Scottish Court of Session Decisions

[1] In this petition for suspension and interdict the petitioner seeks suspension of a charge for payment served on him on 21 March 2000 by the second named respondent, a sheriff officer, acting on the instruction of the first respondent. The charge for payment bears to proceed upon a decree for aliment of the two daughters of the petitioner and the first respondent which was pronounced in the sheriff court in Glasgow on 14 July 1992 and interdict is sought against the first respondent or anyone on her behalf from doing further diligence on that decree, or on the charge. The second respondent has not entered the process but the petition is opposed by the first respondent to whom I shall refer, for simplicity, as "the respondent". Interim suspension and interim interdict were granted on 3 April 2000.

[2] The facts are largely undisputed and are within short compass. Both parties were in agreement that the petition should be disposed of without the need for the hearing of oral evidence, the relevant documentary productions being agreed in terms of a joint minute.

[3] It appears from the terms of the petition and those productions that in 1989, in contemplation of their divorce, the petitioner and the respondent entered into a Minute of Agreement, dated 31 January and 6 February 1989 and registered in the Books of Council and Session on 27 February 1989. The second clause of that Minute of Agreement dealt with issues concerning the two daughters. Custody of them was to be with the mother (the respondent) and the petitioner was to have access to his daughters at times and dates to be mutually arranged. The clause further provided that the petitioner would pay aliment for each child at the rate of £140 per month.

[4] By 1992 the petitioner had fallen into arrears in the payment of aliment, and it is averred by the respondent that she then consented to a reduction in the amount of aliment to £50 per month per child on the condition that the sum of £1,000 be paid in final settlement of the then outstanding arrears. It is admitted by the respondent that the sum of £1,000 was paid to her and that on 14 July 1992 there was pronounced in proceedings between the petitioner and the respondent in the sheriff court in Glasgow the decree for aliment upon which the disputed charge for payment proceeds. The petitioner and respondent were respectively the pursuer and the defender in those proceedings. The extract of that decree (No. 6/5 of Process) is in these terms:-

[5] A little later, namely on 6 August and 8 September 1992, the parties respectively executed a further Minute of Agreement, registered in the Books of Council and Session on 16 September 1992. On a narration in the third recital of the preamble that "the parties have now reached a certain agreement concerning aliment for the children" the provisions of the Minute of Agreement proceeded to stipulate for the deletion from the 1989 Minute of Agreement its clause 2 and then substituted fresh provision relating to the custody of the children and access to them. However, no further provision was made in respect of aliment.

[6] In the meantime aliment at the rate of £50 per month per child was being paid to the respondent by the petitioner. Payment of aliment at that monthly rate continued until the end of 1993 when it ceased. The petitioner avers that at that time he was made unemployed. Although not admitted, that averment is not actively disputed.

[7] On 6 April 1994 a further interlocutor was pronounced in the proceedings in the sheriff court in Glasgow. The extract of it (No. 6/2 of Process) is, so far as material, in these terms:-

Although pronounced in absence it is not suggested that this interlocutor is in any way vitiated or affected by lack of proper citation on or intimation to the present respondent, who was the then defender in those proceedings.

[8] It is further accepted by the respondent in her pleadings in the present petition that, payment of aliment having ceased at the end of 1993, no demand or request for payment of aliment was made until November 1999, to be followed a little while later by the charge for payment of arrears of aliment amounting, with interest, to a sum in excess of £9,700.

[9] The short contention for the petitioner advanced in the present petition is that the order for aliment contained in the decree of 14 July 1992 upon which the charge proceeded, had been reduced to nil as from 1 January 1994 by the decree pronounced by the sheriff on 6 April 1994.

[10] Counsel for the respondent for his part submitted that the interlocutor of 14 July 1992 did not state that it was a variation of the obligation contained in the Minute of Agreement into which the parties had entered in 1989. It was, he said, therefore a free-standing decerniture for aliment. The contractual obligation to pay aliment at the rate of £140 per month per child only disappeared thereafter by virtue of the provisions of the 1992 Minute of Agreement, which deleted the provision for aliment in the earlier Minute of Agreement, and accordingly thereafter only the decree of 14 July 1992 prevailed. It was thus independent of the Minute of Agreement. The later interlocutor of 6 April 1994 bore to vary the obligation to pay aliment which was contained in the Minute of Agreement of 1989 - but that obligation no longer existed. The decree pronounced on 6 April 1994 did not express itself as varying the independent decerniture in the interlocutor of 14 July 1992, that being the basis of the petitioner's alimentary obligation, and accordingly the sums decerned for in that interlocutor remained outstanding and prestable.

[11] Counsel for the respondent was unable to proffer any explanation for the respondent's not having questioned the absence of payment of aliment from 1 January 1993 until, on her account, November 1999. At one point he rather accepted that the respondent was now seeking to take advantage of what counsel described as a technical failure on the part of the petitioner's advisers to take appropriate steps in 1994. By appropriate steps I understood him to mean ensuring that the interlocutor pronounced by the sheriff was more appropriately framed.

[12] In the course of his submissions counsel for the respondent referred to the Opinion delivered in the case of MacDonnell v MacDonnell (unreported, 4 May 2001) and in particular to what was said at paragraph [3] thereof.

[13] In my view there is no merit in the standpoint adopted by the respondent and her advisers.

[14] It is plain that, as is accepted by the respondent in her answers to the present petition, the interlocutor of 14 July 1992 was pronounced as part of the agreement whereby the petitioner would pay £50 per month per child in place of the sum of £140 per month previously agreed under the 1989 agreement. While it is of course true that the terms of the interlocutor do not expressly bear to vary the amount of the aliment payable under the preceding agreement, it is evident aliunde that, as is accepted by the respondent, the petitioner's obligation to aliment his daughters had been varied as to its amount. The 1992 Minute of Agreement thus refers in its recital to "a certain agreement on aliment having been reached". It was not suggested that there was any other agreement than that the monthly payments be £50 per child.

[15] One then turns to the interlocutor of 6 April 1994. While, with hindsight and in light of the attitude now taken, many years later, by the respondent, it might be said that those responsible for framing the interlocutor might with greater diligence and foresight have framed it more felicitously, I do not consider that there can be any doubt as to the intention and the effect of the interlocutor. Within the terms of the interlocutor one finds an express recital that the original conventional obligation in the 1989 agreement to pay aliment at the rate of £140 per month per child had been subject to a reduction in amount to £50 per month by virtue of the "court order dated 14 July 1992". The reference to the "court order dated 14 July 1992" is plainly a reference to the interlocutor of 14 July 1992 and no contrary suggestion was made by counsel for the respondent. It is of course the case that the interlocutor of 14 July 1992 does not expressly bear to vary the conventional arrangement but there is no doubt that the interlocutor came in place of the preceding agreement on the amount of aliment and that in substance and reality the amount of the petitioner's obligation to aliment had been reduced from £140 per month per child to £50 per month per child. Having thus recorded that the sum of £140 had been reduced to the sum of £50 per month, the interlocutor of 6 April 1994 plainly goes on to reduce that latter sum to nil and to backdate that alteration in the petitioner's alimentary obligation to 1 January 1994. In short, anyone reading that interlocutor would consider that the petitioner's liability to aliment the children, which had been fixed at £50 per month per child on 14 July 1992 had been reduced to nil with effect from 1 January 1994.

[16] That interpretation of the interlocutor is consistent with the respondent's own actings, which were not to question the absence of monthly alimentary payments until late 1999, and for which absence of demand or question counsel for the respondent was unable to offer any explanation, other than a possible attempt to take a windfall advantage of what was said to be a failure on the part of the petitioner's advisors in 1994 to ensure a wholly correct expression of matters in the terms of the interlocutor.

[17] In my opinion it is clear that the intended and actual effect of the interlocutor of 6 April 1994 was to reduce the petitioner's liability to pay aliment for his daughters to nil. The instruction of sheriff officers to serve a charge for payment of arrears said to have accrued between 14 July 1992 until 24 August 1998 (in the case of the child DLP) and to the date of the charge in the case of the other child was thus without any proper justification, the petitioner's liability for aliment having been reduced to nil as from 1 January 1994.

[18] It is also to be observed (pertinent to the prayer for suspension of the charge) that the charge for payment is in respect of sums of aliment dating from 1 June 1992, notwithstanding the admission in answer 2 that a sum of £1,000 was paid in full and final settlement of arrears of aliment up to 14 July 1992 and that between 14 July 1992 and 1 January 1994 the petitioner duly paid aliment at the rate of £50 per month in respect of each of the parties' children by standing order. Accordingly, on any view, the charge for payment is inept.

[19] In these circumstances I shall grant decree suspending the charge in question and since I consider it clear that the interlocutor of 6 April 1994 reduced to nil the petitioner's obligation of aliment from 1 January 1994 I shall also grant decree interdicting the first respondent or anyone acting on her behalf from doing any further diligence on the decree of 14 July 1992, or on the charge for payment.