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Cite as: [2004] ScotCS 170
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Reekie v Reekie [2004] ScotCS 170 (09 July 2004)
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OUTER HOUSE, COURT OF SESSION |
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A377/04
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OPINION OF R F MACDONALD QC (Sitting as a Temporary Judge) in the cause GAVIN RALSTON REEKIE Pursuer; against EILEEN BRIDGETTE LUNDBLAND or REEKIE Defender:
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Pursuer: Miss Hodge, Advocate; Macbeth Currie
Defender: Miss Wylie, Advocate; Balfour & Manson (for Blackadders, Dundee)
9 July 2004
Introduction
[1] The pursuer in this action is an 89 year old man who seeks a non-molestation interdict, exclusion order and associated orders against his 52 year old wife. The parties were married on 26 August 2002 and separated on Monday 17 May 2004, when the pursuer left the matrimonial home at 26 Forgan Drive, Drumoig, by Leuchars. The case first called before me on the motion roll on 1 June 2004, prior to the calling of the summons, on the motion of the pursuer for interim interdict in terms of conclusions 1, 4 and 5, for an interim exclusion order in terms of conclusion 2 and for warrant for summary ejection of the defender from the matrimonial home in terms of conclusion 3. On that date I granted only interim interdict in terms of conclusions 1 and 5 and continued the motion until Thursday 10 June 2004 in order to enable the pursuer to serve the summons on the defender and to give the necessary seven days intimation of the motion for the interim exclusion order. When the case called on Thursday 10 June 2004 the pursuer was represented by Miss Hodge, Advocate and the defender by Miss Wylie, Advocate. After I had heard submissions from Miss Hodge, it was submitted by Miss Wylie, under reference to the case of Armitage v Armitage 1993 SCLR 173, that I should continue the hearing of the motion in order that the solicitors for the defender could obtain the necessary affidavits. As the witnesses in question were resident in Fife, I continued the hearing of the motion until the following day, Friday 11 June 2004, when the necessary affidavits for the defender were produced and I heard full submissions from Miss Wylie and a reply from Miss Hodge.
Submissions for the pursuer
[2] Miss Hodge began by setting out the background under reference to a letter from the pursuer's doctor, Dr Ann Mitchell, dated 25 May 2004 which stated that the medical records showed that the pursuer suffered a cerebrovascular accident in 2000 which left him with left sided weakness and that he required a walking stick for support. It was further stated in that report that the pursuer had recently been assessed by physiotherapy and had been provided with a more supportive walking aid because of poor balance and a tendency to fall. Miss Hodge then went on to refer me to the terms of the pursuer's affidavit dated 28 May 2004. Reference was made to the account therein of the incident which occurred between the pursuer and the defender on Wednesday 12 May 2004. That incident began with an altercation between the parties in the course of a visit to the defender's mother in hospital in Cupar and which continued in the course of the car journey from the hospital to the house. Particular emphasis was laid by Miss Hodge on what was stated in paragraph 10, in which the pursuer narrated what happened once he got out of the car after their return home in the following terms:
"I got out of the car and although I had no stick I managed somehow to get about the 30 yards or so from the car to the house. I did not want to be trapped in the car again with Bridgette in the mood she was in. I managed to get into the house and got to my bedroom onto my bed. When Bridgette came back into the house I had the telephone in my room in my hand and was trying to call the police. She went absolutely mad again. She grabbed the phone and started beating me around the head and body with it repeatedly. I was only conscious of the fact that I didn't want to retaliate as, if I hurt her in any way, it would simply give her the ammunition to say that I had brought this on myself. I was hit mostly on the arms as I tried to defend myself and around the head. My throat was bruised and my mouth was bleeding by this point. She grabbed my left arm which is problematic after the stroke and was bending it back. I was screaming for her to stop this as it was extremely painful. She seemed to be completely and utterly out of control. At this point she was leaning over me on the bed. The telephone was actually smashed during this altercation. Bridgette also took away the security alarm that I wear round my neck which allows me to call for help. I later found it on the kitchen shelf."
[4] Miss Wylie then turned to consider the relevant law. She referred to the Matrimonial Homes (Family Protection) (Scotland) Act 1981, Sections 3(3) and 4(1), (2) and (6) and the decision of the Second Division in McCafferty v McCafferty 1986 SC 178 per the Lord Justice Clerk at page 182, Lord Robertson at pages 185-6 and Lord Dunpark at page 187. It was submitted that the present case was not a doubtful one and that there was prima facie evidence that there would be harm to the pursuer if an interim exclusion order were not granted. Reference was made to the four questions posed by Lord Dunpark in McCafferty at page 188. The evidence was that the pursuer was, as Miss Hodge put it, "clearly in a bit of a state" when seen by the Home Carer and the gardener. He was removed by his family from the adapted home in which he had lived for nine years and taken to a care home run by his daughter. He wished to return to his own home, but was scared of the defender and did not wish to live there with her. A non-molestation interdict was not sufficient. The information which Miss Wylie had was that the defender had changed the locks on the matrimonial home and had members of her own family living there with her. There was an attitude on the part of the defender that the pursuer would not get back into his own home. The defender owned a flat in St Andrews where she had spent some time. So far as a power of arrest was concerned, Miss Hodge referred me to Sections 4(4), 14 and 15 of the 1981 Act and submitted that there was nothing which suggested that a power of arrest was not necessary. She added that the defender had attempted to phone the pursuer at the nursing home. The pursuer was helpless by reason of his age and infirmity.
Submissions for the defender
[5] At the outset of her submissions Miss Wylie (as I have stated above) moved that the motion be continued in order that she could obtain the necessary affidavits and, having continued the hearing of the motion until the following day, I heard the submissions of Miss Wylie on Friday 11 June 2004. When I heard her submissions on that day I had before me the Inventory of Productions for the Defender, which consisted of affidavits of the defender, Bryan Grimes, Mavis Broadley and Barry Lawson, copy lease of the property at 16 Sandyhill Crescent, St Andrews dated 27 February 2004 and copy invoice from Torith Limited dated 21 May 2004. Miss Wylie stated that the locks on the matrimonial home had not been changed. So far as the affidavits were concerned, Miss Wylie referred to the decision in D v D 2002 SC 33 at page 37D, paragraph 8 and submitted that, where there were differences between the information in the pursuer's affidavits and that in the defender's affidavits, I could not conclude that one was right unless it was supported by further evidence. It was submitted that I had to look closely at the affidavits of each party and consider what facts could be taken from them. I could accept only evidence which was uncontradicted or consistent with other evidence. Miss Wylie then proceeded to examine the affidavits of both parties, particularly in relation to the events of Wednesday 12 May 2004. She pointed out that the pursuer did not mention that anything had happened on Friday 14 May 2004, whereas in paragraph 28 of her affidavit (which was not contradicted) the defender stated that the pursuer had informed her on that day that if she granted him a simplified and quick divorce he would not go to the police and report her. Moreover, in paragraph 31 of her affidavit the defender spoke to an attack upon her by the pursuer on Saturday 15 May 2004 when he struck her nose with his stick, cutting it and causing it to bleed and knocking her spectacles from her face. There was support for the pursuer's evidence about this incident in the affidavit of Barry Lawson, who stated that at approximately 12.45pm on Saturday 15 May 2004 he found the defender in the kitchen clasping a towel to the bridge of her nose and the iron, which appeared to be switched on, on the floor. Her glasses had been knocked off and the defender said to him "He's hit me". Miss Wylie pointed out that the pursuer had not in his affidavit mentioned anything about Saturday 15 May 2004.[6] Miss Wylie went on to state that the pursuer was living in a residential home owned by his daughter, where he was able to get the necessary care. The adaptations to his house were minimal, as confirmed in the affidavit of Bryan Grimes. The flat owned by the defender was leased, as evidenced by the copy lease produced. Miss Wylie also referred to the affidavit of Charles William Pagan, Writer to the Signet, dated 10 June 2004, which had been lodged by the pursuer. She said that, according to the defender, the relationship between the pursuer and Mr Pagan was not particularly good up until May and the pursuer was going to change solicitors. When the pursuer had seen Mr Pagan on 13 January 2004 (described in paragraph 4 of Mr Pagan's affidavit) he (the pursuer) had been ill and she had been concerned about him.
[7] Turning to consider the law, Miss Wylie accepted that test which I had to apply was that of necessity. As the pursuer was living in a nursing home, which she said was owned by himself and run by his daughter, and was receiving necessary care, it was not necessary for him to be in the matrimonial home. It was completely irrelevant that he was the entitled spouse in terms of the Act. I had to consider the conduct of the spouses in relation to each other. There was no evidence of a continuing episode of violence over days. The bruising which the pursuer received was caused by the telephone (see paragraphs 21-23 inclusive of the defender's affidavit of 11 June 2004). The pursuer had assaulted the pursuer with his stick on Saturday 15 May 2004. There had been a breakdown in the parties' relationship. The pursuer had been able to speak to his brother and son-in-law in the course of Friday 14 May 2004. On Sunday 16 May 2004 he had been able to speak to the gardener. There was no evidence before me of the resources of the parties, but, according to Miss Wylie, the pursuer was better off than the defender and she was dependent on him for finance. He had, and she did not have, alternative accommodation. Her step-father was very ill. The pursuer had not offered the defender any suitable accommodation. If he wished to exercise his legal right to return to the matrimonial home, I would not be justified in granting an interim exclusion order. The matrimonial home was the defender's home and she had nowhere else to go. The pursuer, according to Miss Wylie, had in the past considered moving to the nursing home in which he was now resident. Although the defender had formerly lived in the house in St Andrews, the grant of an interim exclusion order at this stage would render her homeless.
Response for the pursuer
[8] Miss Hodge accepted that, where there were unexplained and unresolved contradictions in the affidavits on a crucial fact, I could not find that fact to be proved, but she submitted that I could draw inferences from internal inconsistencies or omissions in the affidavits, while taking account of the fact that the timing of the affidavits could be an advantage or a disadvantage. There was, submitted Miss Hodge, no dispute about what she described as "the telephone incident" on Wednesday 12 May 2004. The defender's affidavit of 9 June 2004 did not contain what was now contained in paragraphs 22, 23 and 24 of her affidavit of 11 June 2004. Those paragraphs had been included only after she (Miss Hodge) had pointed out in the course of submissions the previous day that the defender had given no explanation for the pursuer's injuries. The evidence in the affidavits of Catherine Mitchell and the report from Dr Mitchell were consistent with what the pursuer asserted had happened. Even accepting what the defender stated in paragraph 23 of her affidavit of 11 June 2004, she had clearly used excessive force towards the pursuer. That the telephone handset was missing was corroborated by Catherine Mitchell. The fact that the pursuer was scared was confirmed by Catherine Mitchell and Bryan Grimes, who were objective third parties. Mr Pagan, the solicitor, stated in his affidavit that the defender had tried to prevent his having access to the pursuer on Monday 17 May 2004. There was a contradiction in the defender stating that the pursuer was not as disabled as he maintained and at the same time stating that he was much better off in the nursing home. It was most unlikely that he would have expressed a desire to move to the nursing home. He was living on his own in a twin-bedded room and paying £455 per week for it. The tenant in the flat in St Andrews owned by the defender was a friend of the defender and the arrangement for the lease of the flat was not an entirely commercial one. So far as alternative accommodation for the defender was concerned, she had the remedy of interim aliment if necessary. The allegation about the assault by the pursuer upon the defender on Saturday 15 May 2004 had first been mentioned the previous day, 10 June 2004, and it had not been possible for the pursuer's solicitors to take instructions from the pursuer about that allegation. Miss Wylie concluded by submitting that the pursuer was an elderly gentleman whose trust in the defender had been shattered by the assault by her upon him on Wednesday 12 May 2004 and that nothing that had been said on her behalf made an exclusion order unjustified or unreasonable in the circumstances.
Decision
[9] Having heard the above submissions, I retired from the bench to consider them. When I returned to court I gave the following decision:
"Having considered the submissions, the affidavits and the other productions placed before me, I have reached the conclusion that the statutory test for the making of an exclusion order against the defender has been satisfied. I refer to Section 4(2)(3) and (6) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981. In my judgment the making of such an order is necessary for the protection of the pursuer from any conduct or threatened or reasonably apprehended conduct of the defender which is or would be injurious to the physical or mental health of the pursuer.
The real basis of the application is an incident which occurred between the parties in the pursuer's bedroom following an altercation between them after an outing to visit the defender's mother in hospital on Wednesday 12 May 2004. There is a dispute in the affidavit evidence about what happened between them when they were out. I do not think it is necessary for me to make any findings about precisely what happened other than to say that they argued and at the end of the journey the pursuer could not get out of the car as he could not open it, whatever the reason for that situation coming about may have been.
The pursuer's account of what happened in the bedroom is set out in paragraph 10 of his affidavit. The important sentence reads: 'She grabbed the phone and started beating me about the head and body with it". The defender's account is set out in paragraphs 22 and 23 of her affidavit of 11 June 2004, in which she admits that she went to take the phone from him to prevent him calling the police and that a struggle then ensued between them in the course of which his chin and lip were injured in what she describes as 'a complete accident'. The affidavit of the pursuer's carer Catherine Mitchell describes the situation she encountered on arriving at the house on Thursday 13 May. The telephone handset in the pursuer's bedroom was, she says, missing and his wrist watch broken. On Sunday 16 May the gardener Bryan Grimes came to the house and described the pursuer as being 'clearly distressed and in a terrible state'. Most important of all, in my opinion, is the report of 25 May 2004 from Dr Ann Mitchell narrating the pursuer's injuries when she examined him on Monday 17 May 2004. She states that on examination he had injuries which would be fully consistent with his allegations. Some insight into the behaviour of the defender can also be derived from the affidavit of Mr Charles Pagan, solicitor, dated 10 June 2004.
I am satisfied, on the basis of the above material, that on Wednesday 12 May 2004 the defender, quite unjustifiably, sought to wrench the telephone from the pursuer when he was making a telephone call and inflicted upon him most, if not all, of the injuries described in Dr Mitchell's report. I am therefore satisfied under Section 4(2).
I must also consider Section 4(3). I do not consider that the making of an exclusion order would be unreasonable or unjustified having regard to the matters specified in paragraphs (a)-(e) of Section 3(3). There is some evidence from the defender and a Mr Lawson that the pursuer assaulted her on Saturday 15 May. The pursuer's solicitors did not have time to take instructions on this allegation, which is therefore uncontradicted. Even if this is true, I would not consider that in all the circumstances an exclusion order would be unjustified or unreasonable. It was the incident in the bedroom on Wednesday 12 May which gave rise to all the trouble, and it was the defender who was responsible for that.
I shall therefore
(1) attach a power of arrest to the interim interdicts granted on 1 June 2004;
(2) grant an interim exclusion order suspending the occupancy rights of the defender in the matrimonial home at 26 Forgan Drive, Drumoig, by Leuchars, KY16 0BE;
(3) grant warrant for the summary ejection of the defender from the matrimonial home;
and
(4) grant interim interdict against the defender from entering the matrimonial home without the express permission of the pursuer, and attach a power of arrest to that interdict."