Sheriff allows amendment to cohabitant’s financial award pleadings after he fails to provide legal basis for claim

About this case:

• Citation:
  [2025] SC GLA 46
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  SHeriff Andrew McIntyre

Pursuer Thomas Barbour and defender Marion McEwan cohabited for a period of 33 years before separating in July 2022. The pursuer quantified the defender’s economic advantage at £150,000 and sought payment from her of that amount. In her answers, the defender made a preliminary plea to the relevancy and specification of the pursuer’s averments based on the omission in his pleadings.

The case was heard by Sheriff Andrew McIntyre at Glasgow Sheriff Court. McQuade, advocate, appeared for the pursuer and Jones, solicitor, for the defender.

Mere oversight

It was averred by the pursuer that while he and the defender cohabited, he provided her all of his income and made improvements to the house in which they both lived, which was solely owned by the defender. However, he failed to specify in his pleadings any remedy at common law that would entitle him to payment if he proved all that he had averred and made no explicit mention of any statutory remedy.

The pursuer’s position was that his claim was based on section 28 of the Family Law (Scotland) Act 2006. He acknowledged that he ought to have specified this in his claim but argued that the omission was a mere oversight capable of being cured by an amendment inserting reference to the 2006 Act into his crave for a capital sum.

It was submitted for the defender that the pursuer’s failure to mention the 2006 Act was a radical incompetence which could not be cured by amendment. The pursuer’s case as currently pled was not based on section 28, and allowing the amendment would permit him to make a fundamental change to the basis of his case. Additionally, such an amendment would allow the pursuer to circumvent the one-year time limit on cohabitant’s claims under section 28(8) of the Act, which was a strict time limit from which there was no scope for discretionary relief.

Counsel for the pursuer submitted that the omission was neither fatal to the competence of the pleadings nor did it render them irrelevant. He relied on the case of MAC Electrical and Heating Engineers Ltd v Calscot Electrical (Distributors) Ltd and Anor (1989), in which the court held that the pursuers were not precluded from relying on statutory provisions establishing a general rule of law. The defender submitted on this point that section 28 of the 2006 Act was one requiring the averment and proof of specific facts and so required an explicit reference.

Necessarily implied

In his decision, Sheriff McIntyre first considered the case law relied upon by the pursuer: “I agree with the pursuer’s submission that section 28 of the 2006 Act is particularly similar to the provision that was considered in MAC Electrical (section 8 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985). While the provisions in question provide remedies for very different problems, they operate in a similar manner. Both provisions give the court a discretionary power to make a specific order, specify the circumstances in which the court may make that order, and provide that the order may be made on an application to the court.”

Noting one difference between the Acts, he added: “Whereas, in theory, any person may make an application in terms of section 8 of the 1985 Act, an application for payment of a capital sum under the 2006 Act can only be sought by one former cohabitant against the other former cohabitant. However, I am not persuaded that that qualification distinguishes the present circumstances, in any material way, from those in MAC Electrical. By averring that the parties were co-habitants who have separated, the pleadings necessarily imply that the pursuer is a person entitled to make an application in terms of the 2006 Act.”

Considering whether there had been a fundamental change in the basis of claim, Sheriff McIntyre said: “It seems quite clear that the pursuer’s existing pleadings follow, broadly, the provisions of the 2006 Act and adopt the language used therein. In particular the pursuer craves a ‘capital sum’ and makes averments relating to ‘economic advantage’, ‘economic disadvantage’, and the extent to which either is ‘offset’. These are all particular statutory terms which can immediately be recognised as arising from the provisions of the 2006 Act.”

He concluded: “I am satisfied that the proposed amendments are necessary for determining the real question in controversy between the parties and will provide greater notice to the defender of the pursuer’s case. Finally, I can identify no prejudice to the defender in allowing the amendment, particularly in circumstances in which I have otherwise decided that there is no ground on which to grant decree of dismissal and in which the action is set to continue.”

The sheriff therefore repelled the defender’s plea to the relevancy and specification of the pursuer’s claim, and allowed the pursuer’s amendment.