state of mind of the pursuer was critical in determining whether benefits were transferred in contemplation of a particular event. The causa in that case was that co-habitation would not stop.

In the instant case there was no agreement as to what was to happen where the relationship breaks down. The sums were neither a loan nor a gift and are therefore sums by which the defender had become unjustly enriched and whereby the pursuer was entitled to repetition of these amounts. The money was paid on the basis of the parties continuing to co-habit. If that is so then the issue is how to redress the inequity and with reference to the decisions in Shilliday and Satchwell the quantum of the pursuer's loss is the amount which she expended.

With particular reference to the double glazing it was asserted that the defender had the benefit of the double glazing whereas the pursuer has no benefit therefore the Court should uphold the two pleas-in-law for the pursuer and grant decree in terms of the pursuer's crave for payment.

In response to questions from me as to the correlation and potential conflict between the two claims which Mr Walker appeared to be expressing in the alternative, he responded that these were discrete and individual claims based on alternative legal principles. He conceded that if there were cohabitation then Section 28 of the 2006 Act applied and that therefore if an award was made in terms of Section 28 the claim based on the condictio indebiti was excluded.

 

The defender's submission
Mrs Giannelli submitted that the Court should have regard to the observations in paragraph 4 of Gow v Grant, referred to by Mr Walker, where Lord Drummond Young observed that Courts must have regard to the precise wording of Section 28. With particular reference to Section 28(9) she noted that the phrase "economic advantage" included gains in capital income and earning capacity. The only gain for the defender in this case was a gain in capital and there was no other economic gain. He had paid for the central heating and there was no increase in value from any other work.

With reference to 28(3)(b) she observed that it had to be demonstrated that economic disadvantage claimed by the applicant was suffered "in the interests of the defender". She submitted that it was necessary also for the Court to take into account sub-sections (5) and (6) and in particular to consider whether the applicant has derived an economic advantage from contributions made by the defender.

In this regard she submitted that the defender had paid for the defender's living costs during the period of co-habitation. Had he not done so and had she not been co-habiting then she would have incurred rental, housing and living expenses.

She went on to submit that the claim for the costs of the work which was carried out does not correlate to the quantum of benefit obtained by the defender. This was not the appropriate manner in which to approach the determination of the quantum of the economic advantage derived the defender. She made the analogy of the purchase by one co-habitant for another of a motor car. If those parties then co-habited for some time on Mr Walker's analysis on a claim by the purchaser of the motor car he or she would be entitled to repayment of the price whereas the car would have depreciated significantly and would no longer have the value it had at the time it was purchased.

She further pointed out that in terms of Section 28 sub-sections (1) and (2) the question of whether or not to make an order for a capital payment by one party to another was at the discretion of the Court. It was not mandatory. She referred to:

G v F, 2011, Falkirk Sheriff Court, Sheriff McCartney,unreported

where Sheriff McCartney had concluded that it was not reasonable for the full amount expended by the pursuer to be ordered to be repaid to her. Mrs Giannelli submitted that there was evidence that the double glazing aspect of the works which was by far the most expensive and significant element of the total cost of the work could have been done much less expensively.

With reference to the claim based on unjustified enrichment she observed that in Article 8 of Condescendence the pursuer avers that she had a reasonable expectation that she would continue to reside at the defender's home indefinitely living in family with him, that the parties had contemplated marriage and that she would not have met the costs of the refurbishment works had she not commenced cohabitation with the defender and would not have met them had she not expected to continue living in family with him. She submitted that this was an unwise decision of the pursuer. This relationship had been very volatile over a period of years. There had been many separations, reconciliations and further separations over the course of some years and indeed the parties had earlier co-habited from time to time for brief periods. Against that background the pursuer could not reasonably have contemplated that co-habitation would subsist for some time or that marriage would take place.

Mrs Giannelli went on to submit that there requires to be an event which triggers unjustified enrichment and in this case there was no such trigger. Even if the Court found that the defender was enriched to the extent of £2,000 being the increase in the value of his property as a result of the pursuer's expenditure on it, there was no trigger to render that enrichment unjust and therefore no basis for any repayment in favour of the pursuer.

Further and in any event the pursuer is also enriched by the fact that she has required to pay no rent and no living costs during the period of the co-habitation. The Court should also take into account that it was not the choice of the defender to have the work done. He said in evidence that he could not afford it and that indeed he had already refurbished the property during an earlier period of co-habitation with the pursuer and he could not afford to pay for further works.

 

Discussion

The Law
Section 28 of the 2006 Act so far as material to the present case provides as follows:

28 Financial provision where cohabitation ends otherwise than by death

(1) Subsection (2) applies where cohabitants cease to cohabit otherwise than by reason of

the death of one (or both) of them.

(2) On the application of a cohabitant (the "applicant"), the appropriate court may, after

having regard to the matters mentioned in subsection (3)-

(a) make an order requiring the other cohabitant (the "defender") to pay a capital

sum of an amount specified in the order to the applicant;

(b) make an order requiring the defender to pay such amount as may be specified

in the order in respect of any economic burden of caring, after the end of the

cohabitation, for a child of whom the cohabitants are the parents;

(c) make such interim order as it thinks fit.

(3) Those matters are-

(a) whether (and, if so, to what extent) the defender has derived economic

advantage from contributions made by the applicant; and

(b) whether (and, if so, to what extent) the applicant has suffered economic

disadvantage in the interests of-

(i) the defender; or

(ii) any relevant child.

(4) In considering whether to make an order under subsection (2)(a), the appropriate court

shall have regard to the matters mentioned in subsections (5) and (6).

(5) The first matter is the extent to which any economic advantage derived by the defender

from contributions made by the applicant is offset by any economic disadvantage

suffered by the defender in the interests of-

(a) the applicant; or

(b) any relevant child.

(6) The second matter is the extent to which any economic disadvantage suffered by the

applicant in the interests of-

(a) the defender; or

(b) any relevant child,

is offset by any economic advantage the applicant has derived from contributions made

by the defender.

(7) In making an order under paragraph (a) or (b) of subsection (2), the appropriate court

may specify that the amount shall be payable-

(a) on such date as may be specified;

(b) in instalments.

(8) Any application under this section shall be made not later than one year after the day

on which the cohabitants cease to cohabit.

(9) In this section-

"appropriate court" means-

(a) where the cohabitants are a man and a woman, the court which would

have jurisdiction to hear an action of divorce in relation to them if they

were married to each other;

(b) where the cohabitants are of the same sex, the court which would have

jurisdiction to hear an action for the dissolution of the civil partnership

if they were civil partners of each other;

"child" means a person under 16 years of age;

"contributions" includes indirect and non-financial contributions (and, in

particular, any such contribution made by looking after any relevant child or any

house in which they cohabited); and

"economic advantage" includes gains in-

(a) capital;

(b) income; and

(c) earning capacity;

and "economic disadvantage" shall be construed accordingly.

(10) For the purposes of this section, a child is "relevant" if the child is-

(a) a child of whom the cohabitants are the parents;

(b) a child who is or was accepted by the cohabitants as a child of the family.

 

In the course of submissions I was referred to the Inner House case of

Gow v Grant, Second Division, 22 March 2011, CSIH 25.

From the terms of the decision in that case, the leading Opinion in which was offered by Lord Drummond Young two main points are clear. Firstly, Sections 8 to 10 of the Family Law (Scotland) Act 1985 have no bearing on the construction of Section 28 of the 2006 Act. Secondly, in applying Section 28 the Court must have regard to the precise wording used in the Section the objections of which were limited in scope to enabling the Court to correct any clear and quantifiable imbalance that might have resulted from co-habitation.

Applying these strictures to the circumstances of the instant action as established in the findings in fact above it is clear to me, and this was not seriously contested by the defender, that the defender has derived economic advantage from contributions made by the applicant (Section 28(3)); the corollary of this is in this case that the applicant has suffered economic disadvantage in the interests of the defender (Section 28(3)(a)(i)).
The defender has benefitted by the increase in the value of his heritable property by the sums expended by the pursuer in the improvement works to that property.

The question comes to be, therefore, and this was the principal issue between the parties; how is the economic advantage derived by the defender from contributions made by the pursuer to be quantified? Consideration of this issue seems to bring into play a further question which is to the extent to which the economic disadvantage suffered by the applicant (which on the face of it may be said to be the amount of £7,706 which she expended on the defender's home) is attributable to "the interests of the defender". (28(3)(b)(i)).

It was clear from the evidence that whereas the defender may have acquiesced in the instruction of and execution of the works he was a reluctant participant. He would not himself have instructed these works. He was content with the condition of the house as it was, particularly since he had himself expended sums in redecoration and refurnishing of the house during an earlier period of co-habitation with the pursuer. On the other hand it was plain from the pursuer's evidence that she wanted the house to be altered, refurbished and redecorated. She said at one point in her evidence "I have always had a nice house. I wanted this house to be nice also." She described the defender's house prior to the works as being "old fashioned". It is noteworthy that the pursuer did not consult the defender on the nature, extent and costs of the replacement windows and doors in the property until after she had instructed the work. Had she done so the defender would not have consented to that work being carried out by the contractors in question, Albeit it appears he agreed in principle to certain works being carried out in relation to windows and doors in the house, had he been aware of the resultant costs he would not have agreed to that work and if work in relation to these items were to be carried out it would have been carried out by someone from amongst his own trade contacts at a very much reduced cost.

It seems to me therefore that in relation to conception, instruction and execution of the relevant home improvement works the pursuer was very much engaged in an enterprise of her own to satisfy her own desire to live in a house which met with the standards she perceived to be appropriate. Much of the expenditure therefore was incurred not in the interests of the defender except to the extent that it was work carried out on property owned by him but in her own interests in achieving what she considered to be aesthetically acceptable notwithstanding that the defender was content with the pre-existing condition of his home.

I have concluded therefore that the pursuer spent the money which she did on the works in her own interest and not in that of the defender and that apart from the sums spent on doors and windows, he has gained no economic advantage thereby.

In so far as the costs of the works involved in replacing the windows and doors is concerned (the cost of this work being £6,140) I do not find that the quantification of the economic advantage derived by the defender is in the sum expended. As noted above the house already had double glazing with which the defender was content. As also noted above the driving force behind this work was the pursuer's desire to have a home which was of a standard which met her expectations and aesthetic perceptions rather than the pre-existing "old fashioned" appearance which the defender's home in her eyes had. Moreover the defender did not and would not have agreed to the works being carried out at the cost of £6,000.

Parties are agreed in terms of the Joint Minute that as a result of the replacement of the windows and certain doors as instructed by the pursuer, the value of his property has been enhanced by the sum of £2,000. I may say that that is not what I take from the report from the surveyor, No. 6/11 of process referred to in paragraph 8 of the Joint Minute but nonetheless parties have agreed that issue and I am bound by that agreement.

Having regard, therefore, to the matters to which I require to have regard in terms of Section 28(3)(a) and (b), I conclude that the economic advantage derived by the defender from contributions made by the pursuer is to be quantified in the amount of the increase in value of the defender's home by those contributions and that sum is agreed as £2,000.

Having determined that issue I am then required by sub-section (4) in considering whether to make an order in terms of sub-section (2)(a) to have regard to the matters mentioned in sub-sections (5) and (6).

Having regard firstly to sub-section (5) it is clear that the defender has suffered an economic disadvantage in the interests of the pursuer (sub-section (5)(a)) in that he maintained the pursuer throughout the period of co-habitation during which period she did not work (except for a few weeks at the end of the relationship during part of which period she was not co-habiting with the defender although she was living in the same house.

The defender gave clear evidence of his financial arrangements during the relevant period when he was employed as a taxi driver. There was evidence of the precise sums expended by him in the support of the pursuer during the period of co-habitation. I am not convinced that it is the policy of the Act to provide a basis for former cohabitees to reclaim, at the end of their relationship, every penny claimed to have been spent on the other. As Sheriff McCartney observed in G v F, cohabiting couples will have their own complex arrangements for all aspects of their joint lives, and

"It will seldom be appropriate to present [many years later], when circumstances change, a bill for bed and board" (Paragraph 21).

I agree with that sentiment, and while I also do not believe it was the intention of the Act to provide a remedy for persons who have cohabited for only a short time, cohabitation for the purposes of S25 has been conceded. I consider therefore that it is appropriate in the particular circumstances of this action to take some account of the extent to which the defender expended sums in the support of the pursuer. I do not accept however that it is appropriate to engage in a detailed double entry book-keeping exercise, although the evidence led by the defender of his household expenditure is relevant to inform the court in determining whether there is to be an offsetting and in a calculation, applying the principles of the Act, of the amount to be offset. I therefore do not accept that the quantification of the value of the economic disadvantage suffered by the defender in the interests of the pursuer lies in a one half division of his household expenditure over the relevant period. In these circumstances the court has to take a "broad axe" approach, and while I do not find that the economic disadvantage suffered by the defender in the interests of the pursuer has a precise and defined financial value, it is clearly not negligible and falls to be weighed in the balance.

Turning to sub-section (6)(a) it is also clear that the applicant has derived an economic advantage from the fact of her residence in the defender's home in respect of which she incurred no rental or other housing costs. Parties were agreed that the rental value of the defender's property at the relevant time was £500 per month and attributing one half of that to each of the occupants it is clear that over a six month period the pursuer had the benefit of residence in a home for which she would otherwise have been liable to pay £250 per month. That economic advantage, which on one view, would have been in the sum of between £1,500 and £1,700 over the relevant period, was derived from a contribution made by the defender in allowing her to share his home without making any financial contribution towards the real or notional cost of her occupancy there.

However, as in the case of the application of sub-section 5, above, I do not believe that it appropriate simply to divide the rental value of the property by two and to attribute the result to be the value of the economic advantage derived by the pursuer from the contributions made by the defender. Again I think that the "broad axe" approach is appropriate.

Whereas as noted it is not appropriate to simply divide the amounts expended in maintaining the pursuer in terms of her day to day living expenses, by two, it seems to me that such expense over the period of the co-habitation must have been at least several hundreds of pounds. Taking into account the benefit she derived by not requiring to pay rent, I conclude therefore that in terms of sub-section (5) the economic advantage derived from the defender from the contributions made by the pursuer is offset by the economic disadvantage suffered by the defender in maintaining the pursuer during the currency of their co-habitation; and that, in terms of sub-section (6) any economic disadvantage suffered by the applicant in the interests of the defender is also offset by the economic advantage she has derived from the contribution made by the defender in allowing her to occupy his home rent free.

Looking at the matter as a whole, I conclude that an assessment of the relevant factors in subsections 5 and 6, results in the economic advantage derived by the defender by the pursuer's contributions in the form of the sums expended in the home improvements being cancelled out or in the words of the statute "offset" entirely by these factors.

I shall therefore make no award in terms of Section 28.

Turning to the second basis of the pursuer's claim that based upon the alleged unjust enrichment of the defender by the sums expended by the pursuer I find myself in some difficulty in dealing with this issue.

As observed above, Mr Walker, during the course of his submissions, appeared to concede that if the Court made any award in terms of Section 28 then any claim based on unjust enrichment would be excluded.

I am not sure what the basis of that concession was. While I have not made an award in terms of Section 28 I have however found that the defender derived an economic advantage from contributions made by the pursuer by application of the principles, insofar as one can discern them, derived from Section 28. There is therefore a finding that Section 28 applies to a determination of certain financial issues arising from the co-habitation of these parties. The question which arises is whether the introduction of Section 28 supplants or excludes the application of the concept of unjust enrichment in its various forms to circumstances where parties have been co-habitants in terms of the Act.

On the one had it may be argued that Parliament has conferred a legal status on persons who meet the criteria set out in Section 25 and that by Sections 26 to 28 has enacted a legal regime by which disputes as to financial matters involving those having the status of co-habitants in terms of Section 25 shall be resolved.

In this connection I note the terms of Sections 26(1) (household goods) and Section 27 (1) (rights in certain money and property). These sub-sections respectively provide that "where any question arises as to the rights of co-habitants in relation to (household goods and money and property)" the remaining provisions of each of these sections will apply. It is clear therefore that in relation to issues raised in terms of either of these sections that the legislation supplants the common law. Section 28 however does not include such directive or exclusive language. It is designed to entitle co-habitants on the termination of their co-habitation to apply to the Court to make orders for financial provision. I note again the comments by Lord Drummond Young in Gow v Grant when, of Section 28, he said:

"It was intended to enable the Court to correct any clear and quantifiable economic imbalance that might have resulted from co-habitation. The section was not designed to confer a general power to deal with any wider financial issues which may have arisen between the parties. Consequently we considered that the section should be applied in accordance with its precise terms which appeared to us to reflect its limited objective."

There will no doubt be many circumstances in which persons who, while entitled to the status of co-habitants as set out in Section 25, will have other financial or economic claims to make which do not fall within the restricted parameters of Section 28 and which clearly would not exclude the application of the condictio indebiti or unjust enrichment.

I would observe that it is not clear from a reading of the pursuer's pleadings that the claim in respect of unjust enrichment is intended to be an alternative claim or that it is simply an additional ground of the principal claim, that is, the claim in terms of Section 28. It is clear that it cannot be the latter but I am unable to conclude that it is a properly expressed alternative and discrete claim as contended for by Mr Walker, having regard to the terms of the crave which asks the Court to grant decree for payment by the defender to the pursuer of "a capital sum".

I would also observe that no comment was made on the competency or otherwise of the second basis of the pursuer's claim by the defender. While the defender had, at the outset of the action, preliminary pleas to the relevancy of the averments these were not insisted upon and were repelled at the options hearing.

I therefore find myself at somewhat of a loss as to how to deal with this part of the action even assuming that it is competent to maintain a claim for unjust enrichment in circumstances in which Section 28 of the 2006 Act now appears to offer a remedy. As I have not heard detailed argument on that matter I am unable to express a concluded view but in the interests of disposing of as many possible issues in the action as possible I would say that if the claim based on unjust enrichment is not excluded by the operation of or resort to the provisions of the 2006 Act I would conclude that such a claim would in any event also fail. I have come to that conclusion for the following reasons.

It is apparent from the authorities to which I was referred (Shilliday v Smith and Satchwell v MacIntosh) that for the doctrine of unjust enrichment to apply there must be a "cause". In Shilliday, the cause was said to be that the sums claimed were expended "in contemplation of marriage". In Satchwell, the cause was said to be that sums were expended in the expectation that parties would continue to cohabit. In this action it is said that the cause is variously that the pursuer had a reasonable expectation that she would continue to reside at the defender's home indefinitely living in family with him; and that the parties had contemplated marriage.

As to the latter I do not find as a matter of fact that the parties had contemplated marriage.

The pursuer said in evidence that "marriage was always on the cards". However she went on in that passage of her evidence to say that marriage was "always on the cards even when she was with someone else". I found this to be a surprising and inconsistent statement. She accepted that they had never set a date. They were not engaged. She did not have a ring and she went on to say that she intended to live at the defender's house "as a couple".

The defender's position was that marriage was mentioned in a conversation, towards the end of their period of co-habitation in 2008. The defender gave a clear impression that whereas marriage may have entered a discussion some years previously it was not a matter that he had contemplated nor led the pursuer to contemplate either immediately before or during the latter period of co-habitation which has brought about this action. Therefore I reject the assertion that the money was expended by the pursuer on the improvement works "in contemplation of marriage".

As will have been noted in any event the averments in Article 8 of Condescendence as to the "cause" which brought about the expenditure are contradictory as was the pursuer's evidence.

As for the assertion that the pursuer had "a reasonable expectation that she would continue to reside at the defender's home indefinitely living in family with him". This is frankly fanciful. As noted in the findings in fact this couple have been associating intermittently since 1998; on occasions their relationship took the form of a co-habitation on at least of such occasions being in the defender's house, they had frequent separations and reconciliations and there were long periods of time also on occasion stretching into years when they had no relationship whatsoever and when indeed the pursuer formed relationships with, co-habited with became engaged to another man or men. They had co-habited for a short number of months towards the end of 2008 following which the pursuer had entered into another relationship with another man with whom she became engaged and co-habited prior to the resumption of her relationship with the defender in November 2009. It is noteworthy in this context that as at the date of the proof, the pursuer had formed yet another relationship with another man, which had subsisted for at least some months.

Moreover, according to the pursuer, the reason for the numerous breaksdown of their periods of association or cohabitation, was the defender's drinking habits. There was no evidence that these had altered in any way before or during the relevant period. Indeed the breakdown of this most recent period of association was also said to be the defender's drinking.

The pursuer is clearly a woman who is insecure, is unable to sustain relationships, is perhaps somewhat naive and is certainly impetuous.

In all of these circumstances I cannot hold it proved that she had a reasonable or indeed any expectation of living indefinitely with the defender in family.

Accordingly, I cannot and do not find that the sums which she now claims were expended either in contemplation of marriage or in the expectation, reasonable or otherwise, that the pursuer would reside at the defender's home indefinitely in family with him and for these reasons alone any claim based on unjust enrichment must fail.

Finally, I would observe that, had the concession made by the defender that there was cohabitation in terms of section 25 not been made, I would not have found on the evidence before me that the pursuer had established cohabitation in terms

of that provision. The act refers to persons "living together as if they were husband and wife". S1(a). As Professor Thomson notes in his annotations to the act, this is a familiar concept and involves a couple who live together in a relationship which exhibits the characteristics of marriage, including sexual relations, emotional commitment, shared finances, social acceptance as a couple and stability. It is this final characteristic of stability which was clearly absent in this relationship; a period of cohabitation of seven months would in my view rarely satisfy this requirement, and in this particular fractured relationship, it certainly did not, as events have borne out.

I have reserved meantime the question of expenses and appointed a date for parties to be heard thereon.