Unjustified enrichment and statute: Pert v McCaffery

Abstract

Much interest has been shown in the decision of a bench of five judges in Pert v McCaffery.1 In a leading opinion and a single concurrence,2 the Inner House held that the failure to exercise the right to apply for an order for payment under section 28 of the Family Law (Scotland) Act 20063 on the breakdown of a cohabitation does not bar a claim in unjustified enrichment. This is a small improvement to the operation of a statutory provision for which, save that it provides something of its type for former cohabitants where there was nothing before, there is little to be said.4 It is telling that progress consists in keeping section 28 out of the way. This note examines five points of interest arising from the case.