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Category: Private Law

The Covid-19 Pandemic, Contracts, and Change of Circumstance: still room for equitable adjustment?

Published 24th June 2020

In Lloyds TSB Foundation for Scotland v Lloyds Banking Group plc [2013] UKSC 3, 2013 SC (UKSC) 169, Lord Hope of Craighead uttered the following obiter dictum:

[T]he proposition that the court can equitably adjust a contract on the basis that its performance, while not frustrated, is no longer that which was originally contemplated is not part of Scots law. To hold otherwise would be to undermine the principle enshrined in the maxim pacta sunt servanda which lies at the root of the whole of the law of contract. I see no need for this and, as there is no need for it, I would reject the suggestion that the court should assume that function [para 48].

The Lloyds TSB Foundation case will be discussed further below.  The purpose of this blog entry is to challenge the absoluteness of Lord Hope’s statement and to argue that Scots law can and does recognise the possibility of “equitable adjustment” of contracts to deal with significantly changed circumstances, such as is found in many other legal systems.  Not all the relevant authorities were reviewed in Lord Hope’s judgment.

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Fish, Soil and Industry: Proprietary Interests in Borwick v Clear Water Fisheries

Published 11th May 2020

In Borwick v Clear Water Fisheries [2020] EWCA Civ 578, Borwick had owned and run a fishery, which consisted of nine enclosed lakes created from voids left over by the excavation of the M6, since 2005. During this time, they bought and husbanded new fish stock. In January 2016, Borwick’s lender appointed receivers to execute a charge over the land. The receivers duly sold the land to Clear Water Fisheries (CWF). The fish were not mentioned in the sale agreement and the receivers informed Borwick they did not consider them to be included under the charge. Borwick then raised an action in damages against CWF for conversion of the fish.

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Fearn v Tate Gallery Board of Trustees in the Court of Appeal: Curtains for Article 8 rights in the Tort of Private Nuisance?

Published 7th April 2020

The claimants in Fearn v Tate Gallery Board of Trustees were the owners of luxury flats, featuring “striking” floor-to-ceiling windows, adjacent to the Tate Modern on the south bank of the Thames. Residents complained, when giving evidence at first instance, that they felt “more or less constantly watched” by visitors to the gallery’s roof-top viewing platform “as if they were in a zoo”.

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Cohabitants, unjustified enrichment, contract and subsidiarity: Pert v McCaffrey

Published 17th February 2020

One cheer

The decision of a Court of Five Judges in Pert v McCaffrey [2020] CSIH 5 will raise one cheer from family lawyers.  It over-rules the previous Outer House holding in Courtney’s Executors v Campbell [2016] CSOH 136, 2017 SCLR 387, that the “subsidiarity” of unjustified enrichment entails its non-availability to an ex-cohabitant who has failed at least to seek the remedy available to him or her against their former and still living partner under section 28 of the Family Law (Scotland) Act 2006.  (The ending of cohabitation by death is dealt with under section 29 and is not treated here.)

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