Scottish Court of Session Decisions

The parties to this petition were formerly married to each other. In 1994 the present respondent raised an action of divorce in Banff Sheriff Court. After sundry procedure the Sheriff on 3 January 1996 pronounced decree of divorce, awarded the respondent a capital sum of £70,000 and found the petitioner liable to the respondent in expenses. By this petition the petitioner seeks suspension of those parts of the decree by which the Sheriff made the award of a capital sum and found the petitioner liable in expenses. In order to set in context the issue which was debated before me on the procedure roll it is necessary, however, to summarise both the history of the divorce action in the Sheriff Court and the history of this petition in greater detail.

It appears that the parties separated on 17 March 1989. In August 1994 the respondent raised an action of divorce. (I shall, for the sake of consistency, refer to Mr Ali as "the petitioner" and to Mrs Ali as "the respondent" not only when referring to the present process, but also when referring to the divorce action.) That action was sisted for a time on the petitioner's motion to enable him to apply for legal aid, but on 6 December 1994 the sist was recalled, an order was made for defences to be lodged by 14 December, and 7 February 1995 was fixed as the date for the options hearing. On 7 February the Sheriff, having heard the parties' solicitors, ordained the petitioner (who was a farmer) to lodge farm accounts for the period from three years prior to the date of separation until the most recent set of accounts within two weeks of that date, and further ordered that a report on a valuation of heritable property and farm machinery to be carried out by ANM Ltd be lodged when it became available. A proof was allowed and 23 May 1995 was assigned as the diet. On 9 May 1995 the Sheriff, having heard the parties' solicitors on the respondent's motion, ordered the report on the valuation of heritable property and farm machinery referred to in the preceding interlocutor to be lodged within seven days. On 23 May the diet of proof set down for that date was discharged on the petitioner's motion because he was medically unfit to attend court, and a fresh diet was fixed for 12 September. On 8 August the Sheriff heard the parties' solicitors on (i) the respondent's motion to find the petitioner in default in respect of his having failed to obtemper the interlocutor of 9 May, and to allow the action to proceed as undefended, and (ii) the petitioner's motion once more to discharge the diet of proof, and to allow him further time to lodge the reports and valuations. The Sheriff granted the respondent's motion, held the petitioner in default in respect of his failure to obtemper the interlocutor of 9 May, discharged the diet of proof, repelled the defences, allowed the action to proceed as undefended, and allowed the respondent a proof of her averments by affidavit evidence. The petitioner marked an appeal to the Sheriff Principal against that interlocutor. The appeal was heard on 5 October. At that stage the petitioner was still represented by solicitors. The appeal was refused. Following the refusal of the appeal, the petitioner's solicitors withdrew from acting for him.

On 3 January 1996 the Sheriff granted decree of divorce, awarded the respondent a capital sum of £70,000 with interest thereon at the rate of 8% a year from that date until payment, and found the petitioner liable to the respondent in the expenses of the action. The decree was extracted on 18 January. The petitioner avers that he was unaware of the decree until 22 January. By then it was too late to appeal against it. The petitioner sought leave to appeal late, but that application was refused by the Sheriff Principal on 7 May. A subsequent attempt to appeal to this court was abandoned.

On 8 February 1996 a charge for payment of the debt constituted by the decree of 3 January 1996 was served on the petitioner. The days of the charge expired without payment. On 20 May 1996 the respondent presented in Banff Sheriff Court a petition for the sequestration of the petitioner, founding on the expired charge as constituting his apparent insolvency. When that petition first called before the Sheriff a continuation until 25 June 1996 was granted.

On 25 June 1996 this petition was presented. In it the petitioner sought (i) interim suspension of the charge of 8 February, (ii) interim suspension of the decree of 3 January 1996, (iii) suspension of the decree of 3 January 1996 to the extent of the second and third parts thereof, i.e. the award of a capital sum and the finding of liability in expenses, (iv) a remit to the Sheriff for reconsideration of the award of a capital sum, (v) a remit to the Sheriff for reconsideration of the question of expenses and (vi) interdict of the respondent from insisting further in the petition for sequestration. On 25 June interim suspension of the charge and the decree and interim interdict were granted on the ex parte motion of the petitioner.

From July 1996 until March 1997 the petition was sisted to enable the respondent to apply for legal aid. There then followed a period of adjustment, and the record was closed in September 1997. On 26 November 1997 the petitioner was allowed to lodge a minute of amendment, answers were thereafter lodged late, and the record was amended on 17 February 1998. On 25 March 1998 the respondent was allowed to lodge a minute of amendment, answers were lodged late, and the record was amended on 29 May.

When the petition was originally presented, it was averred that the petitioner intended also to raise an action of reduction of the decree. No such action has ever been raised. On 5 September 1997 the petitioner made a request to the Deputy Principal Clerk of Session in terms of Rule of Court 4.2(5) to place a summons concluding for reduction of the decree of 3 January 1996 for a capital sum before the Lord Ordinary for leave to proceed without the signature of a solicitor on it. The summons was placed before Lord Eassie who on 14 September refused the leave sought. That decision is, in terms of the rule, final and not subject to review.

On 29 May 1998 the petition came before Lady Cosgrove on the procedure roll. The respondent had stated a plea to the competency of the petition. The basis on which the respondent argued that the petition was incompetent was that Rule of Court 49.30 provides:

The issue which was debated was whether that rule applies to decrees of divorce pronounced in the Sheriff Court as well as those pronounced in the Court of Session. The Lord Ordinary held that it does, sustained the plea to competency and dismissed the action.

The petitioner reclaimed against that interlocutor. The reclaiming motion was heard on 10 December 1998 before an Extra Division. By then it had been noticed that, although the petitioner sought interim suspension of the whole decree, the prayer for suspension related only to the parts of the decree dealing with capital sum and expenses. The Extra Division held that although Rule 49.30 struck at the competency of suspending an undefended decree of divorce, the constituent parts of the decree of 3 January 1996 were separable, and the rule did not render incompetent a prayer for suspension of the decree so far as concerned with capital sum and expenses. The Lord Ordinary's interlocutor was therefore recalled, the plea to competency was repelled and the petition was remitted to the Lord Ordinary to proceed as accords.

Following the remit to the Outer House, the petition came before me for debate on the procedure roll on 27 January 1999. At that stage Mrs Davie, who appeared for the respondent, advanced argument in support of the respondent's second plea-in-law, a plea to the relevancy of the petitioner's averments. In his response, the petitioner, who appeared in person, sought to make reference to and rely upon circumstances which were not focused in his averments. When it was explained to him that the circumstances on which he relied in support of his prayer for suspension required to be made the subject of averment, he sought leave to amend. Mrs Davie opposed that motion. Although there was considerable force in her submission that the petitioner had by that stage already had ample opportunity to make whatever averments he considered were necessary to support the prayer of the petition, I took the view that, given that he was a party litigant, it was in the interests of justice to allow him a final opportunity to state his case clearly. I therefore gave the petitioner leave to lodge a minute of amendment. In the event, he tendered two minutes of amendment, one of which was subsequently adjusted. The respondent lodged one set of answers. At the continued diet on the procedure roll on 15 July 1999 the petitioner moved to amend the record in terms of the minutes of amendment (Nos. 37 (as adjusted) and 39 of process), and the answers (No. 40 of process). I granted that motion. The debate then proceeded on the amended pleadings.

At the outset of her submissions Mrs Davie confessed some perplexity as to the criteria by which the relevancy of a case for suspension should be judged. While there were authorities which tended to support the competency of using suspension as a means of bringing under review a Sheriff Court decree in foro where appeal was foreclosed by extract or was otherwise no longer competent (Maxwell, The Practice of the Court of Session, 579; Mackay, Manual of Practice in the Court of Session, 615; Maclaren, Bill Chamber Practice, 80; Lamb v Thompson (1901) 4 F 88, Smith v Kirkwood (1897) 24 R 872; c.f. Watt Brothers v Foyn (1879) 7 R 126), she had been unable to find any which set out what averments were necessary for relevancy in such a case. In that situation, Mrs Davie submitted, it was appropriate to draw an analogy from the test for relevancy of averments in support of a conclusion for reduction of a Sheriff Court decree. In that connection she referred to Maxwell, Practice, 584, where there is reference to the need for exceptional circumstances to justify reduction of a decree in foro. Reduction was not the equivalent of an ordinary appeal, but was a mode of having "error rectified and injustice avoided" (Mathewson v Yeaman (1900) 2 F 873 per Lord Young at 881). In Adair v David Colville & Sons Ltd 1926 SC (HL) 51 Viscount Dunedin said (at 55):

Lord Sumner (at 65) referred to "such a miscarriage of justice as renders the whole proceedings fundamentally null". In Philp v Reid 1927 SC 224 at 233 Lord Anderson said:

Finally, Mrs Davie referred to Nunn v Nunn 1997 SLT 182, a decision of my own in which I held, following Robertson v Robertson 1995 SLT 429, that to reduce a decree in absence, as distinct from a decree in foro, it was not necessary to aver exceptional circumstances, but held that it was necessary in such a case for the pursuer to aver (i) that in the whole circumstances of the case on the true facts and the relevant law the decree ought not to have been granted, and (ii) a candid account of how it had come about that the decree was granted without opposition. Mrs Davie's position was that the decree which the petitioner here sought to have suspended was a decree in foro, so that it was necessary for him to make averments of special circumstances.

The petitioner, in his submissions, made reference to a number of authorities, but except in so far as they added some further material bearing on the competency of suspension as a mode of review (Macdonald v Denoon 1929 SC 172; McWilliams v McWilliams 1963 SC 259) they did not cast light on the issue before me. He submitted, although he cited no authority for the proposition, that the decree for a capital sum was a decree in absence.

The only issue which came before me for debate was the relevancy of the petitioner's pleadings. The question of the competency of suspension as a mode of review of a Sheriff Court decree in foro was mentioned only by way of preamble to the submissions as to the proper test of relevancy. The plea to competency which the respondent had stated at an earlier stage was discussed, both in the Outer House and in the Inner House, only by reference to the narrow issue of whether Rule of Court 49.30 rendered the petition incompetent. The plea was repelled in consequence of the rejection of the respondent's submissions on that point. Notwithstanding the authorities on the competency of suspension as a mode of review which were cited by Mrs Davie and the petitioner, I remain in considerable doubt as to whether suspension is the proper process for the petitioner to invoke in the circumstances of the present case. It is my experience in such cases that suspension (or at least interim suspension) is used as part of the means of preserving the status quo pendente lite, but that the substantive review of the Sheriff Court decree is sought by way of a conclusion for reduction. It would not, I think, be appropriate for me to reject ex proprio motu the competency of the present process, particularly since (i) a narrowly based plea to competency has already been stated and repelled, without discussion of the broader issue of whether reduction rather than suspension is the proper means of seeking the sort of review which the petitioner wishes to obtain, and (ii) the broader issue has not been fully debated before me. The fact, however, that my decision addresses the relevancy of the petitioner's averments should not be taken as tacit affirmation of the competency of choosing to bring a Sheriff Court decree in foro under review by suspension rather than reduction. The procedural history of this case is peculiar, in the respects which I have set out, and provides the special context in which I proceed, without saying more about competency, to consider the relevancy of the petitioner's averments.

In my view Mrs Davie was right in the circumstances to submit that the test of the relevancy of the petitioner's averments ought to be derived by analogy from cases of reduction. The petitioner, rightly or wrongly, is seeking to deploy a process of suspension for a purpose which is more usually served by a process of reduction. In that situation, it seems to me to be appropriate that the relevancy of his pleadings should be tested by the same criteria as would have been used to test the relevancy of his averments if he had brought an action of reduction.

In my view Mrs Davie was also correct in her submission that the decree of 3 January 1996 was a decree in foro. If the petitioner had never entered the process, the undefended decree of divorce would have been a decree in absence (Paterson v Paterson 1958 SC 141). But in the present case, the petitioner had entered the process, he had lodged defences, but his defences had been repelled in respect of his default in failing to obtemper the Sheriff's order upon him to produce the valuation of his assets. Although no authority directly in point was cited to me, it seems to me to be appropriate in those circumstances to regard the decree pronounced on 3 January 1996 as a decree by default, and thus a decree in foro (Forrest v Dunlop (1875) 3 R 15), rather than as a decree in absence. The fact that the decree of 3 January 1996 was pronounced, not on the occasion of the petitioner's default, but at a later stage after proof, is no more than a reflection of the fact that decree of divorce can only be pronounced after proof. The case proceeded to undefended proof, and the decree followed as it did, because the petitioner's defences had been repelled in respect of his default rather than because he had never entered the process.

It follows, in my view, that the relevancy of the petitioner's averments must be judged by the more stringent standard applicable to decrees in foro (Adair v Colvilles; Philp v Reid), rather than by the more relaxed standard applicable to decrees in absence (Robertson v Robertson; Nunn v Nunn). In other words, it is in my view incumbent on the petitioner in the present case to point in averment to exceptional circumstances to justify the remedy he seeks.

The Petitioner's Averments

The averments which the petitioner makes in support of his prayer for suspension may be regarded as falling into a number of chapters. Although it is necessary to consider the whole circumstances which he avers in order to determine whether a relevant case has been made, it is convenient to discuss each chapter of averment separately in the first instance. I shall do so broadly in chronological order, rather then in the order in which the averments appear in the petition.

The petitioner avers that in September 1992 he suffered his first myocardial infarction; that in March 1995 he suffered a further myocardial infarction complicated by heart failure, angina and pneumonia; and that he has since (at an unspecified date) also been diagnosed as having an inefficient thyroid gland and diabetes melitis. He avers that certificates on soul and conscience were produced on 20 May and 29 September 1995 informing the court that he was "unfit to attend court and therefore unable to carry out the orders of the court". In fact the certificates (numbers 38/1 and 38/7 of process) make the former but not the latter point. He avers further that on the day before the Sheriff repelled the defences and ordered the action to proceed as undefended he had been in hospital undergoing a scan. Various other documents said to vouch his medical condition are said to be produced, some dated within the period with which I am presently dealing, and some of later date. It is averred that on 13 June 1995 the petitioner wrote to the Scottish Legal Aid Board in an attempt to have the case postponed for a year until he had recovered from his illness.

These averments deal with the petitioner's health during the period in 1995 when various hearings took place before the Sheriff. The petitioner's inability by reason of his ill-health to appear in court was recognised by the Sheriff when the diet of proof fixed for 23 May 1995 was discharged. Throughout the period the petitioner was represented by solicitors. There is nothing in the petitioner's averments alleging that his solicitors were not aware of the state of his health, or that they failed properly to draw it and its consequences to the attention of the Sheriff. The petitioner's personal presence in court was not necessary on 8 August 1995 when the motions which came before the court on that date were heard. As I have noted, the soul and conscience certificate before the court on that date did not (contrary to the petitioner's averment) bear out that he was unable to carry out the orders of the court. While it is clear that the evidence before the court was that the petitioner was unfit to attend court, I do not understand why his ill-health should have been thought to stand in the way of compliance with the order for production of the valuation by a firm of professional valuers of his heritable property and farm machinery. In the absence of averment to the contrary, it seems to me to be reasonable to suppose that his position was fully explained to the Sheriff by his solicitors. In the event, the Sheriff held him in default, and nothing in what the petitioner now avers seems to me to support the proposition that the Sheriff was not entitled in the circumstances so to hold. In any event, the Sheriff's interlocutor of 8 August was appealed to the Sheriff Principal. If the position was inadequately explained or vouched to the Sheriff, there was therefore an opportunity to put that right at the hearing of the appeal. The fresh soul and conscience certificate obtained shortly before the appeal hearing again vouched the petitioner's inability to attend court, but said nothing to suggest that his ill-health prevented compliance with the order for production of a valuation. Again, there is nothing in the petitioner's averments to suggest that his solicitors, who represented him at the hearing of the appeal, did not fully explain his position to the Sheriff Principal, nor anything to support the proposition that the Sheriff Principal ought to have allowed the appeal. I am therefore of opinion that there is nothing in the petitioner's averments about the state of his health during this period which discloses exceptional circumstances (or indeed any circumstances) which could be regarded as affording relevant support to his prayer for suspension.

Prior to the amendment which I allowed on 15 July 1999 the petitioner's pleadings contained an averment that "as a result of his illness the petitioner was unable to give proper instructions for the marking of an appeal against the interlocutor of 3 January 1996". There was at that stage no specification of the nature of his ill-health at that particular period. By the amendment, the pursuer introduced such specification in the following terms:

At the same time, however, the amendment deleted the averment that the petitioner's ill-health prevented his giving proper instructions for the marking of an appeal against the interlocutor of 3 January. That is not surprising, since it is also averred that the petitioner did not learn that the interlocutor had been pronounced until 22 January, by which date it had already been extracted. It is therefore clear that such ill-health as the petitioner suffered at Christmas 1995 could not have been a cause of the fact that no timeous appeal was marked. It is thus in my view clear that the averments about the petitioner's ill-health at that time can have no relevant bearing on his prayer for suspension.

In his amended pleadings the petitioner, after narrating the fact that decree of divorce with an award of a capital sum and a finding for expenses was granted on 3 January 1996, makes the following averments:

Later the petitioner makes the following additional averments:

Those averments disclose a number of misconceptions on the part of the petitioner as to the consequences of the Sheriff's interlocutor of 8 August adhered to by the Sheriff Principal on 5 October. In the first place, it was simply the ordinary consequence of that interlocutor that the Sheriff would proceed to deal with the proof by affidavit evidence, that there would be no further notification to the petitioner that such proof was about to be considered by the Sheriff, that the matter would be dealt with by the Sheriff in chambers, and that there would be no further opportunity to address the Sheriff. If the petitioner was, as he avers, unaware that that was the procedural course which would be followed, his lack of understanding seems to me to be beside the point, since if he had understood how matters were to proceed, he would still have had no opportunity at that stage to participate further in the proceedings. His averment that he did not realise that legal representation was needed reflects the same misunderstanding. Legal representation was not needed, because the petitioner had, in consequence of his default, been excluded from any active role in the proceedings. The petitioner appears to regard the fact that the undefended decree was granted without his being afforded an opportunity to argue against it as an irregularity or flaw in the proceedings which entitles him to obtain review of the decree. On the contrary, however, that fact was the ordinary and regular consequence of his defences having been repelled in respect of his default. Secondly, it is clear from the terms of the letter to the petitioner from his former solicitors dated 22 January 1996 (No. 38/25 of process) that it was the extract decree which the sheriff clerk sent to them, and which they passed on to the petitioner. There is therefore clearly no foundation for the implication contained in the earlier of the two passages which I have quoted from the petitioner's pleadings that the petitioner was prevented from appealing timeously (and thus preventing extract) by delay on the part of his former solicitors in passing on the communication from the sheriff clerk. Mrs Davie submitted that if the petitioner had wished to be informed of the granting of decree before extract, so as to be able to consider timeous appeal, he could have made arrangements with the sheriff clerk to be informed when decree was granted. It was, she said, a matter for him. That may be so, but it seems clear from the general tenor of the petitioner's averments that it was not a course which he was aware he could take. I do not consider, however, that the petitioner found himself in that situation as a result of any irregularity in the proceedings, or any failure on the part of his former solicitors. There is, in my view, nothing in this chapter of the petitioner's averments which constitutes the sort of exceptional circumstances which would relevantly support a prayer for suspension.

The petitioner avers that he was without legal representation from after the date of the appeal to the Sheriff Principal which was heard on 5 October 1995 until after notification of the sequestration process was served on him. He avers, as I have already noted, that he did not realise that legal representation was needed because he was unaware that the Sheriff was going to make a decision. He avers that he contacted several (named) solicitors with regard to obtaining their services, but that none would "take agency". He does not indicate when such contact was made, but I infer from the context of the averment that it was after 22 January 1996. He avers that in February 1996 he contacted the Citizens Advice Bureau, who put him in contact with a solicitor, but that he could not help. Finally he avers that after service of the sequestration petition he found a firm of solicitors who were willing to act for him. They, I understand, were the Aberdeen solicitors acting for him at the time when the current petition was presented.

It is, in my view, entirely understandable that, following the unsuccessful appeal to the Sheriff Principal in October 1995, the petitioner's solicitors withdrew from acting for him. As they confirmed in their letter of 7 December 1995 (No. 38/22 of process), his legal aid certificate was at that stage withdrawn. As I have already said in dealing with the third chapter of averment, the averment that he did not realise that legal representation was needed because he was unaware that the Sheriff was going to make a decision discloses a failure on the petitioner's part to understand the procedural consequences of the Sheriff Principal's refusal of the appeal, but the fact is that, once his defences had been repelled, there was no continuing opportunity for the petitioner to be represented in the process. The petitioner was not left unrepresented at that stage as a result of any procedural irregularity or any failure on the part of his solicitors to act properly.

The remainder of the averments about lack of representation relate to the period after the petitioner learned of the fact that the decree had been granted and extracted. Representation during that period would not have enabled the petitioner to achieve anything more than he in fact did. He attempted to appeal late, but the attempt failed because late appeal was incompetent because the decree had been extracted. The attempt would have fared no better if he had been legally represented. His only recourse by that stage was to seek review of the decree in this court, whether by way of suspension or reduction. By May 1996 he had found solicitors who were willing to accept his instructions to initiate such proceedings. It is not suggested against him that his position in the present proceedings is worse because they were instituted in May rather than more promptly after extract of the decree. It therefore does not seem to me that any difficulty the petitioner may have had in obtaining legal representation after he learned of the extract decree relevantly goes to support his case for suspension.

The petitioner avers that the award of a capital sum of £70,000 was unjustified by the evidence available to the Sheriff; that due consideration was not given to section 10(6)(d) of the Family Law (Scotland) Act 1985; and that the respondent lodged no affidavit evidence in support of her claims on the petitioner's assets and their value at the date of separation. He also makes averments about the profitability of his business from year to year between 1988 and 1997; and avers that no valuations were made at the date of separation, that since he recovered his health he has had three valuations carried out, at figures ranging from £53,000 to £80,000, and that at the date of the separation he owned various items of machinery worth various sums totalling £2900. He then avers that the value placed on his assets by the respondent is vastly inflated, and reiterates that she produced no affidavit or documentary evidence to support her claim.

It does not seem to me that those averments are sufficient to afford relevant support to the petitioner's prayer for suspension. The petitioner cannot in my view obtain review of the decree of 3 January 1996 simply on averments that the decree was not justified on a true view of the petitioner's assets. To allow him to do so would render nugatory the Sheriff's decision to repel the petitioner's defences in respect of his default. In a case such as this, clear averments of the petitioner's financial circumstances so far as relevant to the issue of financial provision on divorce are no doubt a necessary part of a relevant case for suspension or reduction (Nunn v Nunn), but such averments will not ordinarily by themselves constitute a sufficient basis for such a remedy. It is in my view important not to lose sight of the fact that the petitioner was held to have defaulted in failing to obtemper the Sheriff's order upon him to produce a valuation of his assets. Having entered the process and lodged defences, he had available to him the opportunity of disputing the respondent's assertions about his assets and her contention that a capital sum of £70,000 was reasonable and appropriate, and of adducing evidence in support of his position. The Sheriff, exercising powers which were available to him, required the petitioner to vouch his position by producing a valuation. The petitioner failed to do so. His failure was held by the Sheriff to constitute default. As he was entitled to do, the Sheriff in respect of that default repelled the petitioner's defences and allowed the action to proceed as undefended. The petitioner had thus thrown away the opportunity of demonstrating that the respondent's claim was unjustified or excessive, and deprived the Sheriff of material by which to test the reasonableness of that claim. In that situation it does not, in my view, lie in the petitioner's mouth to say in this process, as the justification for his prayer for suspension, that the decree was pronounced on an inadequate evidential basis. The petitioner's averments about his financial circumstances and the lack of justification for the award of a capital sum of £70,000 (albeit still somewhat lacking in clarity) might well have formed part of a relevant case for suspension if they had been combined with other averments disclosing circumstances justifying review by suspension or reduction, but they do not on their own afford a sufficient basis for such a remedy.

Overview

Looking therefore, as I must, at the whole of the petitioner's averments, I am of opinion that they do not disclose exceptional circumstances which constitute a relevant case for suspension of the parts of the decree of 3 January 1996 which the petitioner seeks to bring under review.

In case I am wrong in regarding the decree as a decree in foro, and therefore wrong in testing the matter by reference to whether exceptional circumstances have been averred, I have also considered whether the petitioner's averments can be regarded as satisfying the lesser test applicable to a decree in absence (Robertson v Robertson). In my view the averments which I have considered do not, even when tested by that lesser standard, relevantly support the prayer for suspension.

In the event, therefore, I shall sustain the respondent's second plea-in-law and dismiss the petition.