Scottish Court of Session Decisions

Sullivan v. Sullivan [2003] ScotCS 79 (20 March 2003)

OUTER HOUSE, COURT OF SESSION
A3750/01	OPINION OF LORD EMSLIE in the cause PATRICK JOSEPH SULLIVAN Pursuer; against MRS SHIRLEY ANN McCANN SULLIVAN (AP) Defender:   ________________

 

 

Pursuer: Kinloch; Balfour & Manson

Defender: J.A. Brown; Aitken Nairn, W.S.

20 March 2003

1. In this action, the pursuer seeks reduction of the undefended decree of divorce pronounced against him, along with certain ancillary orders, at Glasgow Sheriff Court on 6 March 2000. Failing reduction of that decree in its entirety, the pursuer seeks partial reduction quoad the award of periodical allowance only. On Record interdict is also sought against any move by the present defender to implement that part of the decree which relates to the transfer of the pursuer's interest in a life policy, but no interim relief was ever applied for and, for reasons which will become clear, this is no longer a live issue.
2. The present action was raised on 27 June 2001, and after sundry procedure I heard a proof before answer on the parties' averments on 7 January 2003 and subsequent days. I then heard further submissions on behalf of the parties on 28 February 2003. In the course of the proof, I heard evidence from the pursuer and defender in person, and from three solicitors who acted for one or other of them at different times. It soon became clear that the relevant facts were, to a material extent, common ground. The pursuer, however, maintained that in the whole circumstances the legal requirements for reduction of the decree, in whole or in part, had been sufficiently met, and that I should exercise my discretion in his favour. The defender, on the other hand, contended that there were no circumstances justifying reduction of the decree, and that it should therefore not be disturbed.
3. The pursuer and defender were married at Glasgow on 26 June 1982. There were two children of the marriage, born in 1984 and 1988 respectively. Relations between the parties deteriorated, and they eventually separated in or about November 1998. At that point, the pursuer moved south to live and work in Rugby, although he regularly travelled back to Glasgow and, for a while, remained in relatively amicable contact with the defender and the children. As regards the general sequence of events which took place between 1998 and 2001, the parties are in agreement (i) that negotiations concerning financial matters and the welfare of the children took place between them from January 1998 onwards; (ii) that in March 1999 the present defender was granted legal aid to pursue an action of divorce including financial and other craves; (iii) that such an action was eventually raised on 12 June 1999, the Initial Writ being served personally on the present pursuer by English process servers on that date; (iv) that the present pursuer and his solicitors took no steps at any stage to lodge a notice of intention to defend, or otherwise to contest the action; (v) that in about February 2000, having lost patience with lack of progress in the negotiations, the present defender's solicitors formally moved the Sheriff to pronounce decree in the action in restricted terms; (vi) that decree of divorce, with ancillary orders, was granted by the Sheriff on an undefended basis on 6 March 2000; (vii) that on or about 31 March 2000, after the appeal days had elapsed, the decree was extracted and served on the present pursuer; (viii) that although the present pursuer consulted his solicitors in Rugby shortly thereafter, and received advice that following this new development he must now instruct Scottish solicitors to act on his behalf, he did not in fact do so until 26 October 2000; and (ix) that a further eight months went by before the present action of reduction was raised at the end of June 2001.
4. In the course of submissions at the end of the proof, counsel for the pursuer very fairly conceded that the whole of the foregoing chronology was relevant and important as part of the facts and circumstances to be considered by the court in the context of the claim for reduction. At the same time he purported to make a further concession to the effect that, by virtue of the six-month time-limit prescribed by Rule 7.5 of the Sheriff Court Ordinary Cause Rules 1993, the long delay in raising the present action had had the effect of turning what was originally a decree in absence into a final decree in foro and, as such, less readily susceptible to the remedy of reduction. However, during the further hearing on 28 February 2003, that purported concession was (in my view rightly) withdrawn because, in terms of Rule 7.1 of the 1993 Rules the application of Chapter 7 is restricted to "any cause other than an action in which the sheriff may not grant decree without evidence". To his credit, counsel for the defender did not seek to oppose the withdrawal of the concession.
5. For the purposes of this action, the salient ancillary features of the divorce decree pronounced on 6 March 2000 were (2) an order for the transfer of the present pursuer's one-half interest in a specified life policy in favour of the present defender; (3) an award of periodical allowance of £75 per week, payable until the remarriage or death of the present defender; and (4) the award of a capital sum of £6,575 with relative interest from the date of decree. As I understand it, these were the aspects of the decree which the present pursuer really wished the court to set aside, although as already indicated his primary position was that reduction of the whole decree would be necessary to enable justice to be done between the parties. The matter of the life policy is now academic because, as the parties both accepted in evidence before me, the policy in question had in fact been cashed in prior to the decree, with the proceeds being used to pay off matrimonial debts. That part of the decree, pronounced per incuriam, was accordingly worthless to the present defender and represented no prejudice to the present pursuer. My attention was therefore exclusively directed to the awards of capital sum and periodical allowance, the present pursuer contending that on a true view of the facts and law neither award had been warranted and that this material injustice now required to be rectified. Counsel stressed that no appeal had ever been open to his client because he and his former solicitors had remained wholly unaware of the decree throughout the appeal days, and indeed until service of the extract decree was effected at the end of March 2000. Furthermore, variation of the capital award was not competent, and the award of periodical allowance could not be varied either where the Sheriff had merely proceeded on inadequate or erroneous information. In counsel's submission, therefore, reduction was the only remedy now available to the present pursuer, and there was nothing in the history of events which should persuade the Court to exercise its discretion in favour of withholding that remedy.
6. The main issues canvassed before me were thus (i) whether, on a true view of the relevant facts and law, the financial aspects of the divorce decree should be seen as constituting a substantial injustice; and (ii) whether the conduct of the present pursuer and his solicitors in 1999 and 2000 was or was not open to serious criticism. In this context, the legal principles to be applied were, as I understood it, a matter of broad agreement between the parties, and may conveniently be summarised as follows:

(1) Reduction of the decree of an inferior court is a remedy to be exercised sparingly, and with caution, particularly where the decree is one affecting status: Adair v Colville & Sons Ltd 1926 S.C. (H.L.) 51, sp. Viscount Dunedin at 55-6; Gehlan v Saeed 1987 S.C.L.R. 668; Robertson's Exor. v Robertson 1995 S.C. 23; Leaper v Leaper 1998 S.L.T. 659.

(2) A court decree is not ordinarily susceptible to reduction where other competent remedies are available and have not been exhausted: Adair, supra.

(3) The remedy of reduction will not normally be granted to relieve a party of his own individual failures or the failures of agents for whose acts and omissions he must bear responsibility: Stewart v Lothians Construction (Edinburgh) Ltd 1972 S.L.T. notes 75; Gehlan, supra; Halliday v Pattison 1988 S.L.T. 235; Kirkwood v Glasgow District Council 1988 S.L.T. 430; Shaw v Performing Rights Society (Lord Menzies, unreported, 9 July 2002).

(4) In the case of a decree in foro, reduction may be entertained only in exceptional circumstances going beyond a mere challenge to the decree on its merits. There are no hard and fast rules as to what may constitute exceptional circumstances, each case requiring to be assessed on its own particular facts and circumstances: Adair, supra; Philp v Reid 1927 S.C. 224; Kirkwood, supra.

(5) By contrast, reduction of a decree in absence is not subject to the "exceptional circumstances" test, the Court simply having to exercise its discretion on a consideration of the whole relevant facts and circumstances. "Exceptional circumstances" will of course still be open as a ground of action, but a decree in absence may also be reduced where the Court is satisfied that, on a true view of the relevant facts and law, the decree complained of ought not to have been granted; Robertson's Exor., supra; Nunn v Nunn 1997 S.L.T. 182; Leaper, supra.

(6) For the purposes of reduction, an undefended decree of divorce falls to be classified as a decree in absence notwithstanding (i) the necessity for the Court to consider oral or affidavit evidence, and (ii) the disapplication in such cases (by Rules 7.1 and 8.1) of those Chapters of the Sheriff Court Ordinary Cause Rules 1993 which deal with decrees in absence and with the remedy of reponing. This rule has been well settled, and consistently applied, for more than a century, as illustrated by the cases of Stewart v Stewart 1863 1M. 449; Graham v Graham 1881 9R. 327; Walker v Walker 1911 S.C. 163; Cunningham v Cunningham 1928 S.C. 790; Bald v Bald 1938 S.N. 3; Paterson v Paterson 1958 S.C. 141; Campbell v Campbell 1983 S.L.T. 530; and Nunn, supra. The rule is also clearly stated in Fraser, Husband and Wife, 2^nd ed., vol. 2, p.1238; Maclaren, Court of Session Practice, p.711; and Clive, Husband and Wife, 4^th ed., para.27-085.

(7) Whether in absence or in foro, reduction of a decree will not normally be granted unless the Court is satisfied that any re-hearing would be likely to produce a materially different outcome. In other words, in the absence of some complaint of substance regarding the merits of the decision, a pursuer may be unable to demonstrate any legitimate interest in having it reduced: Robertson's Exor., supra.

7. In my opinion all of the foregoing propositions advanced by counsel are well-founded, and are consistent with the authorities cited. As regards the sixth proposition in particular, I have no hesitation in accepting that for present purposes the test for a decree in absence is practical and straightforward, depending simply on the defender's non-appearance and not on the application or disapplication of technical Rules of Court. If that were not so, as it seems to me, an undefended decree of divorce would be stranded in no man's land, qualifying neither as a decree in absence nor as a decree in foro, and it is hard to see what grounds for reduction would then apply. Reassuringly, for more than a century, the courts have given no credence to such a possibility.
8. If there was an element of dispute between the parties as to the applicable law, it concerned the approach to be taken, in a given case, to the assessment of its individual facts and circumstances, and the level at which such facts and circumstances might fall to be regarded as "exceptional". In this context, counsel for the pursuer founded on cases such as J & C Black Ltd v Alltransport Ltd 1980 S.C. 57 and Johnstone & Clark (Engineers) Ltd v Lockhart 1995 S.L.T. 440, where what might be described as a benign approach had been taken. In Black, for example, indulgence had been shown towards a pursuer whose ignorance of the granting of a decree led to the loss of any possibility of appeal. Counsel for the defender, on the other hand, urged me to follow the more traditional strict approach illustrated by the cases listed relative to the third proposition in paragraph [6] above. In these cases, the Court took the view that where a party and his agents were ignorant of a decree through their own fault, the lapse of the appeal days without appropriate action would be an almost inevitable consequence and could not sensibly amount to a ground for reduction.
9. Against that background, I now turn to consider the central issues in this case in more detail, beginning with the sequence of events in 1999 and 2000 which culminated in the divorce decree passing against the present pursuer. As previously indicated, the Initial Writ in that action was personally served on the present pursuer at an address in Rugby on 12 June 1999. By that time Brethertons, a firm of solicitors in Rugby, were acting for him in the negotiations with his wife. According to the pursuer, he might have reported receiving the Writ to Miss Linda Jones, the solicitor dealing with his case, by telephone about a week later, but he could not be sure of this. More particularly, he claimed to recall leaving the Writ for Miss Jones' attention within a period of perhaps 6-10 weeks of the date of service, and thereafter discussing its validity and contents with her at a meeting. In the course of his evidence, he sought to attribute the long delay before passing on the Writ to (i) his being busy with trips up and down to Glasgow; and (ii) his having formed the view, as a layman, that the Writ was probably invalid because the accompanying notice (Form 26) referred to a date of service in the first half of May, and to the expiry of a notice period on 3 June, both dates preceding the actual date when service was effected.
10. When he saw Miss Jones on 17 November 1999, however, the pursuer is recorded as having told her that he had received the divorce papers "one month later", and in evidence he sought to explain this by reference to the fact that the Writ bore a Sheriff Court date stamp "7 May 1999". Miss Jones, on the other hand, supported by the contents of her own file, maintained that she had no knowledge of the raising of the divorce action until 5 October 1999 at the earliest, and had no recollection of ever seeing the Writ or discussing its validity or contents with the pursuer. According to her, at the time when the pursuer mentioned receiving divorce papers "one month later", his explanation was that this had occurred due to their having lain unattended for that period following service at the wrong address. While Miss Jones conceded that she could not altogether exclude the possibility of having at some stage received a copy of the Writ from the pursuer, she thought that its terms would have been likely to ring alarm bells with her and to cause her to act differently. Perhaps significantly, her professional file was lodged by the pursuer as No.6/4 of Process, whereas the Writ and relative Forms were lodged separately as Production 6/5.
11. Mr Robert McKinnon, the Paisley solicitor whom the pursuer consulted in October 2000, was unable to say positively whether the Initial Writ and relative Forms were either (i) contained in Brethertons' file when he recovered it in late 2000, or (ii) among certain additional papers delivered to his office by the pursuer's mother; or (iii) obtained from Mr McCartney, the defender's solicitor, on request following a telephone call that he thought he recalled. Mr McCartney, for his part, agreed that the relevant Forms in Production 6/5 were clearly copies of those which had been used in connection with a failed attempt at postal service in May 1999. This could be inferred from the dates which appeared on the face of Form 26, and from the annotation on Form 15, in the Sheriff Clerk's handwriting, to the effect that the Writ and accompanying Forms had been returned. In the normal course of events, the unserved papers would have been returned to Mr McCartney as the solicitor concerned. In the witness box, somewhat surprisingly, Mr McCartney was unable to confirm whether, on instructing the English process servers, he would have sent them fresh Forms 15 and 26 bearing appropriate dates for a June re-service, or whether he would simply have sent them copies of the unserved May Forms bearing the wrong dates and annotated as having been returned to the Sheriff Clerk. At one point in his evidence, he said that he thought that he would have prepared fresh Forms at this point, but he then reverted to saying that he might have supplied the old ones instead. There was no suggestion, however, that the English process servers had queried any inappropriate dates or markings on the forms so supplied, and in the whole circumstances I am not prepared to hold, on the balance of probabilities, that Mr McCartney and the process servers were so careless as to proceed with the wrong Forms in June 1999, particularly in circumstances where a ready alternative explanation exists as to how these copy documents came into the hands of Mr McKinnon in late 2000 without their having being in Brethertons' file or among the loose papers which accompanied it. I therefore reject the pursuer's suggestion that the Writ served on him on 12 June 1999 was accompanied by the wrong copy Forms now appearing in Production 6/5.
12. More generally, I have to say that I was not impressed with the pursuer as a witness, and formed an adverse view of his credibility and reliability at various points during his evidence. In particular, I found his variable explanations for the long delay in advising Miss Jones of the Initial Writ entirely unconvincing. Several different versions were advanced in the course of his evidence. He was unable to explain how yet another version appeared on Record at page 7D-E. And his evidence was, in large measure, contradicted by Miss Jones who had the assistance of her own contemporaneous file entries. In my view the pursuer's attempt, as a layman, to blame the wrong dates on Form 26 in Production 6/5 - a matter which had never been raised in the pleadings, or anywhere else, before the document was shown to him in the witness box - came across as mere opportunism on his part in seeking to justify a period of delay that he knew might be prejudicial to his case. Similarly, I am not prepared to accept the pursuer's unsupported evidence, contradicted by Miss Jones, of (i) having delivered the Writ to Miss Jones at all or (ii) having done so, or even mentioned its existence, in advance of the recorded meeting on 17 November 1999. In all areas in which the pursuer's evidence conflicted with that of Miss Jones, I have no hesitation in preferring the latter.
13. The matter does not, of course, end there, because even if the Writ itself never reached Miss Jones there is no doubt that, by 5 October 1999 at the latest, she was made aware by Mr McCartney in correspondence that personal service of the Writ had been effected on 12 June 1999 and that the divorce action was now proceeding. The relevant decree was not granted until some five months later, and in her evidence Miss Jones accepted, with disarming frankness, that she should have taken appropriate steps to instruct Scottish solicitors to defend the pursuer's interests, but failed to do so. There were, she said, two reasons for this failure, the main one being that, as a recently qualified English solicitor, she erroneously thought that Scottish divorce procedure would be the same as English, and that separate proceedings on financial matters would come after the divorce itself. In other words, she did not appreciate that the pursuer faced an undefended decree covering divorce and all ancillary claims simultaneously, and thus did not appreciate the need for urgent protective steps to be taken. In the second place, as she pointed out to Mr McCartney in correspondence, she believed that the parties had concluded a binding agreement on financial matters in their letters of 19 August 1999 and 14 September 1999. This belief also led her to underestimate the gravity of the situation.
14. On these matters, I have no difficulty in accepting Miss Jones as a credible and reliable witness, with the result that responsibility for the five-month period of inaction between October 1999 and March 2000 must in my view be laid at her door. On the evidence before me, however, I do not accept that a binding agreement on financial matters was ever reached between the parties. To begin with, the letter of 14 September 1999 was a conditional acceptance of the proposal of 19 August 1999, and there was no evidence that the relevant qualification (concession of responsibility for payment of future premiums on a life policy) was ever accepted by or on behalf of the present defender. In addition, the proposal regarding the house and mortgage being transferred in to the sole name of the present pursuer met with opposition from the lending bank when he became unemployed, and accordingly became impossible of fulfilment. The alternative of re-mortgaging the property was subsequently explored in correspondence, but nothing came of it. For these reasons, I am unable to hold that a binding agreement on financial matters was ever concluded between the parties as Miss Jones maintained.
15. In the foregoing circumstances, I am satisfied that responsibility for the whole of the period of inaction between 12 June 1999 and the date of the decree must be laid at the door of the present pursuer (as regards the first few months) and of his solicitors (as regards the remainder). As regards subsequent events, counsel for the pursuer laid stress on the fact that the fourteen-day appeal period had already expired by the time the extract decree was received by his client at the end of March 2000. Until then, the pursuer and his solicitors were completely unaware of the existence of the decree, and in his submission it would be inequitable for the pursuer to be deprived of the only other means of challenging the decree, namely an action of reduction. However, like Lord Menzies in the recent case of Shaw, I am not impressed by this argument, for the simple reason that the pursuer's ignorance of the decree, and of the running of the appeal days, was entirely brought about by his own fault and by that of his former solicitors. In addition, I consider that the pursuer's continuing inaction, over a period of many months, after learning of the decree cannot be laid at anyone's door but his own. In my opinion, therefore, there are no exceptional circumstances, extraneous to the merits of the decree itself, which could reasonably be thought to warrant an order for reduction in this case. As previously noted, the pursuer in such an action cannot relevantly found on his own culpable omissions or those of agents for whose conduct he is responsible, and I am unable to see any reason why this rule should not apply in the present case.
16. Against that background, I turn to consider whether there is anything in the divorce decree itself, or in the circumstances in which it was granted, to provide the pursuer with a relevant and sufficient ground for reduction. Counsel for the pursuer invited me to hold that, on a true view of the relevant facts and law, neither the capital sum nor the periodical allowance should have been awarded. This was, he said, not only a state of affairs sufficient to give his client a real interest to pursue the present action, but also a valid ground on which decree of reduction might properly be founded. He conceded, however, that the order for transfer of the life policy to the present defender could be left out of account on account of the policy having previously been cashed in to meet matrimonial debts.
17. So far as the capital sum is concerned, counsel argued that it was far too high because (a) the house had been wrongly valued at £40,000 in the present defender's affidavit, having been sold eight months later for only £34,000; (b) no account had been taken of the pursuer's pre-sale expenditure on the property, allegedly to rectify vandalism by the present defender; (c) the mortgage had been understated at £32,000, having reached £34,000 by the date of the sale; (d) that the value of the parties' joint pension should have been discounted to reflect the fact that it had been derived from pension funds belong to the present pursuer before the marriage; (e) the sum at credit of the parties' joint bank account had been left out of the reckoning altogether; and (f) no account had been taken of the fact that the present defender had been left with furniture and a car, both of which had a certain value. For the defender, it was contended that the valuations were all reasonable at the date when her affidavit was signed; that any omissions would have tended to favour the present pursuer; and that the latter's assertions on the source of pension funds, on alleged vandalism, and concerning furniture and a car, should not be believed.
18. On the evidence before me, I reject the pursuer's contentions on the matter of the capital sum. There was admittedly no professional valuation of the house, but the present defender's figure of £40,000 did not seem inappropriate at the time to her solicitor Mr McCartney, who was familiar with market conditions in the area. Significantly, in discussions with his own solicitor in 1999 the pursuer advanced a valuation of £42,000. Similarly, in my view, the level of the mortgage in early 2000 was reasonably estimated at £32,000, there being evidence to indicate that the further arrears founded on by the pursuer were built up during the course of that year prior to the sale of the house. On the matter of pension, I was faced with the pursuer's claim that his own pension before the marriage had been the initial source of some of the funds, and the defender's recollection to the opposite effect. I was also faced with conflicting claims regarding vandalism, expenditure on the house, and the possession of furniture and a car. In the absence of satisfactory vouching or corroboration, I am not prepared to accept the pursuer's evidence on any of these matters, having formed an adverse view of his credibility and reliability as a witness. Moreover, as regards the bank account, there was no documentary vouching of any credit balance as at March 2000, and in any event I have difficulty in seeing how any omission to consider such a credit balance could have been prejudicial to the present pursuer in the context of the award of a capital sum of divorce. If, ex hypothesi, the value of the house had been overstated, this would in my view have been counteracted by the omission to refer to other assets such as the bank account. In all the circumstances, I reject the contention that the financial evidence placed before the Sheriff in March 2000 was materially inaccurate, and hold that on a true view of the relevant facts and law it was open to the Sheriff to make the capital award of which the pursuer now complains.
19. The award of periodical allowance seems to me to present rather greater difficulty. By virtue of sections 8, 9 and 13 of the Family Law (Scotland) Act 1985 Parliament provided for a "clean break" presumption to operate on divorce, with any continuing income provision having to be justified by reference to one or more of the principles in section 9(1)(c), (d) or (e), and in addition being prima facie limited to a period of three years unless otherwise specially justified. Here, however, the present defender craved a periodical allowance of £75 per week until her remarriage or death; her affidavit referred to a period of "three years.... or such other period as the court may decide"; and the Sheriff proceeded to award a periodical allowance until her remarriage or death in terms of the crave. The affidavit put forward no special reasons to justify a long-term award of that kind, and counsel for the present defender very fairly accepted that in the event of this matter being considered afresh by a different Sheriff it was "highly improbable" that a periodical allowance of more than limited duration would be awarded. He contended, however, by reference to the crave and affidavit, that the Sheriff's award technically fell within their scope, and that on any view some continuing income provision was warranted having regard to (a) the present defender's responsibility for looking after the children of the marriage; (b) the significant disparity between the parties' respective earnings; (c) the duration of the marriage; (d) the degree to which the present defender depended on her accustomed level of support; (e) the modest level of the capital sum awarded; (f) the modest level of the periodical allowance sought; and (g) the fact that (albeit in the context of a limited Provision) £75 per week was the sum proposed on the present defender's behalf in August 1999 and apparently found acceptable by the pursuer at that time. In the result, it was said, the present pursuer could only advance the limited contention that the Sheriff had awarded a periodical allowance for a longer period than he might have done.
20. In my opinion, while the matter is quite finely balanced, the pursuer has failed to demonstrate that, on a true view of the relevant facts and law, the periodical allowance of £75 per week until the remarriage or death of the present defender ought not to have been awarded. The capital sum payable to the present defender was modest. The discrepancy in earning power between the parties was considerable. The present defender also had the burden of looking after the two children of the marriage. In such circumstances, it was in my view open to the Sheriff to conclude that there was a continuing dependency here which could not adequately be satisfied by means of a capital award alone, and that in order to avoid hardship a continuing periodical allowance at the specified rate would be justified. Arguably, another Sheriff might have adopted a different approach in the circumstances, but that is not the test. The question is whether the award ought not to have been made, in the sense that no reasonable Sheriff could properly have made it in the circumstances, and for the reasons given I am not persuaded that that question falls to be answered in favour of the present pursuer.
21. I therefore hold that the pursuer has failed to establish any relevant ground for reducing the undefended decree of divorce pronounced against him on 6 March 2000. I am fortified in that conclusion by a number of additional factors as follows:

(1) As previously noted, a decree of divorce is one affecting status, and as such should not lightly be disturbed. As it happens, the present defender has not sought to remarry since March 2000, but both parties will inevitably have adjusted to their divorced status in a variety of ways over the intervening period. It would be inconvenient, to say the least, if their marriage were to be reinstated, even temporarily, except upon compelling grounds.

(2) Notwithstanding the substantial delays prior to March 2000 for which I have held the pursuer and his former solicitors responsible, it took some seven months before the pursuer consulted Scottish solicitors about the divorce decree, and another eight months before the present action was raised. This astonishing lack of urgency is a further reason why I am not disposed to exercise an important, and potentially far-reaching, discretion in the pursuer's favour.

(3) If the pursuer had had any tenable ground for reducing the decree, it would in my view have arisen in connection with the award of periodical allowance alone. Reduction of the whole decree, however, would expose the present defender, not merely to reassessment of her periodical allowance, but potentially also to diminution or loss of her capital award. That is an outcome which I would be extremely reluctant to facilitate, particularly where the pursuer has a statutory right to have the periodical allowance reviewed by the Court on the ground of any material change of circumstances. While I did not think that his failure to explore that possibility rendered the present action incompetent, I do regard the availability of this statutory entitlement as a powerful reason why the Court should be slow to permit reduction of the whole decree by reference to the award of periodical allowance alone.

(4) I also take into account, although without much enthusiasm, the possibility that the present pursuer may have an alternative remedy against his former solicitors. Difficult questions of causation and quantum would be likely to arise in that context, but for present purposes I think that it would be wrong to ignore the possible existence of an alternative remedy altogether.

22. Even if I had held that the periodical allowance ought not to have been awarded, I would not have regarded a partial reduction of the decree as appropriate in the circumstances. Failing reduction of the divorce decree at the same time, section 13 of the Family Law (Scotland) Act 1985 would appear to preclude a fresh award of periodical allowance, and in any event I am not persuaded that the periodical allowance awarded is truly severable from the other financial awards made by the Sheriff.
23. For all of these reasons, I shall repel the pleas-in-law for the pursuer and grant decree of absolvitor.