Scottish Court of Session Decisions

[1] This appeal concerns an action for declarator that the pursuer and appellant was married by cohabitation with habit and repute to the late Robert Noel Sangster Logan from about February 1996 until his death on 4 May 1998. The Lord Ordinary, having heard proof, pronounced decree of absolvitor on 18 January 2000.

[2] At the outset of the appeal counsel for the appellant invited the court to remit the case back to the Lord Ordinary to hear further evidence or, alternatively, to remit to one of our number to hear such evidence. He also sought discharge of the diet set down for the hearing of the appeal to enable such further evidence to be heard. This motion was made at the bar without reference either to a minute of amendment of the closed record or to a minute of res noviter having previously been lodged. It was explained that the purpose of the motion was to enable the appellant to lead evidence from a lady whose name became known to the appellant, for the first time, during the course of the proof. During the proof, the Lord Ordinary had heard evidence that the lady had become Mr. Logan's girlfriend for a short period immediately before his death. Reference was made to Rule of Court 38.21 and also to section 37 of the Court of Session Act 1988. In addition counsel referred to the course taken by the Inner House in Pirie v. Leask 1964 SC 103. The new evidence would, it was said, cast doubt upon the credibility of evidence given by the second defender, the son of Mr. Logan, who was held by the Lord Ordinary to have been telling the truth and whose evidence had been crucial to the Lord Ordinary's determination. It was explained that it had not been possible to trace, make contact with and precognosce the new witness until very recently.

[3] The motion was strongly resisted for the respondents. It was pointed out that the appeal process had begun in February 2000. The original grounds of appeal had been lodged in March 2000. Amended grounds of appeal had been lodged in September 2000. In June 2000 the case was set down for a hearing fixed for 24 April 2001. The parties had appeared at the By Order roll on 7 March 2001 when the appellant was given three weeks within which to consider the full notes of evidence. On 3 April 2001 it was intimated for the appellant that the appeal would proceed upon the amended grounds of appeal, none of which made any reference to fresh evidence. The appellant was ordained to lodge a supplementary appendix containing the notes of evidence prior to the date set down for the hearing of the appeal. On 20 April 2001, of consent of the respondents, the appellant was allowed to lodge further amended grounds of appeal. No intimation was given in the original grounds of appeal or as amended or as further amended that the appellant would seek to introduce new evidence. In any event, the evidence sought to be introduced was not material to the Lord Ordinary's determination. That had proceeded upon the insufficiency of the evidence adduced by the appellant in support of her case based upon cohabitation with habit and repute. The subject of the evidence of the proposed new witness had been spoken to at the proof, not only by the second defender but also by an independent witness, Mrs. Markus. The veracity of Mrs. Markus was not attacked. Reference was made to the notes of evidence of these witnesses. Such a motion would only be granted in exceptional circumstances. Reference was made to Miller v. Mac Fisheries Ltd. 1922 SC 157. In any event, there was no minute. Reference was made to Maxwell on Court of Session Practice p. 560. The matter came too late. No explanation was tendered as to why it had not been brought before the court prior to the date set down for the hearing. There would be prejudice from any further delay in hearing the appeal.

[4] Standing the absence of any minute, it was only possible to proceed upon the oral submissions for the parties. It is clear that the subject matter of the proposed new evidence would have been the relationship between Mr. Logan and the lady whose evidence, it was contended, should now be heard. In the course of the evidence before the Lord Ordinary, it was said that this relationship developed within the short period of a week or so prior to Mr. Logan's sudden death. The second defender, who was led as a witness by the appellant, had spoken to conversations with his father during that period. In them his father had made reference to his having met the witness in question and to having been happy in her company. This evidence was given against the background that there had been rumours that Mr. Logan had committed suicide. This was a matter which had been the subject of an apparently acrimonious discussion between Mr. Logan and the appellant subsequent to his father's death, concerning a statement made by Mr. Logan to third parties after his accident and while he was dying. The second defender said that the lady had attended both the public funeral and the private burial of Mr. Logan. In the course of his evidence the second defender had been challenged by counsel for the appellant that he was lying on this matter. However, a witness, Mrs. Markus, led for the respondents, spoke to having met the lady in the company of Mr. Logan and to having been told how the lady and Mr. Logan came to meet. Her evidence on these matters supported the evidence given by the second defender. She was not challenged as giving untruthful evidence. Furthermore, counsel for the appellant, in giving some indication of the evidence which he proposed to lead from the new witness, specifically accepted that the lady had only come to know Mr. Logan very shortly before his death and that she had attended at his funeral. Her existence had been well known to the appellant for a considerable period prior to the present appeal diet.

[5] The submissions for the appellant did not appear to us to disclose circumstances that warranted this court exercising its discretion to hear additional evidence. The circumstances in the present case are far removed from those in the case of Pirie v. Leask. Furthermore the second defender's evidence on the relationship between his father and this lady did not stand alone. Moreover, the evidence heard by the Lord Ordinary was consistent in material respects with what it was suggested the new evidence would amount to. Nor would the proposed new evidence bear upon the substantial basis for the Lord Ordinary's determination, since the new relationship did not arise until after the appellant and Mr. Logan had ceased to cohabit. The subject matter of the proposed new relationship does not appear to be relevant to the real issue upon which the case turned, namely that of cohabitation with habit and repute. In any event, no good reason was provided as to why the correct procedure had not been followed and a minute of amendment or a minute authorising the new evidence had not been lodged. In these circumstances, we refused the motion and ordered that the reclaiming motion should proceed upon the basis of the amended grounds of appeal before the court.

[6] In his opinion, the Lord Ordinary began by setting out the law which he considered to be applicable to the case. Some of this ground was traversed in the submissions before us, but neither counsel for the appellant nor counsel for the respondents took issue with the statements of law relied upon by the Lord Ordinary or suggested that they were not applicable to the present case. Likewise, no criticism was made of the Lord Ordinary's description of the issues which he required to determine as set out in the following passage in his opinion:

[7] Having set out the applicable law, the Lord Ordinary thereafter turned to consider the evidence in the case. He began by describing the circumstances of each of the appellant and Mr. Logan and their family relationships. In relation to the latter he said this:

[8] At one point in his submissions counsel for the appellant appeared to take issue with this assessment of Mr. Logan's character but no attempt was made to refer us to any evidence or other material which in any way detracted from or subverted the Lord Ordinary's findings on this matter.

[9] Thereafter the Lord Ordinary proceeded to describe how the relationship between the appellant and Mr. Logan commenced in January 1994 and how it progressed rapidly from a social to a sexual relationship. In about May 1994 the appellant moved in to live with Mr. Logan at his house at 2A Westbourne Gardens, Glasgow. The manner in which the appellant and Mr. Logan conducted themselves in their personal, business and financial affairs is then described by the Lord Ordinary. He concluded on the evidence that "they were clearly established as a couple and were so regarded by those with whom they came into contact". No criticism was directed by counsel for the appellant to this finding.

[10] Before proceeding to consider the submissions further, it is appropriate to have regard to the appellant's pleadings. As noted above, the declarator sought is one of marriage by cohabitation with habit and repute from about February 1996 until Mr. Logan's death in May 1998. His death occurred as a result of an accident while hill-walking. The date for commencement of the period of cohabitation founded on in the declarator represents the date when, according to these averments, Mr. Logan asked the appellant to marry her. Their initial plans had been to get married forthwith but this marriage was deferred until after the weddings of the appellant's daughter and of Mr. Logan's son, the second defender. It is further averred that in about February 1996 Mr. Logan bought a wedding band for the appellant, that a separate ring was made up with diamonds owned by Mr. Logan and that the appellant wore the wedding band from about February 1996 onwards and the diamond ring thereafter, once it had been completed. There were also averments which bore upon the issue of habit and repute to the effect that the appellant and Mr. Logan attended many functions together, that Mr. Logan introduced the appellant to his social and business acquaintances as his wife, that the families of the appellant and Mr. Logan were clearly attached to Glasgow Cathedral where Mr. Logan was an elder, that members of the various groups and committees with which Mr. Logan was involved, considered them to be married and that neighbours and customers of the Health shop owned by the appellant considered them to be married. Furthermore the appellant averred in terms that she and Mr. Logan were believed to be married by all except their close family.

[11] In his opinion the Lord Ordinary began his more detailed consideration of the evidence by noting that it is an unusual feature of the case that the appellant was quite precise about the time when, according to her evidence, Mr. Logan and she became husband and wife. This material was related to events in February and March 1996 summarised by the Lord Ordinary from the appellant's evidence as follows:

[12] No issue was taken with this summary of the appellant's evidence as accurately representing the position adopted by her in the witness box, the clear inference being that she accepted that up until February 1996 at least there had been no matrimonial intention on the part of either herself or Mr. Logan.

[13] Counsel for the appellant, in his principal submission in support of his first ground of appeal, to the effect that the Lord Ordinary erred in fact and in law in that the evidence adduced by the appellant did not fall short of proving her case on record and of satisfying the legal requirements necessary to establish marriage by cohabitation with habit and repute, argued that the Lord Ordinary had given no satisfactory reasons for rejecting the appellant's account of these events and her contentions as to interpretation to be given to the matrimonial intentions of both Mr. Logan and herself which underlay these events. Moreover the Lord Ordinary had, in assessing the evidence bearing on these events, failed to give proper weight to the evidence of two other witnesses, namely, the appellant's daughter, Barbara Davidson, and her husband.

[14] We begin by considering the latter aspect of these submissions. Having summarised the appellant's evidence in the passage cited above, the Lord Ordinary continued as follows:

[15] We were referred to the relevant passages in the evidence given by Mr. and Mrs. Davidson but counsel could not point to any misinterpretation of the effect of their evidence in the summary given by the Lord Ordinary. We are satisfied that the evidence of these two witnesses was such that the Lord Ordinary, who heard and saw them, was entitled to conclude that their evidence supported no more than an announcement of an engagement and of the giving of a ring as an engagement ring. But the matter goes further than that, when the whole evidence on this aspect is considered. The Lord Ordinary had regard to other evidence, which he accepted, given by immediate neighbours of the appellant and Mr. Logan as to statements made by the appellant that the ring was an engagement ring and that the wedding was to be postponed until after the marriages of Mr. Logan's son and the appellant's daughter. These witnesses also spoke to their attendance at an engagement party at the house at 2A Westbourne Gardens. It was accepted by counsel for the appellant that the Lord Ordinary was correct in stating that no witness said that after the visit to the hotel in Auchterarder in March 1996 either the appellant or Mr. Logan had represented that they were now married to each other or that the ring was a wedding ring. We also note at this point that neither the appellant's brother nor her friend, Mairi Ogg, who were said by the appellant to have been confidants to the events of March 1996, were led in evidence. Nor did counsel challenge the Lord Ordinary's rejection of evidence given by another witness, Jayne Black, who referred to a ring worn by the appellant as a wedding ring. But in rejecting the appellant's evidence as untruthful on this aspect of her case, we observe that the Lord Ordinary also had regard to evidence given by the second defender which contradicted an assertion by the appellant that the second defender had wanted his father to postpone the wedding of the appellant and his father until after the second defender's own wedding. Counsel for the appellant did not criticise the Lord Ordinary in taking this evidence into account. It was clearly relevant to the issue which he had to determine. We can find nothing in what was said by counsel for the appellant that would warrant us in holding that the Lord Ordinary was not entitled, on the evidence which he summarised and accepted, to be satisfied that the appellant and Mr. Logan had agreed to become married at some future date, that they had thus become engaged to be married and that what was under discussion was an event which would take place as a future date, not one which had been rendered superfluous by what had already happened in March 1996.

[16] Counsel for the appellant appeared to lay stress upon the proposition that it would be open as a matter of law for a marriage to be established by cohabitation with habit and repute, notwithstanding the fact that at some stage during cohabitation the parties had agreed to celebrate the fact of their existing matrimonial intention, and thus their state as husband and wife, by way of a church ceremony. In doing so, counsel made particular reference to the case of Kamperman v. MacIver 1994 SC 230 and to the evidence given with regard to cohabitation between the appellant and Mr. Logan prior to February 1996, which counsel called cohabitation as man and wife. That such cohabitation is relevant as part of the background circumstances against which the present case requires to be determined, is not in issue. It is clear that the Lord Ordinary did have regard to that evidence in reaching his conclusion that the appellant and Mr. Logan were clearly well established as a couple and were so regarded by those with whom they came into contact. Likewise, it was not necessarily fatal to the appellant's case, as counsel for the respondents accepted, that the announcement of an engagement was not followed by a wedding, if the parties thereafter cohabited for such a period of time and in circumstances from which it could be inferred that they did so having consented to take each other in marriage and to stand in the mutual relation of husband and wife as was said by Lord Westbury in Campbell v. Campbell (1867) 5 M (H.L.) 115 at 140. But the appellant must establish on the evidence that outward element which, as is pointed out in the passage from Clive on Husband and Wife (4th ed.) para. 05.025, cited by the Lord Ordinary, is, together with the mental element, a necessary requirement for establishing marriage. In the present case this outward or factual element is to be sought in the evidence directed to establishing cohabitation with habit and repute. Cohabitation without habit and repute will not suffice. As regards the period prior to February 1996 the Lord Ordinary was fully entitled to conclude that during that period the essential mental element for marriage was not present. In the present day and age it is perhaps difficult to categorise such cohabitation as illicit, in the same manner as in the past, as, for instance, carrying with it the immoral character of a liaison between a man and a mistress. Even in the present day, however, an election on the part of a man and a woman to live together and share bed and board without more can not carry with it an assumption that their relationship is to be one of husband and wife, rather than that between two partners. It is perhaps of some note that in the current census, one of the questions differentiates between the relationship of husband and wife and that of partners. By the same token, to say of a man and a woman that they are living together as man and wife does not necessarily distinguish their relationship as one of marriage as opposed to partnership. Again, as stated in Clive on Husband and Wife, (4th ed.) paras. 05.032 and 05.033, it is clear that it is essential for the establishment of a marriage by cohabitation with habit and repute that, in modern language, the parties must have been held and reputed to be husband and wife and that the repute must have been sufficiently general. These are matters of fact.

[17] Counsel for the appellant's main submission was concerned with the Lord Ordinary's approach to the evidence directed to habit and repute. He accepted that there was conflicting evidence on the matter and therefore that any conclusion had to be reached upon a balancing of the whole evidence. It required that the Lord Ordinary should determine where the balance lay, a determination to be carried out after taking account of all relevant material. Counsel submitted that the Lord Ordinary had unreasonably taken an inference adverse to the appellant from the fact that the appellant had only called a limited number of witnesses to support her contentions on record and the fact that she had not called as witnesses, either her brother or her friend, in whom she said she had confided about the events in February and March 1996. Evidence had been led by her from her daughter and son-in-law and from other witnesses who were not members of her family. Further, the Lord Ordinary had erred when carrying out the balancing exercise, in that he had, without good reason, set aside the evidence of three of those witnesses whose evidence was directed to habit and repute. The reason for his doing so was that he considered that the evidence of these three witnesses was insufficient to support the averments which the appellant had offered to prove. But when regard was had to the evidence given by each, they were individuals who had formed an impression of the relationship between the appellant and Mr. Logan from contact with them. Such evidence was always material relevant to the issue of habit and repute. It was said that by failing to take such evidence into account, and thereby not placing it in the balance against competing evidence, the Lord Ordinary had erred in law.

[18] Before addressing these submissions, it is appropriate to bear in mind that in the passages from the various authorities cited by the Lord Ordinary, to which no exception was taken by counsel for the appellant, it is made clear that when looking to the evidence before it for the purpose of deciding whether cohabitation with habit and repute is made out, the Court is seeking to determine where the preponderance of the evidence lies when there is a conflict of evidence. In such a matter it is also appropriate to have in mind the case made on record. As the Lord Ordinary observed, and again this statement of law was not challenged by counsel for the appellant, it was "necessary to seek evidence of habit and repute which is general and consistent, so preponderating as to leave no substantial doubt." In determining this matter, the Lord Ordinary, as he did, was fully entitled to look to the appellant's averments on record. In these averments, the appellant offered to prove that Mr. Logan introduced the appellant to "his social and business acquaintances" as his wife. Counsel for the appellant was unable to point to any witness who could be regarded as such an acquaintance, who gave evidence in support of that contention. Furthermore the appellant asserted that all those who knew the appellant and Mr. Logan, believed them to be married. The Lord Ordinary set out the evidence of a number of witnesses who contradicted this assertion. These witnesses included political and business colleagues, neighbours, both in Glasgow and in Elie, and, in particular, Mr. Logan's cleaner, whom the Lord Ordinary regarded as a particularly impressive witness. The Lord Ordinary also observed that no close friend of the appellant or of Mr. Logan, no one connected with any of the various church, business, political or cultural associations with which Mr. Logan was associated, nor even any of his neighbours, was called to give evidence in support of such assertions. This comment was made against the background that in advance of the proof the appellant had been called upon to intimate, and had intimated, an extensive list containing the names of all the persons to whom Mr. Logan introduced her as his wife and who considered Mr. Logan to be married to her. Moreover, the Lord Ordinary, having heard the evidence of the appellant's daughter and son-in-law, which is summarised in his opinion and which, taken in context, was not criticised as inaccurate, concluded that their evidence fell short of saying that the appellant and Mr. Logan held themselves out as, and were regarded by members of their immediate family as being, married. We were referred to parts of the evidence of these two witnesses but would observe that there was nothing in that evidence which caused us to doubt that the Lord Ordinary was entitled to reach the conclusion that he did in respect of it.

[19] Counsel for the defenders and respondents submitted, correctly in our view, that where opinions are founded by witnesses upon a subjective basis and by reference to differing circumstances and connections, there will be room for contrary assumptions to be made as to the nature of a relationship existing between a man and a woman. The Lord Ordinary summarised the evidence led for the appellant, apart from that of the appellant's daughter and son-in-law, Mr. and Mrs. Davidson, which was directed to proof of habit and repute. This came from nine witnesses. Of these nine witnesses, six spoke to occasions when Mr. Logan was either introduced to the witness as the appellant's husband or referred to by her as her husband. None of the remaining three spoke to any such introduction or reference. One, David Gilchrist, who provided professional services to the appellant as a chartered surveyor in 1995 and 1996, proceeded upon an impression that they were living together as man and wife but could not say whether or not they were married. Another, Brian Watson, who first met the appellant at a public meeting in July 1994 and thereafter had professional dealings with her as the managing director of a residential letting agency, going to her shop several times, said that he always thought of them as a couple, married or living together as husband and wife. The third, Philip Neave, who rented property from the appellant from about May 1996 and thereafter became friendly with the appellant, came to know the appellant and Mr. Logan socially. He had a strong impression that they were a married couple. We were referred to the evidence of these witnesses in detail, but the substance of it, as summarised by the Lord Ordinary, was not criticised as inaccurate. All that can be said is that each of these witnesses formed a subjective view of the relationship between the appellant and Mr. Logan without any overt reference by one or other of the appellant or Mr. Logan to their relationship as being that of husband and wife. However, no one of them was on any closer terms of acquaintanceship with the appellant and Mr. Logan than those on whose evidence the Lord Ordinary did place reliance in determining where the preponderance of the evidence lay. Indeed, in the case of at least one of these three witnesses, Brian Watson, his evidence was at its highest equivocal. More to the point, the Lord Ordinary noted, as he was entitled to do, that all nine witnesses were on the periphery of the acquaintanceship of the appellant and Mr. Logan as a couple. When he came to determining where the preponderance of the evidence lay, the Lord Ordinary was fully entitled to compare the nature of these witnesses' acquaintanceship with that of those who gave conflicting evidence and at the same time to remark upon the absence of evidence from those who had closer contact or acquaintance with the appellant and Mr. Logan, which was supportive of the appellant's assertions. In our opinion, the evidence of the three witnesses which the Lord Ordinary set aside added nothing of any substance to the weight of the evidence given by the other six witnesses in relation to the issue of habit and repute. That issue is not determined simply by reference to numbers. Rather it depends upon how the man and woman were regarded over as wide as possible a spectrum of connections between witnesses and the couple, with more weight being accorded to the views of those more closely connected with or having more intimate dealings with and knowledge of the relationship between the couple, than to the views of those who have had only occasional or slight dealings or acquaintanceship with the couple. In the present case, the Lord Ordinary held that the evidence led for the appellant fell very far short of proving her case on record. From what was conceded by counsel for the appellant as to the lack of evidence supporting certain of the averments made on behalf of the app

[20] The Lord Ordinary further considered that the evidence also fell far short of satisfying the legal requirements for constitution of marriage by cohabitation with habit and repute. He expressed his reasoning for this conclusion as follows:

In our opinion, the Lord Ordinary was fully entitled so to hold. The preponderance of the evidence led before him clearly lay against the contention of the appellant that cohabitation with habit and repute was established. In the absence of proof of such cohabitation, there was no room for drawing the inference of tacit consent to marriage on the part of the appellant and Mr. Logan.

[21] We do not leave out of account that in reaching this conclusion, the Lord Ordinary also reviewed the evidence relating to events in the period after the engagement of the appellant and Mr. Logan and prior to his death in May 1998. No criticism was directed to the summary of that evidence in the Lord Ordinary's opinion. The Lord Ordinary noted that although the relationship had not progressed beyond engagement to be married, there was no distinct deterioration in the relationship until late in 1997. The Lord Ordinary concluded that it was as an engaged couple who were living together that they were involved in these events. He referred to evidence that the physical aspect of the relationship deteriorated prior to May 1998 and that the relationship itself had deteriorated markedly no later than December 1997 onwards. Counsel for the appellant advanced no criticism of these findings in fact by the Lord Ordinary. Finally, the Lord Ordinary had regard to evidence given about events occurring in the last few weeks prior to Mr. Logan's sudden death. From that evidence he concluded that a separation between the appellant and Mr. Logan on 11 April 1998 was not one intended merely to be no more than a temporary one, as averred by the appellant. Again no criticism was directed by counsel for the appellant to this finding. The Lord Ordinary took the view that the appellant's conduct was consistent with an acceptance that the relationship was not that of husband and wife and could be ended without more ado. This conclusion was not challenged by counsel for the appellant as one which the Lord Ordinary was not entitled to reach, upon the evidence before him.

[22] In our opinion, there is no substance in any of the submissions made on the appellant's behalf. It has not been shown that the Lord Ordinary erred in any material respect in his assessment of the evidence led before him. Nor has it been demonstrated that he was not entitled to make the findings in fact that he did upon the evidence which he accepted. Nor has it been shown that he failed in any way to apply properly the principles of law relating to proof of marriage by cohabitation with habit and repute. For these reasons the reclaiming motion is refused.