Scottish Court of Session Decisions

Ali v. Andrew [2003] ScotCS 20 (29 January 2003)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Kirkwood Lord Cameron of Lochbroom Lord McCluskey	P43/96 OPINION OF THE COURT delivered by LORD McCLUSKEY in PETITION of ASLAM MOHAMMED ALI Petitioner and Reclaimer; against LORNA JANE ANDREW or ALI Respondent: for SUSPENSION and INTERDICT _______

 

 

Act: Party;

Alt: Dewar, QC; Morison Bishop

29 January 2003

Background

1. This litigation has a long and convoluted history, which is fully set out in the Opinions of (1) Lord Macfadyen dated 19 October 1999, (2) the Extra Division dated 30 January 2001 (delivered by Lord Hamilton), and (3) the Lord Ordinary (Lord Nimmo-Smith) (dated 22 November 2001) This reclaiming motion has been taken against the Lord Ordinary's interlocutor of 22 November 2001. It is unnecessary to repeat the history in detail. It is sufficient for present purposes to outline the salient and material features.

The sheriff court proceedings

2. The petitioner (the husband) and the respondent were married in 1967. In 1994, the respondent raised an action of divorce against the petitioner in the sheriff court. In the Initial Writ she applied, under section 8 of the Family Law (Scotland) Act 1985 (the Act), for payment by the petitioner of a capital sum of £70,000. The averments in support of that claim are quoted in paragraph [3] of the Lord Ordinary' Opinion. In essence, the case averred was to the effect that, at the date of separation (the "relevant date"), on 17 May 1989, the petitioner, who was in business as a farmer, was the owner of heritable property (essentially relating to the farming carried on by the couple) worth £90,000, that the farm machinery that he had in his possession was worth approximately £20,000 and that he had recently sold some land which, it was averred, had yielded approximately £30,000. The total value of these assets, which were said to constitute the matrimonial property for the purposes of section 10 of the Family Law (Scotland) Act 1985, was thus said to be £140,000; but it was averred that the farm business overdraft amounted to approximately £15,000. The respondent was averred to have no assets. However, it was averred that she had suffered economic disadvantage as a result of having given up work to look after the family and assist the petitioner with the running of the farm. The petitioner lodged defences claiming inter alia that the sum craved was excessive. Following sundry procedure, the sheriff held that the petitioner had failed to comply with earlier orders made by the court requiring him to lodge certain material and to instruct a valuation that would assist in the valuing of the heritable property and machinery. In respect of that failure, the sheriff, on 8 August 1995, pronounced an interlocutor holding him to be in default and, in exercise of the power contained in the Ordinary Cause Rules, Rule 33.37 (2)(a), allowed the cause to proceed as undefended under Part II of Chapter 33 of the Ordinary Cause Rules. The interlocutor also provided, "Repels the Defences; Allows the cause to proceed as undefended and to the Pursuer a proof of her averments by way of affidavit evidence". An appeal to the sheriff principal by the petitioner was opposed by the respondent and refused on 5 October 1995; the expenses of the appeal were awarded against the petitioner as an assisted person. Despite the terms of section 89(1) of the Sheriff Courts (Scotland) Act 1907, the sheriff principal wrote no note explaining his interlocutor. Following the unsuccessful appeal, the petitioner's solicitors withdrew from acting for him, legal aid being apparently no longer available to the petitioner. On 3 January 1996, the sheriff pronounced an interlocutor in the following terms:

"BANFF 3 January 1996. The Sheriff having considered the cause Finds it established that the marriage has broken down irretrievably: therefore Divorces the defender from the pursuer, and Decerns and Decerns against the Defender for payment to the Pursuer of a capital sum of £70,000, payable as at this date; with interest thereon at the rate of eight per centum per annum from this date; Finds the defender liable to the pursuer in expenses. Allows an account thereof to be given in and Remits the same when lodged to the Auditor of Court to tax and to report".

The decree was extracted on 18 January 1996. The petitioner learned of the decree on or about 22 January when an extract of it was sent to him by his former solicitors, to whom the sheriff clerk had sent it in error. The petitioner enrolled a motion to the sheriff principal; but we do not have the terms of that motion before us. The motion was opposed by the respondent and was refused on 7 May 1996. Again there was no note by the sheriff principal explaining the grounds upon which he pronounced his interlocutor. The petitioner thereafter attempted to appeal to the Court of Session but abandoned the attempt. The respondent took immediate steps to enforce the decree for payment. A charge for payment was served on the petitioner and, on 20 May 1996, the respondent applied for sequestration of the petitioner. The petitioner then presented this petition to the Court of Session: the remedies sought, interim and permanent, as summarised in Lord Nimmo Smith's Opinion at paragraph [5], will be considered later.

Proceedings in the Court of Session

3. In September 1997, the petitioner, as a party litigant, invoking Rule of Court 4.2 (5), attempted to proceed in the Court of Session with an action of reduction of the decree, but the Lord Ordinary (Lord Eassie) refused leave because the summons as framed did not disclose prima facie grounds for reduction. In terms of the rule, that decision was final. On 29 May 1998, following a Procedure Roll hearing, the Lord Ordinary (Lady Cosgrove), dismissed the petition as incompetent. The petitioner successfully reclaimed against that decision and the respondent's plea to the competency was repelled: (the decision of the court is briefly reported as Ali v Ali 1999 SLT 943). The competency plea then under consideration was a very restricted one, and the Inner House made no general ruling in relation to the competency of proceeding by way of petition to review a decree in the Sheriff Court and to obtain the remedies sought in the present petition. What that Court appreciated, and held, was that the petitioner was seeking to suspend not the whole decree but only those parts thereof relating to the payment of a capital sum and expenses. The Opinion of the Court stated, "In our view there is no doubt that the decree can be split into its constituent parts and in our view, therefore, the action based on suspension of the decree for a capital sum is one which is competent in this court." Following that decision, the respondent has not attempted to persuade the Court that the petition is otherwise not competent to enable the petitioner to achieve the remedies sought in the prayer. Indeed, since that time (10 December 1998) the respondent has had no plea to the competency of the petition. The petition proceedings having been returned to the Outer House, the respondent then persuaded the Lord Ordinary (Lord Macfadyen) to dismiss the petition on the ground that the averments in the petition were irrelevant. An Extra Division (herein referred to as "the Extra Division") granted a reclaiming motion from that decision, and allowed a proof before answer on certain averments in the petition, others having been deleted by the Lord Ordinary: (see Ali v Ali (No. 2) 2001 SLT 602). In allowing a proof, the Court did not find it necessary to decide the general matter of competency: cf paragraph [10] of that Court's Opinion. Lord Nimmo Smith heard the proof and, for the reasons given in his Opinion, concluded that there were no circumstances to justify the suspension of the decree; accordingly, on 22 November 2001, he sustained the respondent's 4^th plea in law and refused the prayer of the petition. It is the interlocutor containing that decision against which the petitioner has now reclaimed. It is appropriate to record at this point that, with minor exceptions, the petitioner represented himself throughout the proceedings in the Court of Session; and did so in presenting this reclaiming motion.

The submissions

4. The petitioner lodged Grounds of Appeal numbered 1 to 26. However, when he presented his submissions in support of the reclaiming motion he did so by reading a carefully prepared statement, typed copies of which were presented to the Court and to counsel for the respondent at the start of the oral hearing. We refer to that document. Putting it as shortly as we can, the petitioner and reclaimer argued that no evidence had been adduced before the sheriff to entitle him to pronounce the decree of 3 January 1996; that the evidence presented to the Lord Ordinary by the respondent was fatally flawed in a number of respects; that it was only the net value of the matrimonial property that fell to be shared; that the sheriff and the Lord Ordinary had omitted to take account of the petitioner's debts in ascertaining the value of the matrimonial property; that the respondent had failed by means of admissible and satisfactory evidence (including expert evidence) to discharge the burden of proof resting upon her in relation to the value of the matrimonial property; that the court had not taken due account of the expert evidence led for the petitioner and had also neglected to use its powers under the Act to ascertain the true value of the matrimonial property and the resources of the parties at the material dates; that the Lord Ordinary had not been justified in rejecting evidence adduced for the petitioner, including evidence relating to a gift from the petitioner's parents to assist in the purchase of the house; that the provisions of the Act, and in particular the principles contained in it, had not been properly applied; that the Lord Ordinary had not properly taken account of the evidence about the petitioner's lack of resources to meet a substantial capital award; that the nature of the matrimonial property had been ignored in respect that no account had been taken of the fact that it was virtually all tied up in a farm business which was producing little income but upon which the petitioner was financially dependent; and that regard should have been had to the alleged decline in the value of the matrimonial property between the relevant date and the making of an award under section 8 of the Act. He also criticised the reasoning of the Lord Ordinary. Counsel for the respondent replied in detail to the 26 paragraphs of the Grounds of Appeal and to the petitioner's submissions. In essence, he submitted that the Lord Ordinary was correct in all his decisions, for the reasons comprehensively set forth in his Opinion. He did not dispute that the sheriff, by issuing the interlocutor containing the decree for immediate payment by the petitioner of £70,000, with interest at 8%, without having any evidence whatsoever to warrant the granting of decree for that, or any other, sum, had erred in failing to comply with his duties under the Act when determining the capital sum to be awarded. Nonetheless the sheriff would not have been justified in making a nil award. Accordingly, for the reasons given by the Lord Ordinary, he submitted that there were no grounds for reduction of that decree, in whole or in part. The fact that the award of £70,000 appeared to give the respondent an unequal and larger share of the net matrimonial property was justifiable on the basis that she had suffered economic disadvantage as a result of the marriage. He stated that he "would be reluctant" to ask this Court to dismiss the petition on the ground of incompetency.

The Issues

5. From the submissions of the parties, the Opinions of the two Extra Divisions, the Opinion of the Lord Ordinary explaining the interlocutor reclaimed against, and all the other material placed before us by the parties, we have identified the matters that we have to consider in order to dispose of the Reclaiming Motion. The matter of competency is considered later. We must first determine the approach that this Court has to take to the grounds advanced for setting aside (in part) the decree dated 3 and extracted 16 January 1996. The approach must be that indicated by the Extra Division. As stated in paragraph [24] of the Opinion of that Court, the test for relevancy "must in effect be the same as would be applicable in an action for reduction of the same decree". That Court also concluded [23] that, in all divorce cases in which there is an application for financial provision on divorce, "it is appropriate that there be an evidential basis to warrant the award". And in paragraph [24] the Court stated - and there is no dispute about this - "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". Accordingly it is quite clear that in granting the decree for financial provision specified in the interlocutor of 3 January 1996 the sheriff did not properly exercise his statutory functions.
6. The next matter relevant to this court's approach is the standard to be applied when considering if the court should grant the remedy of reduction: this is obviously influenced by the nature of the decree which is ought to be impugned, that is to say, whether the decree is in foro or in absence. The Lord Ordinary deals with the matter in paragraphs [10] to [12]. The Extra Division does so in paragraphs [19] and [25]. In each instance, without considering it necessary to decide the point, the Court preferred the view that the impugned decree was a decree in foro rather than a decree in absence.
7. In our view, the decree which the petitioner seeks to have set aside was a decree in foro. The petitioner lodged defences to the Initial Writ and took part in the proceedings in the Sheriff Court until the sheriff, exercising her power under Rule 33.37, found him in default, repelled the defences and allowed the action to proceed as undefended. Even thereafter he continued to take an active part in the unsuccessful attempt to reverse the interlocutor of 8 August 1995 by appealing it to the sheriff principal. The fact that the proof allowed by the sheriff was undefended did not mean that the decree pronounced by the sheriff on 3 January 1996 was a decree in absence: "A decree by default is a decree in foro": Maclaren, Court of Session Practice, p. 696.
8. The significance of this conclusion is the bearing that it might have upon the approach to be taken by this Court to the motion by the petitioner to hold that grounds exist for exercising the Court's power to reduce the impugned decree. We refer in this regard to the Opinion of the Extra Division, paragraph [19]. It cannot be contended that a person in the petitioner's position has an absolute right to have such a decree reduced, whatever its flaws. Even in the case of a decree in absence, the court has a discretion not to grant the remedy of reduction. There are equitable considerations to be kept in view in any proceedings for suspension or reduction of a decree of court: Maclaren, Court of Session Practice, p.693. Such considerations might tell against reduction even when the decree sought to be reduced should not have been granted and has been obtained in circumstances in which the person against whom the decree has passed has been innocent of any fault. The position of a pursuer in an action of reduction when the decree is in foro can hardly be more favourable for him and is likely to be less favourable. Furthermore, equitable considerations might still bar the remedy of reduction altogether or make it more difficult for the Court to exercise its discretion in his favour. The matters to be established before the court will grant the remedy of reduction have been discussed in many cases, including Robertson's Executor v Robertson 1995 S.C. 23, Adair v David Colville & Sons Ltd 1926 S.C. 51, and Nunn v Nunn 1997 SLT 182, and a distinction has been drawn between the approach of the court in relation to decrees in absence and the approach to decrees in foro: see the argument for the reclaimer and also the Opinion of the court in Robertson's Executor supra; Maclaren, op. cit. page 496. What, however, cannot be in doubt is that a decree in foro may be reduced: Mackay, The Practice of the Court of Session, Chapter CVI; and Summary Applications and Suspensions, by George Jamieson (2000), section D, Parts 4 and 5. In Forrest v Dunlop (1875) 3 F 15, the Lord Justice Clerk, delivering the Opinion of the Court said, of a decree in foro "It is also open to the party to bring a reduction of the decree on the ground that it was obtained through inadvertence, in which case the Court, although it will require a strong statement of facts to support such an application, has the power to award substantial justice". In our opinion, although it might well be more difficult for a pursuer to succeed in an action of reduction of a decree in foro than in an action of reduction of a decree in absence, there is some basis for holding that, in the present case, the usual distinction that might ordinarily be drawn between a decree in foro and a decree in absence is rather difficult to justify and apply. For, although it is now too late to question the sheriff's finding on 8 August 1995 that the petitioner was in default in not obtempering the interlocutor of 9 May 1995, the effect of the interlocutor pronounced on 8 August 1995 (as quoted above) was that it became impossible for the petitioner to take any further effective part in the proceedings which would determine his liability to make a capital payment to the respondent. This was clearly recognised by Lord Macfadyen in his Opinion, where he stated, at page 14, that once the sheriff had repelled the defences the petitioner would have "no opportunity at that stage to participate further in the proceedings" and would be "excluded from any active role in the proceedings". The petitioner certainly tried to participate further and to play an active role by appealing against the interlocutor of 8 August 1995; and it is difficult to see what more he could have done. For, once his appeal to the sheriff principal failed, his entitlement to legal aid ended and his solicitors withdrew from acting, so that matters proceeded to decree without his knowledge or further participation (these matters are all dealt with in the Opinion of Lord Macfadyen). There was no obligation upon the respondent after 8 August 1995 to serve upon the petitioner copies of the affidavits that were allowed by the interlocutor of that date; nor was there any obligation upon the respondent or anyone else to inform him when the "proof" referred to in that interlocutor was to take place. It is not disputed that he learned of it only after decree had been granted (apparently in chambers) and the decree extracted: the sheriff clerk sent a copy of the extracted decree to the petitioner's former solicitors, who then forwarded it to him. Even if he had applied his mind to what was likely to happen at the proof from which he was barred, and even if he took sound legal advice on the matter, he should, and probably would, have expected the sheriff not to grant decree for immediate payment by him of a large capital sum without evidence as to the value of the matrimonial property as at the relevant date and of the resources of the parties as at the date of the proof. It was not to be expected that the sheriff would simply ignore the requirement to have evidence on these matters and grant decree for the sum sued for, without any explanation and without making any allowance for the fact that even on the respondent's own averments the net value of the matrimonial property at the relevant date appeared not to exceed £62,500: see the Lord Ordinary's Opinion at paragraph [25]. Nor would it have been evident that the sheriff would not make use of the power conferred by section 14(2)(b) of the Act to make an order for the valuation of the property. In these circumstances, it would, in our view, be quite unfair to treat the petitioner as if he had simply, deliberately and finally turned his back upon the divorce proceedings and was prepared to accept whatever result the sheriff arrived at, albeit the petitioner had been at fault in failing to do what the court had ordered him to do to assist in the assessing of the value of the matrimonial estate. It is not easy for us to understand why the sheriff went the length of dismissing the defences and preventing the petitioner from taking any further part in the proceedings. Of course, by failing to obtemper the orders of court the petitioner effectively barred himself from leading evidence about the value of the property; but it seems rather extreme to have prevented him from remaining in the process if only for the limited purpose of submitting that the sum sought was excessive, or even that the expenses should be modified in respect of the period when he had the benefit of legal aid. However, we cannot review the relevant interlocutors; and regrettably the sheriff principal did not append to his interlocutor refusing the appeal a note setting out the grounds upon which he proceeded, as required by section 89(1) of the Sheriff Courts (Scotland) Act 1907. We must determine if, in all the circumstances, a miscarriage of justice has taken place as a result of the petitioner's being unable to take part in the proceedings that followed the repelling of his defences. We consider that, in the unusual circumstances of the granting of the decree that it is sought to impugn, our approach should not be as demanding as it would be if the decree in foro had been granted in circumstances in which the pursuer had simply, deliberately and willingly decided to play no further part in the litigation. If it appears that a miscarriage of justice has indeed occurred we must then judge if, on a consideration of all relevant circumstances, including those of the respondent, justice would require the granting of the unusual remedy of reduction of the decree pronounced on 3 January 1996.

The interlocutor of 3 January 1996

9. The mere fact, if it be a fact, that the sheriff improperly and without due regard to the appropriate procedures pronounced a decree for a sum larger than the facts, or the available evidence, would have warranted would not alone be a sufficient basis for holding that a miscarriage of justice has occurred. But equally, the culpable failure of the petitioner to obtemper certain orders made by the sheriff did not of itself entitle the sheriff to grant decree for the sum sued for without any enquiry at all. As the Extra Division said, in paragraphs [23] to [25],

"...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.

10. 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."

As we have noted, Mr Dewar, for the respondent, did not seek to challenge the conclusion of the Extra Division (paragraphs [15] to [24] that evidence of the financial position of the parties was required, and that in the present case the sheriff who pronounced in chambers the interlocutor of 3 January 1996 had no evidence whatsoever to entitle him to assess the sum due at £70,000 and to award that sum. We have no hesitation in holding that the interlocutor of 3 January 1996 should not have been pronounced by the sheriff in the absence of any evidence bearing upon the financial circumstances of the parties and other matters relevant to the making of a section 8 order. We shall return later to examine the details of the interlocutor.

The Lord Ordinary's approach

11. The Lord Ordinary, as he was bound to do, approached the matter on the basis of the guidance contained in the Opinion of the Extra Division. The relevant passage in that Opinion is contained in paragraph [25], "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 [the petitioner] is able to establish that the award of £70,000 as a capital sum was in the relevant circumstances extravagant". In addition to having this guidance at the proof, it is clear that throughout these proceedings the petitioner concentrated his evidence and submissions to the Lord Ordinary upon the amount of the capital sum and the unsatisfactory basis upon which it was determined: he has always argued that the sum awarded was excessive, not that he should not have been ordained to pay anything. Indeed, as the Lord Ordinary records, the petitioner has offered sums of money and other compromises to the respondent since January 1996 - see paragraph [22] of the Lord Ordinary's Opinion. The respondent has also focused almost exclusively upon the issue of the amount of the capital sum that it would have been appropriate for the sheriff to award if he had addressed his mind to it. It is hardly surprising, therefore, that at the proof the parties concentrated their attention, their evidence and their submissions on one issue, namely whether the evidence that the respondent could and should properly have laid before the sheriff, by way of affidavit or otherwise, to enable the sheriff at the undefended proof to perform his duty under the Act, would have been likely to result in an award of a sum significantly less than £70,000; to such an extent that when that lesser sum is compared with £70,000, the actual award of £70,000 is seen to be "extravagant".

The criticism of the approach before the Lord Ordinary

12. In our opinion, however, it is clear that the Opinion delivered by the Extra Division did not compel the Lord Ordinary to confine his consideration to that one aspect of the matter, to the exclusion of all other relevant considerations. The words quoted from paragraph [25] start with, "Much may turn ...". These words did not require the Lord Ordinary to leave out of account all considerations other than the amount of the capital sum, or the narrower, but more precise, issue of whether or not the award of £70,000 could be justified as one that was not extravagantly beyond what the sheriff could properly have awarded. What is truly at issue, in our opinion, is not simply the fairness of the amount of the capital sum specified in the decree but the fairness and justice of the decree as a whole. The petitioner represented himself and it does not seem to have been appreciated by anyone else that there were other highly relevant matters to consider; but there were; and they have not been considered.

Relevant matters not properly considered

13. What the sheriff's interlocutor of 3 January 1996 ordered was not just that a capital sum of £70,000 be paid, but that it was to be paid "at this date", that interest should be payable at the rate of eight per cent per annum "from this date" and that the defender (petitioner) should be found liable in the taxed expenses of the whole proceedings, without any modification, despite the fact that he had been legally aided (see, by way of contrast, the sheriff principal's interlocutor of 5 October 1995). The requirement for immediate payment was plainly an extremely important consideration, given that the petitioner was known to the court to be a working farmer with a low income, cash flow problems, a substantial overdraft and health problems. According to the averments of the respondent (pursuer) in the Initial Writ, the property said to have a total value of £140,000 included the house in which the petitioner was living, some farmland and farm machinery allegedly worth £20,000. With the possible (but unlikely) exception of the house in which he resided, the matrimonial property was also the whole working capital, machinery and effects of the farming business which provided the petitioner with his only income. It was also averred that, "at the time of separation the farm business overdraft amounted to approximately £15,000". Even on the assumption that nothing material had changed by January 1996, it would have been evident on even the most superficial consideration that a decree pronounced in these terms would be likely to be extremely punitive for a working farmer, especially one in indifferent health, and would be quite likely to destroy his ability to earn a livelihood. The petitioner's capacity to pay £70,000 instantly, plus the liability to pay the unmodified expenses of the divorce proceedings (and the modified expenses awarded by the sheriff principal on 5 October 1995), in addition to the interest, accumulating at the rate of well over £100 per week during the period of months that would have been likely to elapse before he could sell the property and ingather the proceeds, was manifestly in doubt. It seems highly improbable that he could have borrowed that sum and there is nothing to indicate that there was a ready market for any of the assets constituting the matrimonial property. Prima facie the unfairness of pronouncing such a decree when regard is had to its cumulative effects is clear. That unfairness does not depend exclusively upon the quantification of the capital sum at £70,000, even although the Lord Ordinary himself recognised that "the respondent's figures [as to the value of the property on the open market] were, understandably enough, pitched at what may, in light of the evidence that I am about to discuss, be regarded as the top end of the scale..". The Lord Ordinary was careful not to characterise the sum of £70,000 as being reasonably accurate; all that he concluded was that the evidence that the respondent might have adduced at an undefended proof in January 1996 "represented an honest and reasonable attempt to arrive at a suitable figure and was capable of being accepted as such". The sum of £70,000 was exactly half of the respondent's valuation of the matrimonial property, before making any deduction for the overdraft of approximately £15,000. The Lord Ordinary speculated that the sheriff might have been able to award £70,000 rather than £62,500 by taking into account "other factors". He added that it was open to the sheriff to increase the sum from £62,500 to £70,000 "on the basis of the information that would have been contained in the respondent's affidavit and the application of the relevant statutory principles as explained in the authorities, particularly Wallis v Wallis". He was thus expressing the view that, if evidence had been offered to the sheriff, a 12% increase might have been justified. But there was nothing whatsoever in the averments in the Initial Writ to justify such an increase. All that was averred was that the respondent had given up work to look after the family and to assist with the running of the farm, thus suffering economic disadvantage, and that she was "entitled to a fair sharing of the matrimonial property as detailed above." Such - fairly standard - averments would not properly be prayed in aid to justify an unequal distribution. These are exactly the averments that a wife pursuer quite properly and routinely makes when she has become the homemaker after marrying and has thus enabled the husband to continue to be the breadwinner; the making and proof of such averments is seen as justifying an equal sharing of the matrimonial property even although the actual monies have been earned by the husband and the properties and assets are in his name or in the name of a firm or company in which he is the principal actor; in such circumstances, the equal distribution of the matrimonial property is, in the absence of other special circumstances, seen as fair. In this regard, we refer to the Opinion of Lord Osborne in Welsh v Welsh 1994 SLT 828 and, in particular, to the passage at page 835,

"I have come to the conclusion, in the light of the facts which I have found and of the foregoing arguments, that the net value of the matrimonial property available in this case should be shared equally between the parties. The pursuer's argument to a contrary effect was based upon the terms of s 9(1)(b), in association with the provisions of s 11(2) of the Act of 1985. While it is plain that the pursuer herself suffered an economic disadvantage in the interests of the defender and her children, insofar as she gave up quite well paid employment to look after her family, it appears to me to be equally plain that she enjoyed certain associated economic advantages in the same situation, in respect that she was subsequently maintained exclusively from the earnings of the defender during the period in which she had no employment. Furthermore, in the allocation of matrimonial property which I propose to make, she will enjoy the results of the mortgage payments made exclusively by the defender during the period of time in which she was not employed. It appears to me also that, in consequence of the pursuer giving up her paid employment, the defender himself sustained an economic disadvantage, in respect that he was thus rendered the sole breadwinner for the family, assuming the responsibility for maintaining, not only his children, but also the pursuer herself. In the whole circumstances I am unable to discern any significant imbalance in the situation of the parties in relation to economic advantages and disadvantages. In these circumstances I see no reason, based upon s 9(1)(b), to depart from an equal division"

We also refer to the similar treatment of a similar issue by Lord Gill in Adams v Adams 1997 SLT 144 at page 148. Furthermore, in our opinion, there was and is no logic whatsoever in raising the respondent's share by 12% and reducing the petitioner's share correspondingly. As we have already noted, only special circumstances would justify an unequal division of the net matrimonial property: Jacques v Jacques 1997 S.C. (H L) 20. It was also important to take note, for what it might be worth, of the liability of the petitioner to meet the substantial expenses awarded against him; that was bound to have some bearing upon his resources. It is impossible to escape the conclusion that the sum of £70,000 was, in the circumstances, excessive, even if the Lord Ordinary did not consider that it could be characterised as "extravagant". It is equally impossible to escape the conclusion that the sheriff on 3 January 1996 gave the relevant matters no real thought but, ignoring the need for evidence, just granted decree for the sum sued for.

14. However, we recognise that, approaching the matter in the way that the Lord Ordinary did, and in the light of the evidence that he heard, the awarding of the sum of £70,000, even though the amount was excessive, might not of itself be enough to justify reduction of the decree. If the petitioner had had reasonably ready access to £70,000 then, for the reasons that the Lord Ordinary gives, it would have been difficult to persuade the court that the mere fact that the sum should have been significantly lower was itself sufficient to demonstrate that the decree was unjust.
15. There are, however, many reported cases in which the courts have held that fairness demanded something over and above the making of an order for an equal distribution (or even an unequal distribution) of the matrimonial property where one party was, at the date of decree, heavily dependent upon continued possession and use of the property either for the sake of bringing up the children of the marriage or in order to carry on a business or to enable the property to be realised at a better value for all concerned, or for some similar practical reason: see Cunniff v Cunniff 1999 SLT 992. Reference may also be made to Thomson, Family Law in Scotland (4 edition) pp. 153 to 155. In such cases the court has frequently ordered that payment of the sum due be delayed or staged in order to do justice as between the parties. The power to delay until a future date the date on which actual payment becomes due, or to order payment by instalments, is contained in section 12 of the Act (quoted below).
16. In the present litigation, no consideration appears to have been given at any stage to the appropriateness and desirability of staging or delaying in whole or in part the payment by the petitioner to the respondent of the capital sum due, whatever its amount, so as to take account of the circumstances.
17. In our opinion, however, looking at the matter as a whole, the pronouncing of an interlocutor awarding that excessive sum for instant payment, taken along with the other important features of the interlocutor that have been mentioned, resulted in the respondent's obtaining an award that was manifestly unfair, in the light of the principles applicable to awards for financial provision under the 1985 Act. In so holding we have in mind the fact that the whole payment became due at once, that 8% interest was to run on any sum unpaid and that the petitioner was found liable in the unmodified expenses. In our view, the granting of a decree that was manifestly unfair amounted to a clear miscarriage of justice. There are, in our opinion, clear grounds on which the court could properly consider reduction of the impugned decree.

Competency

18. This court received no useful submissions on the matter of competency. The courts that have dealt with the case at earlier stages have not had to decide if, by means of the present petition proceedings, the petitioner would be entitled to the remedies that he seeks. The prayer of the petition invites the court: -

"{ONE} To suspend ad interim the said charge of £70,570.24p, served at the instance of the respondent on 8^th February 1996, {TWO} To suspend ad interim the decree at the instance of the respondent in her action against the petitioner [Court Ref. A120/94] of the sheriff of Grampian Highlands and Islands at Banff dated 3^rd and extracted 18^th January both dates January 1996, and {THREE} To suspend the said decree in favour of the petitioner (sic) dated 3^rd and extracted 18^th January 1996 to the extent of {2} and {3} here of; {FOURTH} to remit consideration of the capital sum due to be paid by the petitioner to the respondent to the Sheriff Court at Banff for consideration of new; {FIVE} To remit the question of expenses to the Sheriff Court at Banff for consideration of new; and {SIX} To interdict the respondent or anyone on her behalf from insisting further in the petition for sequestration of the petitioner [presently before the Sheriff of Grampian Highland and Islands at Banff [Court Ref. No. SQ/98B108/96]; to find the respondent liable to the petitioner in the expenses of this petition and any necessary procedure to follow here on; and to discern, or to do further other wise in the premises as to your Lordship's deem proper".

Precisely what this means is not entirely clear; but one thing is clear. An action for production and reduction of the decree which is sought to be impugned would be competent. Lord Eassie's decision, as the Extra Division made clear in paragraphs [7] and [8], was not a decision against the competency of such an action; it was a decision on the relevancy of the averments in the summons before him, which we do not have before us. As the Extra Division made equally clear, in relation to a sheriff court decree, "In modern times an action for reduction would, in the absence of special circumstances, be the usual mode of setting aside such a decree". There is little that we can add to the discussion of this matter in the Opinion of the Extra Division, paragraphs [10] and [11]; but we also note the decision in Ali v Ali 1999 SLT 943; and the final sentence of paragraph [25] of the Opinion of the Extra Division, "The form of any remedy will also, having regard to section 12(1) of the 1985 Act, require careful consideration...". That consideration must also take account of what it is that the petitioner is actually seeking, as narrated above, namely a reconsideration in the sheriff court at Banff of the amount of the capital sum. Whether or not it would be appropriate to grant permanent suspension of a sheriff court decree in a process begun and continued by petition for Suspension and Interdict is a difficult question; although we have little doubt that that would be competent in relation to certain types of decree: see the very full discussion of the relevant authorities in Parts 4 and 5 of Jamieson op. cit. However, the matter arises here in a new and unusual context, that of section 12 of the Act. The part of the decree that is impugned is contained in a decree of divorce, which is separable and which no one seeks to reduce.

Section 12 of the 1985 Act

19. Section 12 of the 1985 Act provides:

"Orders for payment of capital sum or transfer of property

12.-(1) An order under section 8(2) of this Act for payment of a capital sum or transfer of property may be made-

(a) on granting decree of divorce; or

(b) within such period as the court on granting decree of divorce may

specify.

(2) The court, on making an order referred to in subsection (1) above, may stipulate that it shall come into effect at a specified future date.

(3) The court, on making an order under section 8(2) of this Act for payment of a capital sum, may order that the capital sum shall be payable by instalments.

(4) Where an order referred to in subsection (1) above has been made, the court may, on an application by either party to the marriage on a material change of circumstances, vary the date or method of payment of the capital sum or the date of transfer of property."

Unless section 12 (1) (b) were to be invoked at the time of the granting of decree, the effect of subsection (1) must be that any order for payment of a capital sum has to be made at the time when the decree of divorce is pronounced. The other subsections provide that the coming into effect of the order may be delayed until a specified future date [subsection (2)] or that the court may order that the capital sum shall be payable by instalments [subsection (3)] and that the court has power, on a material change of circumstances, to vary the date or method of payment [subsection (4)]. None of these provisions enables the court to entertain proceedings to vary the amount of the capital sum ordered on the granting of the decree. There is no provision that enables the court to make an order under section 8(2) of the Act at any time other than the time of granting the decree of divorce.

20. In the absence of a competent appeal, there is simply no mechanism provided for reviewing the amount of the award of a capital sum. As we have observed, no one seeks reduction of the decree of divorce, and it is easy to envisage situations in which reduction of a decree of divorce would be unconscionable, for example if either party had remarried. We have not been addressed upon any considerations, equitable or otherwise, that bear upon this issue.
21. It follows that if the award of £70,000 made on 3 January 1996 were to be reduced, but the decree of divorce were not reduced, there would be no mechanism to enable the respondent to make a fresh claim for a capital sum. That would certainly result in injustice in the present case because it would deprive the respondent of her entitlement under the Act to an award of a capital sum, an award that, on the evidence that the Lord Ordinary heard, was likely to be of substantial value.

Reduction

22. In the circumstances, and on the basis of the material presently before us, it does not appear to us that it would be fair to grant reduction or permanent suspension of the decree for £70,000 We would not be prepared to grant reduction of the decree of divorce, because no party has asked us to do so. In any event, we have grave doubts about the competency of such a course, in the light of Rule of Court 49.30 and the decision in Ali v Ali, supra. The prayer of the petition is referred to. We are not persuaded that in this process we have any competence to remit to the sheriff court at Banff for the purposes specified in the prayer.
23. No doubt it was considerations of this kind that led the Lord Ordinary to say in paragraph [26] that had he decided that there was scope for interference he would have granted partial suspension of the sheriff's decree, leaving the respondent to enforce payment of the balance. He does not specify what sum would have replaced £70,000 or what he would have done about other parts of the decree incidental to the award of that sum. We have no basis in the evidence or otherwise for granting partial suspension in the manner that the Lord Ordinary contemplated. If it were competent to do what the Lord Ordinary had in mind, we should have to remit to him to determine, in the light of the evidence that he heard, and the matters discussed in this Opinion, what sum should replace the £70,000 contained in the decree, and also in what other respects (including interest and timing) the decree ought to be modified. This would mean that the Lord Ordinary would address the question of what the award should have been in the light of all the evidence that was placed before him. That, of course, was not the question that he sought to answer at the proof. At a purely practical level, that would appear to be the simplest, cheapest and most practical course to follow, given that the Lord Ordinary, unlike the sheriff at Banff, has actually heard the evidence. If the Lord Ordinary were able to determine these matters, it would be possible to consider suspending the decree for £70,000 etc. to the extent necessary to do justice as between the parties.

Possible solutions

24. We have had no submissions from parties in relation to the difficulties identified in the preceding paragraph. One possibility would be for the petitioner to seek a sist of the present proceedings for a very limited period to allow him to raise an action for production and reduction of the decree dated 3 January 1996. Another would be for the parties to seek a short opportunity to try to reach agreement on what the petitioner should now pay the respondent. As at present advised, the best course would appear to us to be to remit to the Lord Ordinary for the purposes indicated. However, there may be other possible courses of action. In the circumstances, we shall put the case out on the By Order roll for further submissions as to the course to be followed in the light of our decision on the matter of substance, namely that, contrary to the view arrived at by the Lord Ordinary, there are good grounds for reduction of the award, including parts of the decree incidental to the award of £70,000.

Delay

25. Lest it be thought that in continuing this case for a hearing on the By Order roll we are taking no account of the delays that have occurred in this litigation, we should refer to the procedural history of the case in the Court of Session as it appears from the interlocutor sheet. The petition was served in June 1996 and was sisted on the respondent's motion from 17 July 1996 until March 1997. After sundry procedure, including amendments by both parties, the Lord Ordinary dismissed the petition as incompetent on the respondent's motion on 28 May 1998. That interlocutor was recalled on 10 December 1998 when the case was remitted to the Lord Ordinary to proceed as accords. On 19 October 1999 the Lord Ordinary dismissed the petition as irrelevant. That interlocutor was recalled in turn on 30 January 2001 when a proof before answer was allowed. That proof resulted in the interlocutor of Lord Nimmo Smith dated 22 November 2001 with which this Opinion is principally concerned. It is thus clear that, although the petitioner must be held responsible for the first set of circumstances that resulted in the repelling of his defences, he can hardly be blamed for most of the delay that has occurred since January 1996. Thus in pronouncing an order that postpones a final decision we are not adding to any delay for which the petitioner is to blame.