Scottish Court of Session Decisions

In 1995 the parties, (here usually referred to as "the husband" and "the wife") raised actions of divorce against each other in the Sheriff Court. In each action there were conclusions relating to financial provisions. The husband (the appellant in this appeal) uses the term "cross action" to refer to his action of divorce. There followed a vast amount of procedure in the Sheriff Court which yielded an appeal print - in the action brought by the wife (for divorce, custody, financial provision, interdict and incidental orders) - which extended to nearly 300 pages, and contained more than 70 interlocutors. Throughout most of these proceedings the husband appeared in both actions on his own behalf, as a party litigant. For present purposes, it is unnecessary to do more than refer to the interlocutors and notes issued in the Sheriff Court and in the Inner House to see the history of the litigation down to 18 April 1998. On that date the sheriff dealt with certain motions relating to the recovery and examination of items and documents said to be relevant to the continued Proof in the wife's action and the cross action. The history thereafter is narrated in a Note by the Sheriff Principal appended to his interlocutor of 22 July 1998. The appeal to the Sheriff Principal prevented compliance with a timetable which had been prescribed for the Proof, and a fresh diet fixed for August 1998 also had to be discharged. In September 1998, before the Proof could be resumed, the husband wrote a letter bearing the date 8 September 1998 to "Juliet Eadie, Sheriff Clerk Depute, Edinburgh Sheriff Court". It was sent about 25 September 1998. It included the following:

There followed various assertions explaining the husband's dissatisfaction with the way the cases had been dealt with in the past. The letter concluded "The defence to the principle (sic) action, and the cross-action to it are now abandoned by me. Yours sincerely,". The letter was signed by the husband.

On 2 October 1998, the sheriff pronounced an interlocutor in the following terms:

Thereafter the husband sent a letter dated 6 October 1998 addressed "To the Court, Edinburgh Sheriff Court, Chambers Street, Edinburgh". It was addressed to "My Lady". It bore the same case reference and included the following:

The letter continued with certain assertions about the husband's life and circumstances, his difficulty in getting legal representation for his case in the past and his disappointments with decisions of the court. There were various other complaints. He expressed in that letter the wish that the court would investigate further allegations made therein. The letter included the following statement:

On 9 October in the action at the instance of the husband, after hearing representations from Mrs. Wallace, solicitor and from Mr. McFarlane, advocate, the sheriff pronounced an interlocutor in the following terms:

On the same date the same sheriff pronounced an interlocutor in the wife's action in the following terms:

Despite all that had happened and had led to the pronouncing of these interlocutors, the husband, hereafter referred to as "the appellant", marked appeals to the Court of Session in both actions. The appeals appear to have been marked on 21 October 1998. On 26 November 1998 the Inner House pronounced an interlocutor in the following terms:

The husband/appellant then lodged Grounds of Appeal (marked "43") on 23 December 1998. They are referred to for their terms. On 22 December 1998 the appellant enrolled a motion inviting the court "to pronounce an Order for hearing". That was opposed on behalf of the wife/respondent. The form of opposition narrated, "Reason for opposition: The Appeals in respect of both the principal action and the cross-action are incompetent". The appellant's motion was in fact dropped at the appellant's request and a fresh motion was enrolled at the end of January 1999. That motion was in the following terms:

That motion, which was opposed on inter alia the ground of incompetency, came before the Extra Division on the Single Bills on Tuesday 2 February 1999. After hearing parties, the court concluded that the correct course was to refuse the first part of the motion as being unwarranted by the Rules of Court or any practice, and to proceed to hear the submissions of the parties in relation to the matters bearing upon the competency of the appeals and bearing on the appellant's motion, in each case, for an order for hearing.

Counsel for the respondent invited the court to consider first the divorce action at the instance of the wife. He pointed out that that action became undefended as a result of the relevant interlocutor of 9 October. He submitted that the interlocutor of 15 October 1998 was a final interlocutor; that there was no provision in the rules for an appeal to the Court of Session against such an interlocutor pronounced in such circumstances; and that accordingly the appeal was not competent. He drew attention to Chapter 7, "Undefended Causes", of the Ordinary Cause Rules 1993, which expressly did not apply to actions of divorce: cf. Rule 7.1. Chapter 8 made provision for reponing but did not apply to divorce actions: c. Rules 8.1(1)(a) and 33.1(1)(a). Before the 1993 Rules came into force, in 1994, Rule 59B of the 1907 Rules (as amended) allowed certain rights to a defender who had not entered the process timeously but this provision did not appear in the 1993 Rules and had no bearing upon the present cases. (Reference was made in this connection to the Note by the Sheriff Principal in Macfarlane v. Macfarlane 1995 S.C.L.R. 794). In all the circumstances, the effect of the governing Rules was that where, as here, the defender (husband) agreed in court through his legal representative that the action should become undefended he could not appeal against the decree pronounced after Proof in the undefended action. In relation to the action at his own instance, the appellant, it was submitted, had clearly intimated to the court that he did not intend to insist upon that action, and he could not now appeal against the ordinary consequence of his doing so.

In reply to these submissions, the appellant argued that the silence of the 1993 Rules on the matter could not deprive a party of the right of appeal against a final interlocutor, as that right depended upon an Act of Parliament, namely the Sheriff Courts (Scotland) Act 1907, section 28. This statutory provision was consistent with and gave effect to" the general human right" of a litigant to a fair hearing. The action in which he, the appellant, was the pursuer, it was submitted, could not competently be abandoned except by the means provided for in Rule 23 of the Ordinary Cause Rules. No Minute of Abandonment had been lodged. The appellant also claimed, although the Grounds of Appeal did not refer to this point, that, although he had not been present in court on 9 October 1998, he had since learned from his solicitor that she was "adamant", that on that occasion in court, she had no instructions to abandon the appellant's action. Accordingly there had been a fraud upon, or by, the court leading to the interlocutor of 9 October 1998 pronounced in that action.

Counsel for the respondent/wife also referred to the two Grounds of Appeal relating to her action, being those numbered II and III in the document entitled "Grounds of Appeal for the Appellant". Ground of Appeal II asserted that there was "fresh evidence" to show that the respondent had not disclosed to the court or to the Scottish Legal Aid Board her true financial position; it also referred to alleged expenditure by the respondent since the interlocutor of 15 October 1998 and asserted that had the sheriff or the Scottish Legal Aid Board been aware that the respondent had certain undeclared resources, "before her motion for dismissal of the cause" there might have been a different decision or further enquiry. If this Ground of Appeal did relate to the wife's action (despite the words "before her motion for dismissal of the cause") it was not a ground related to any error by the sheriff that could be brought under review in an appeal process. It contained no reference to any error of law by the sheriff which was in any way related to the interlocutors sought to be appealed. It provided no basis whatsoever for reviewing the October interlocutors pronounced by the sheriff. Ground of Appeal III, it was submitted, was clearly related to happenings alleged to have occurred in the period prior to the events and interlocutors of September and October 1998 referred to earlier in this Opinion. It was thus abundantly clear that there was no basis whatsoever presented in the Grounds of Appeal which would enable the Court of Session to review the interlocutor of 15 October 1998 pronouncing decree of divorce. As to the action at the instance of the appellant, as pursuer, exactly the same points fell to be made in relation to Grounds II and III. In so far as Ground No. I was concerned, counsel submitted firstly that, unless the appellant could succeed in his appeal against the final interlocutor (of 15 October 1998) pronounced in the wife's action of divorce, it would follow that the parties were divorced by the interlocutor of 15 October 1998. Thus there could be no basis for the husband's continuing an action which was in substance an action of divorce at his instance, with ancillary or consequential craves appended to the conclusion for divorce. It was further submitted that a Minute of Abandonment in terms of chapter 23 of the Ordinary Cause Rules of the Sheriff Court was not the only method of abandoning a case. That method could, of course, be used, but it was particularly designed to enable a pursuer to abandon and to obtain a decree of dismissal, rather than absolvitor, by paying full judicial expenses,. In Hare v. Stein (1882), 9 R. 910 the court clearly accepted that a pursuer had an effective right to intimate orally in court, without lodging a Minute of Abandonment, that he intended not to insist in the action. This right was exercised in ordinary established practice.

In reply, the appellant acknowledged that he could not support Ground of Appeal III because he recognised that it raised matters preceding the events in October 1998, and these were matters which could not be explored except by some form of proof such as might be allowed in an action of reduction or other similar process. He sought to maintain however that Ground of Appeal II could be advanced. In doing so, however, he effectively departed from the suggestion that that Ground related to "fresh evidence". He submitted that the judgments of the sheriff in October 1998 were vitiated by the sheriff's failure to investigate matters which had been brought to her attention by, inter alia, the letters written to the court in September and October 1998 (i.e. before the interlocutors were pronounced), which, he maintained, showed that the whole basis of the wife's position in both actions required to be investigated by the sheriff. In relation to Ground of Appeal I, he acknowledged that this related only to the action in which he was the pursuer, but maintained that the effect of chapter 23 of the Ordinary Cause Rules was that the pursuer could not validly abandon other than by lodging a Minute of Abandonment in terms of Rule 23.1(1). He maintained that, unless such a Minute was lodged, the sheriff could not competently grant decree of dismissal; in support of this he founded upon the words of 23.1(2):

In our opinion, the appellant's argument based upon chapter 23 is clearly unsound. Rule 23.1 is conceived in favour of a pursuer who wishes to obtain decree of dismissal rather than absolvitor. That privilege is accorded if he actually pays the full expenses. If he does not do so the defender is "entitled to decree of absolvitor with expenses" see 23.1(3). It does not prevent the pronouncing of a decree of dismissal if the defender is content with such a decree, rather than seeking absolvitor. It is a matter of ordinary practice for a pursuer to intimate in court, through his legal representative, that he no longer insists upon his action, in whole or in part; and for the court to pronounce an interlocutor to give effect to the pursuer's non-insistence in respect of the claim expressly abandoned. Having regard to the history of the matter and to the terms of the relevant interlocutor of 9 October 1998 we consider that there is no substance whatsoever in this Ground of Appeal. The abandonment by the husband, per his solicitor at the bar of the court, at a diet convened especially for the purpose of confirming his intention to abandon as expressed in his informal letters to the court, was clear, unmistakable and effectual.

In our opinion, Grounds of Appeal II and III both seek to raise matters that are plainly not related to any power of this court in an appeal process to review the interlocutors sought to be appealed. These averments contained within these Grounds (including No. III which the appellant has expressly departed from) raise matters not of law but of alleged fact. If, as the appellant was plainly asserting, the relevant interlocutors were pronounced as a result of from some fraud perpetrated upon the court - or indeed as a result of alleged improper behaviour or omission by the sheriff - then no basis has been shown for dealing with such an issue of fact in an appeal process. It is not for this court to advise a party litigant about what other remedies, if any, might be available to him if he wishes to continue to make these assertions.

It follows, in our opinion, that there is no basis whatsoever shown in any of the appellant's Grounds of Appeal for granting the appellant's motion for an order for hearing in these appeals. As that motion must be refused in each of these appeals, it follows that the appeals themselves fall to be dismissed at this stage.

In the circumstances, it is unnecessary for this court to discuss the questions of competency which were raised by Mr. Kinroy, for the wife/respondent, and responded to briefly by the appellant himself. It is not necessary to enter into these questions of competency in order to deal with the matter before the court today and we should not wish to deal with the questions of competency raised without full argument. We were not able to receive any full argument in relation to the statutory background and the authorities from the appellant.

In the whole circumstances the appeals in both actions are dismissed.