Scottish Court of Session Decisions

[1] The parties to this petition were formerly husband and wife. They have previously litigated against each other. We shall throughout refer to the husband, who is the petitioner and reclaimer in the process before us, as "the petitioner" and to the wife as "the respondent".

[2] In August 1994 the respondent raised in Banff Sheriff Court an action for divorce from the petitioner in which she applied, under section 8 of the Family Law (Scotland) Act 1985, for an order for payment of a capital sum of £70,000. The petitioner lodged defences in which he maintained that the sum sought by way of a capital sum was excessive. Both parties were at that stage legally aided. On 7 February 1995 the Sheriff, having heard parties' solicitors, ordained the petitioner (who was a farmer) to lodge certain farm accounts. He further ordered that a report on a valuation of heritable property and farm machinery, already arranged to be carried out by a named company, be lodged when it became available. Proof was allowed and 23 May was assigned as the diet. On 9 May, no such report having been lodged, the Sheriff, having heard solicitors, on the respondent's motion ordered that the report be lodged within seven days. On 23 May the diet of proof set down for that day was discharged on the petitioner's motion because he was medically unfit to attend court. A fresh diet was fixed for 12 September. On 8 August the Sheriff heard the parties' solicitors on (1) 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 (2) the petitioner's motion once more to discharge the diet of proof and to allow him further time to lodge the report. 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 way of affidavit evidence. The petitioner marked an appeal to the Sheriff Principal against that interlocutor. The appeal was heard on 5 October and was refused. Following 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% per 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.

[3] Thereafter the respondent took steps to enforce the money decree, including in due course making an application to Banff Sheriff Court for the sequestration of the petitioner. Before any award of sequestration was made the petitioner presented to this court the present petition in which he sought (1) interim suspension of a charge for payment of the debt constituted by the decree of 3 January 1996, (2) interim suspension of that decree, (3) suspension of that decree 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, (4) a remit to the Sheriff for reconsideration of the award of a capital sum, (5) a remit to the Sheriff for reconsideration of the question of expenses and (6) 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. It seems that he had (presumably emergency) legal aid for the purpose of seeking these interim orders. So far as appears, the petitioner has not otherwise had the benefit of legal aid for the purposes of the present proceedings. He appeared before the Lord Ordinary and before us as a party litigant.

[4] In September 1997 the petitioner, under Rule of Court 4.2(5), requested the Deputy Principal Clerk to place a summons before the Lord Ordinary for leave to proceed without the signature of an agent. That summons concluded for production and reduction of the decree for the capital sum and for expenses pronounced by the Sheriff at Banff on 3 January 1996. The request was placed before Lord Eassie who refused to grant it on the ground that as framed "it does not disclose prima facie grounds for reduction of the Sheriff Court decree". The petitioner was urged to seek legal advice. Contrary to the belief expressed by the petitioner before us, Lord Eassie did not rule that an action of reduction of the Sheriff Court decree was incompetent.

[5] Meantime, the respondent had lodged answers to this petition. Those answers included a plea to its competency, based on Rule of Court 49.30 (which precludes the bringing of proceedings for the suspension of any decree of divorce pronounced in an undefended action). That plea was discussed in the Outer House and on a reclaiming motion before an Extra Division. That Division held that the constituent parts of the decree of 3 January 1996 were severable and that Rule 49.30 did not render incompetent a prayer for suspension of a decree so far as concerned with a capital sum and expenses. The plea to the competency was repelled without, however, any discussion of the general question of the competency of a petition for suspension as a means of reviewing a decree pronounced in a lower court. The petition was remitted to the Outer House.

[6] After sundry further procedure the case was heard by the Lord Ordinary on procedure roll, when counsel for the respondent moved the court to sustain her second plea in law and to dismiss the petition as irrelevant. The discussion before him proceeded on the basis that the petition was competent - though the Lord Ordinary expressed considerable doubt as to whether suspension was the proper process for the petitioner to invoke in the circumstances of this case. Counsel then appearing for the respondent indicated to the Lord Ordinary that she had been unable to find authority setting out what averments were necessary for relevancy in a petition for suspension of a Sheriff Court decree in circumstances such as the present. She submitted that it was appropriate to draw an analogy with the test for relevancy in an action for reduction of such a decree. Reference was made to authorities concerned with reduction of a decree in foro (such as Adair v. Colville & Sons 1926 S.C. (H.L.) 51 and Philp v. Reid 1927 S.C. 224) and to those concerned with reduction of a decree in absence (such as Robertson's Executor v. Robertson 1995 S.C. 23 and Nunn v. Nunn 1997 S.L.T. 182). She submitted that the decree of 3 January 1996, in so far as relating to the monetary craves, was in the circumstances a decree by default and thus a decree in foro and that the petitioner's averments were irrelevant to meet the "exceptional circumstances" test required for reduction of such a decree. The Lord Ordinary, having considered the authorities and the petitioner's averments, held that the test for relevancy of his averments ought to be derived by analogy from cases of reduction. He then held that the decree sought to be impugned was a decree in foro and that the petitioner's averments were irrelevant to instruct a case for suspension of such a decree. He further held that, even when tested by the less stringent standard applicable to a decree in absence, the petitioner's averments were irrelevant to support the prayer for suspension. He accordingly dismissed the petition as irrelevant. Against that interlocutor the petitioner brings this reclaiming motion.

[7] Before us the petitioner's submissions at the initial hearing of the reclaiming motion were largely directed to the competency of impugning the Sheriff Court decree by a petition for suspension and the incompetency, as he maintained, of doing so by an action for reduction. He referred to Maxwell - Court of Session Practice p. 579 and pp. 584-5; Dobie - Sheriff Court Practice pp. 28-9; Macphail - Sheriff Court Practice para. 18-04; Walker - Civil Remedies pp. 193-4, p. 200 and p. 207; Maclaren - Bill Chamber Practice pp. 49 and 80; The Court of Session Act 1988 section 35; the Parliament House Book para. 60.1.1; Lamb v. Thompson (1901) 4 F. 88, especially per Lord Traynor at pp. 91-2; Wilson v. Bartholomew & Co. (1860) 22 D. 1410, especially per Lord Curriehill at p. 1414 and Scoular v. McLaughlan (1864) 2 R. 955, especially per Lord President Inglis at p. 961.

[8] None of these authorities, in our view, supports the proposition that the bringing of an action for reduction is an incompetent form of process for seeking to set aside a decree of an inferior court which has been extracted. The petitioner's belief that Lord Eassie's decision under Rule of Court 4 proceeded on that basis is mistaken. In modern times an action for reduction would, in the absence of special circumstances, be the usual mode of seeking to set aside such a decree. To be relevant for that purpose the averments of a pursuer in such an action would require to satisfy the test applicable to the type of decree in issue.

[9] It is a moot question whether a petition for suspension is in modern times a competent process for that purpose. There is no doubt that such a petition is a competent method of staying diligence, including diligence threatened on an extract decree; but, that having been secured by an interim order, the usual practice would then be to bring a separate action for reduction. The remedy of suspension is an ancient one, but in modern times (where statutory provision is made for appeals against the judgments of inferior courts) its scope is more limited than at one time (Macphail - Sheriff Court Practice para. 18-04). That it remains, however, available in some circumstances as a process of review of some Sheriff Court decrees is supported by the authorities referred to in Macphail and by the re-enactment of what is now section 35 of the Court of Session Act 1988.

[10] It is unnecessary for the disposal of this case to decide the matter of competency. The respondent has no surviving plea challenging the competency of the proceedings and no argument to that effect was presented on her behalf in the Outer House or before us. While it is pars iudicis to take notice of a matter of competency (and the Lord Ordinary expressed considerable doubt as to whether suspension was the proper form of process), we do not, particularly against the procedural history of this case, find it necessary or appropriate to reach a decision on that matter. We are prepared, as was the Lord Ordinary, to proceed for the purposes of this case on the basis that the petition is competent.

[11] However, we are clearly of the view that the test for relevancy of an application by petition to suspend permanently a Sheriff Court decree must in effect be the same as would be applicable in an action for reduction of the same decree. The remedy sought is in substance the same, namely, the setting aside for all time of a decree pronounced by the inferior court and against which an appeal is not or is no longer available. The interests of public policy dictate that such a step should not be taken lightly or without due consideration of the whole circumstances (Robertson's Executor v. Robertson at p. 30). These circumstances will include the nature of the decree which is sought to be impugned.

[12] In the course of the initial hearing of the reclaiming motion a member of the court raised a matter which, although touched on in the petitioner's pleadings, does not appear to have been clearly focused before the Lord Ordinary. This related to the basis upon which the sheriff proceeded on 3 January 1996 to grant decree for the capital sum.

[13] By interlocutor of 8 August 1995 the sheriff allowed the cause to proceed as undefended and "and to the Pursuer a Proof of her averments by way of affidavit evidence". Those averments, in addition to addressing the ground of divorce, included the following:

[14] In his defences the petitioner had admitted that as at the date of the parties' separation he owned certain properties and "same will be listed by the defender with relative values and obligations of any secured thereon". Following a general denial he had made certain averments directed to his contention that no award of a capital sum should in the circumstances be made.

[15] The cause, having been appointed to proceed as undefended (Ordinary Cause Rules 1993, Rule 33.37), the pursuer lodged two affidavits, one by herself and the other by her sister. Those affidavits addressed the ground of divorce, as well as jurisdiction and the circumstance that there were no children of the marriage still under the age of 16 years. Neither affidavit touched on the financial provision sought. It appears that the sheriff proceeded on 3 January 1996 to award a capital sum (for the whole amount craved) without having before him any evidence, whether oral or in affidavit form, in relation to financial provision.

[16] The reclaiming motion was adjourned to allow parties an opportunity to address the court on (1) whether the sheriff was entitled, in the absence of relative evidence, to make the order for the payment of a capital sum and (2), if he was, what consideration if any he was required to give to the appropriateness of the sum claimed. The petitioner in person and counsel for the respondent were subsequently heard on those matters.

[17] The petitioner submitted that the sheriff was not entitled, in the absence of relative evidence, to make any award of a capital sum. His interlocutor allowing to the respondent proof of her averments by way of affidavit evidence was not restricted to the matter of divorce but extended to other matters, including her claim for a capital sum. Section 8 of the Family Law (Scotland) Act 1985 empowered the court to make an order for the payment of a capital sum, but required that any such sum be justified by the principles set out in section 9 and that it be reasonable having regard to the resources of the parties. Practice Notes in force at the material time for all the Sheriff Courts (including that at Banff) require that, where there were financial conclusions, the affidavits lodged should deal with them and be full, accurate and up to date in that regard. Reference was made to Bennett - Divorce in the Sheriff Court (5th edition) pp. 130-3. McInnes - Divorce Law and Practice in Scotland p. 152 was to the same effect. This requirement, which had been adopted in the Sheriff Court when jurisdiction in divorce actions was extended to it, had followed the equivalent practice in the Court of Session (see Notes of Guidance dated 11 April 1978 printed in the Parliament House Book C2011-4). Without such evidence the sheriff could not apply the statutory principles of sections 8 and 9 of the 1985 Act. In the cases relied on by the respondent (Berry v. Berry 1991 S.L.T. 42 and Cochran v. Cochran 1992 G.W.D. 27-1579) the court had before it (oral) evidence from which it could, in the absence of challenge, draw inferences. The respondent had failed to prove her claim. She had not established by evidence either her own resources or those of the petitioner. In these circumstances the sheriff's interlocutor awarding the capital sum was ultra vires and should be set aside.

[18] Counsel for the respondent submitted that the reclaiming motion should be refused. Evidence was required only to establish the ground of divorce, that being a matter affecting status. The Guidance Notes of 1978 had been issued following provision being made for the admissibility in undefended actions of divorce of evidence in the form of affidavits. Reference was made to the Act of Sederunt (Rules of Court Amendment No. 1)(Consistorial Causes) 1978 (1978 S.I. 106). The Guidance Notes had no particular status in law. The Act of Sederunt tended to suggest that evidence in an undefended action was required only in respect of the merits. A reference by a member of the court to Maclaren - Court of Session Practice p. 750 and Thomson and Middleton - Manual of Court of Session Practice pp. 198-9, to the effect that, under the law as there stated, an undefended action of aliment (only) proceeded as an ordinary action, was adopted. The respondent had set out on averment details of the financial position of both parties, including the circumstance that she had no assets. To repeat these things on affidavit would have been an empty exercise. Where a divorce action was undefended on the financial claims made (or became undefended in that respect) the pursuer in the action was entitled, as in a petitory action, to decree for the amount claimed. In any event the sheriff was entitled in the circumstances with which he was presented to award the capital sum craved without having evidence on that matter. The absence of any valuation of the relative property was due to the petitioner's default in that respect. The proper inference to be drawn was that he could not, on the basis of any proper valuation of the property, resist the crave. While it was accepted that in both Berry v. Berry and Cochran v. Cochran the inference had been drawn from evidence, the same could properly be done where the financial provision was set out in detail on averment and the petitioner had defaulted on the order made on him under section 20 of the 1985 Act to produce the relevant valuations.

[19] The question before us is whether the petitioner's averments, or any of them, are relevant for inquiry. The petitioner did not before us challenge the Lord Ordinary's disposal on relevancy except in so far as it concerned the matter which was first focused in the course of the reclaiming motion. The Lord Ordinary, towards the end of his Opinion, observed -

The question which now arises is whether the matters discussed at the adjourned hearing before us are such as could, if combined with proof of lack of justification in fact for the award of a capital sum of £70,000 (the onus of such proof being on the petitioner), afford a sufficient basis for the remedy sought by him. In that regard it may be important to notice that the remedy of reduction of a decree, whether a decree in foro or a decree in absence is not one which exists as of right but involves an element of judicial discretion (Adair v. Colville & Sons, per Viscount Dunedin at p. 56; Robertson's Executor v. Robertson 1995 S.L.T. 429, per Lord McCluskey at p. 434). A measure of judicial discretion is a necessary ingredient, not least because of the public interest in the finality of litigation.

[20] Section 8(1) of the Civil Evidence (Scotland) Act 1988 requires that in certain family actions, including an action for divorce, the "grounds of action" be established by evidence. That provision has its origins in section 36 of the Court of Session Act 1830. Prior to the enactment of the Succession (Scotland) Act 1964 it seems to have been regarded as incompetent to include in a summons for divorce financial claims arising on divorce (Ellison v. Ellison (1901) 4 F. 257; Stuart v. Stuart 1926 S.L.T. 31). The proper implication may thus be that "grounds of action" in section 36 of the 1830 Act (and as in substance re-enacted in section 8(1) of the 1988 Act) relate solely to the conclusion concerning status. Section 26 of the Succession (Scotland) Act 1964, however, empowered the court to make in an action of divorce an order for financial provision, including for a capital sum. From the outset the Court of Session appears to have regarded that provision as conferring a discretion which, even in an undefended action, fell to be exercised on the basis of evidence put before it. In Gould v. Gould 1966 S.C. 88 L.J.C. Grant, expressing the Opinion of the Second Division after consultation with the judges of the First Division, said at pp. 92-3 after a reference to section 26:

In that case the pursuer sought both a periodical allowance and a capital sum. It may be noted also that an argument was presented that, the financial conclusions being petitory and the action undefended, the pursuer was entitled to decree for payment de plano. That contention was plainly rejected.

[21] As at 1966 the evidence envisaged by the court was oral testimony. Section 29 of the Administration of Justice Act 1977 widened the scope of the Court's powers in relation to the use of evidence in affidavit form. Under its extended powers the Court enacted the 1978 Act of Sederunt which permitted the use of evidence in the form of affidavits in certain actions, including undefended actions of divorce. However, that Act did not, in our view, on a sound construction import any departure from the requirement that financial claims even in undefended actions should be supported by evidence. In the context of the 1978 Act the Notes of Guidance of 1978 were prepared and issued. They had the approval of the Lord President and were printed in the Parliament House Book. The Notes included and include guidance in relation to affidavits where financial claims are made. Paragraph 10 states:

Paragraph 12 states:

Paragraph 13 states:

[22] When jurisdiction in actions of divorce was extended to the Sheriff Court by the Divorce Jurisdiction, Court Fees and Legal Aid (Scotland) Act 1983 the sheriff principals issued Practice Notes to the same effect (reproduced in the Parliament House Book at pages D602-6 and in Bennett - Divorce in the Sheriff Court (5th edition) at pp. 130-4). The Family Law (Scotland) Act 1985 made new provision for the disposal of claims for financial provision on divorce. The court continued to have a discretion in relation to such claims but was directed to exercise it within more precisely defined parameters (sections 8 and 9). It may also be noted that the same Act in effect abolished the previous rule that undefended actions for aliment (simply) should be treated as ordinary undefended actions (section 3(1)(d)).

[23] It is plain that, whatever precisely the legal foundation for it, there has been since at least 1966 a well-established rule (at least of practice) that an application for financial provision on divorce should, except where parties are agreed, be supported by evidence and that such evidence should be considered by the judge or sheriff when deciding whether or not to grant the application. That rule is recognised by the specialist books on practice (Clive - Husband and Wife (4th edition) para. 24.017; McInnes - Divorce Law and Practice in Scotland p. 152; Bennett - Divorce in the Sheriff Court (5th edition) pp. 130-3). Where a defender fails to make a full and frank disclosure of his or her assets, inferences adverse to him or her may be drawn from other evidence in the case (Berry v. Berry at p. 43; Cochran v. Cochran per Lord Coulsfield at p. 4). But in all cases, except where there is agreement, it is appropriate that there be an evidential basis to warrant the award.

[24] Plainly there was no such basis before the sheriff when, by his interlocutor of 3 January 1996, he made an award of a capital sum of £70,000. It was submitted on behalf of the respondent that in the circumstances of this case that was unimportant. The reason why the sheriff did not have fuller information about the relevant capital assets was the petitioner's failure to obtemper the sheriff's orders. An affidavit by the respondent dealing with her financial claims would merely have repeated what was said by her on averment. We are unable to accept that submission. While his failure to disclose assets (including non-compliance with court orders in that regard) was a matter to be taken into account, it did not of itself justify the grant of the financial application. Moreover, compliance with the rule not only ensures that the application is supported by sworn testimony, but, if the rule is properly followed, the affidavit evidence should give a full, accurate and up to date explanation of why the amount claimed would, having regard to sections 8 and 9 of the 1985 Act, be justified and reasonable. In her averments in the Sheriff Court action the respondent put certain values on certain capital assets as at the date of the parties' separation (in 1989). She gives no explanation as to the basis for those figures (historical cost, professional valuation or otherwise) or how those figures were related to the resources of the parties at the date of the application (in 1994). A mere repetition on affidavit of the statement on averment might well, if properly considered, have made appropriate a requirement by the sheriff that the basis for the amount of the respondent's claim be more fully explained - at a By Order hearing or otherwise.

[25] In these circumstances the petitioner's averments disclose, in our view, a larger basis for reviewing the sheriff's award than a mere claim that the amount awarded was not in fact justified by the true financial position of the parties. Even on the assumption (which, without deciding the matter, we are disposed to favour) that the stricter standard applicable to decrees in foro should be applied, we are unable to say at this stage that the petitioner is bound, after proof, to fail to persuade the court to grant him a remedy. Much may turn on whether and, if so, to what extent he is able to establish that the award of £70,000 as a capital sum was in the relevant circumstances extravagant. The form of any remedy will also, having regard to section 12(1) of the 1985 Act, require careful consideration at that time.

[26] It is appropriate that the proof which is allowed should be restricted to such matters as are relevant for inquiry. The averments in Statement 3.2 and the Answer thereto relate to matters which were not pursued before us. We shall accordingly and for the reasons given allow the reclaiming motion and allow to parties a proof before answer of their averments on record under exclusion of those contained in that Statement and Answer.