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Syed v. Ahmed [2005] ScotCS CSIH_72 (13 October 2005)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Hamilton

Lord Macfadyen

Lord Johnston

[2005CSIH72]

A3001/00

OPINION OF THE COURT

delivered by LORD HAMILTON

RECLAIMING MOTION

in the cause

MASROOR AHMED SYED, otherwise named as SYED MASROOR AHMED

Pursuer and Respondent;

against

SAMRANA AHMED

Defender and Reclaimer:

_______

Act: J.M. Scott; Balfour & Manson (Pursuer and Respondent)

Alt: J.J. Mitchell, Q.C., Muqit; Brodies (Defender and Reclaimer)

13 October 2005

The background
[1] On 19 November 1979 the pursuer and respondent was married in Pakistan to the defender and reclaimer. It was an arranged marriage. Although they are now divorced and issues have been raised as to their matrimonial status at certain times, we shall, for convenience only, refer to them in this Opinion as "the husband" and "the wife" respectively.

[2] At the time of their marriage both parties were nationals of Pakistan. They remain so. From 1981 they lived for several years in the United Kingdom. Each of them is a qualified medical practitioner and held, at certain times, medical posts in this country. Two children were born of the marriage.

[3] The marriage was unhappy. The parties finally separated in November 1988. Some months thereafter the husband returned to Pakistan where, on or about 2 May 1989, he pronounced divorce by talaq.

[4] The Lord Ordinary in the present action held, the issues being contested before him, that by 3 August 1989 (following the expiry of the 90 day period of Iddat) the parties were effectively divorced under Pakistani law and that, regard being had inter alia to sections 45, 46(1), 51(3) and 54(1) of the Family Law Act 1986, this court should recognise the validity of the Pakistani divorce. Neither of these conclusions is now contested by the wife.

The issue for determination
[5] The issue now for determination concerns the proper approach to a decree in foro pronounced in a divorce action raised by the wife in the Court of Session in the latter part of 1989. That action was initially defended by the husband on various grounds; but he ultimately did not insist in his defences and the action thereafter proceeded as undefended. On 11 May 1994 the Lord Ordinary in that process, having heard evidence, pronounced decree of divorce, awarded custody of the children of the marriage to the wife and made certain orders for financial provision. These included an order that the husband pay to the wife a capital sum of £65,000. The Lord Ordinary also found the husband liable to the wife in the expenses of that action. Decree was extracted on 1 June 1994. In the present action the husband seeks reduction of that decree, except in so far as it awarded to the wife custody of the children (who are both now over the age of 16 years) and made financial provision for their maintenance.

[6] The Lord Ordinary has pronounced, after proof, decree of reduction as sought. Against that disposal the wife has reclaimed. Properly to understand the Lord Ordinary's reasoning it is necessary, in the first place, to explain the procedural and related history in the divorce action.

[7] In his defences to that action the husband pled that the action was incompetent on the ground that the parties had already been divorced in Pakistan and that that divorce fell to be recognised as valid in Scotland. His defences also included a related plea that the Court of Session had no jurisdiction to entertain the wife's action. (He did not dispute that the court had jurisdiction in the territorial sense, the wife having been habitually resident in Scotland throughout the period of one year ending with the date when the action was brought - see Domicile and Matrimonial Proceedings Act 1973, section 7(2)(b).) In response the wife averred that, on various procedural grounds, the talaq divorce relied on by the husband was ineffective under the law of Pakistan and could not be recognised in the United Kingdom. An issue involving questions of foreign law accordingly arose. On 17 October 1990 the court pronounced an interlocutor allowing parties a preliminary proof restricted to the husband's plea to the competency of the action and his related plea to jurisdiction. On 19 June 1991 the court sisted the action in terms of paragraph 9 of Schedule 3 to the 1973 Act, presumably on the basis that certain proceedings in Lahore High Court (referred to below) were continuing. In July 1992 that sist was recalled. A diet for the preliminary proof was fixed. That diet was postponed on several occasions and ultimately fixed for 8 and 9 July 1993. Shortly before that date the solicitor then acting for the husband intimated to the solicitor for the wife that the husband was still not in a position to proceed with the preliminary proof. She suggested that if, as seemed likely given the passage of time, the wife was not prepared to agree to a further continuation, the husband's pleas to the competency and to jurisdiction should simply be abandoned and the preliminary proof discharged. As the wife would not, as was anticipated, agree to a further continuation, the husband's solicitor enrolled a motion to repel these two pleas and to discharge the preliminary proof. On 7 July 1993 the court made an order inter alia repelling these pleas. It also found the husband liable to the wife in 50% of the expenses occasioned by the allowance of the preliminary proof in October 1990 but otherwise reserved the question of expenses occasioned by the allowance of that proof.

[8] Throughout the course of the Scottish proceedings up to this point the husband had been legally represented, both by counsel and by solicitors. Although a lawyer instructed on the husband's behalf in Pakistan had in November 1989 advised that at a preliminary hearing a judge at Lahore High Court had suspended an order on which the wife had relied, the husband's Scottish solicitor had apparently taken the view that the factual and foreign law basis for the husband's two pleas could not effectively be advanced until the proceedings in Lahore High Court, in which questions had been raised about the procedural validity of the Pakistani divorce, had been finally determined. On 12 July 1993 the husband's solicitor wrote to him, advising him of the court's decision of 7 July and enclosing a copy of the order. That letter also stated, among other things:-

"As I confirmed to you when we spoke by telephone, the preliminary pleas relating to the Pakistani divorce can be amended back in at a later date should a decision from the High Court become available. You are therefore not prejudiced in that respect at the moment".

The husband's solicitor continued to make representations, including representations to the Chief Justice at Lahore High Court, in an attempt to expedite the resolution of these proceedings. In the event, they were not determined (at first instance) until October 1994, some five years after their commencement.

[9] Meantime the Scottish divorce action proceeded. Among outstanding issues was the wife's claim for a capital sum on divorce, the sum claimed being £100,000. The husband's solicitor succeeded in March 1994 in obtaining a discharge of the proof fixed to deal with the outstanding issues; but at about the same time the wife's solicitors enrolled a motion to ordain the husband, as a person by then resident outwith Scotland, to sist a mandatory who would be personally responsible for such expenses of the litigation as the husband had been or might be found liable to pay to the wife. The award of expenses made by the court on 7 July 1993 had been taxed in the sum of £7,289.77 and remained unpaid. The motion was opposed on behalf of the husband but on 11 March 1994 the court granted the wife's motion and allowed a period of 28 days for such a mandatory to be sisted. The husband did not sist a mandatory. He informed his solicitor that he was not financially in a position to do so. He indicated that he would be consulting an American lawyer against the possibility that the wife might seek to enforce any Scottish decree in the United States. In about April 1994 he consulted attorneys in Buffalo, New York State. Correspondence passed between them and the husband's Scottish solicitor who informed the U.S. attorneys of the then current situation in the Scottish divorce action.

[10] On 4 May 1994 the court, on the unopposed motion of the wife and in respect of the husband's failure to sist a mandatory, allowed the action to proceed as undefended. An undefended proof took place on 11 May when the Lord Ordinary, having heard evidence, pronounced the decree referred to above, the capital sum awarded being less than that claimed. The husband's Scottish solicitor had continued to act for him extrajudicially. He had shortly before the proof attempted, unsuccessfully, to obtain a settlement of the financial claims; another, unsuccessful, attempt was made to resolve matters shortly after decree had been pronounced. The husband's Scottish solicitor advised him of these matters. He also reported that the wife's solicitor's plan was to petition for the husband's bankruptcy in England (where he owned certain property) and to seek to enforce the Scottish decree in New York.

[11] In the course of the hearing of this reclaiming motion we were informed that there had been protracted and unresolved proceedings in the United States in which the wife had sought to enforce the Scottish decree in so far as it related to the capital sum, to interest on it and to expenses. The present action, which was raised towards the end of 2000, appears to be, in part at least, designed to assist the husband in resisting these proceedings. The husband, who remarried in the United States in 1992 and has children of that marriage, has also expressed concern about the subsistence of a Scottish decree of divorce which proceeds upon the basis that, as at 1994, he was still married to the wife.

[12] The first plea-in-law for the husband in the present action is to the effect that the decree of 1994 (in so far as challenged) was incompetent and so should be reduced. The Lord Ordinary sustained that plea and granted reduction as sought. He did so, in part at least, on the basis of an argument that, it having been established before him that the parties had been effectively divorced in Pakistan in August 1989 and that that divorce fell to be recognised in this jurisdiction, the Scottish court, albeit unwittingly and on the basis of misleading averments made by the wife in the divorce action, had acted ultra vires in May 1994 in pronouncing a decree which purported to divorce them and to make the ancillary orders complained of. The argument on competency (or vires), although legally distinct, appears to have been interrelated with an argument that, although the court was in general slow to reduce a decree in foro, there were in the present case exceptional circumstances which justified and rendered appropriate such a course.

The husband's primary argument
[13] Before us the argument on competency was renewed by Mrs. Scott, counsel for the husband, as her primary argument in resisting the reclaiming motion. It is convenient to deal with it first.

[14] Mrs. Scott submitted that it was not possible for a court to grant decree of divorce between parties who were not at that time married to each other; a decree which purported to divorce such persons was a nullity. A decree of divorce affected status and was equivalent to a judgment in rem rather than to a judgement in personam. A distinction fell to be drawn between reduction of a decree on its merits and reduction on other grounds; here the reduction sought was on the basis that the decree was an inherent nullity; that in itself was a ground for reduction of a decree in foro, though there might be a question, even in such a case, as to whether the court retained a residual discretion to grant or to refuse reduction. It was pars iudicis for a court to refuse to pronounce a decree which would be a nullity. In developing this submission, Mrs. Scott referred to Bridges v. Bridges 1911 S.C. 250, especially per Lord President Dunedin at page 251, Quazi v Quazi [1980] A.C. 744, Lawrence v. Lawrence [1985] Fam. 106, Rampal v. Rampal [2000] 2 F.L.R. 763, Callaghan v. Hanson-Fox [1992] Fam. 1 and Manchanda v. Manchanda [1995] 2 F.L.R. 590. The distinction between reduction on the merits and reduction on the grounds of nullity was well recognised (McLaren - Court of Session Practice pages 694-5; Mackay's Manual of Practice pages 620-3). Reference was also made to Corbidge v. Somerville 1913 S.C. 858, McMillan v. Free Church (1861) 23 D. 1314, Munro v. Rose (1855) 18 D. 292, Douglas v. Tait (1884) 12 R. 10, Girdwood v. Wilson (1834) 12 S. 576, Bain v. Hugh L.S. McConnell Ltd 1991 S.L.T. 691 and Longworth v. Yelverton (1868) 7 Macph. 70. On the matter of pars iudicis reference was made to Connell v. Ferguson (1857) 19 D. 482 and Hart v. Kitchen 1990 S.L.T. 54.

Discussion of the husband's primary argument
[15] In his chapter on actions of reduction the learned author of McLaren - Court of Session Practice, in discussing decrees in foro in the Court of Session, distinguishes at pages 694-5 between such decrees which are sought to be challenged "on the merits" and those which are sought to be challenged "on grounds independent of the merits". He observes that, in contrast to the general rule in respect of decrees challenged on the merits, "a decree in foro of the Court of Session may be reduced on grounds other than the merits". Among examples of a ground "other than the merits" he refers to "where there is an inherent nullity". Cited for that proposition is an observation by Lord Cowan in Munro v. Rose at page 295, where his Lordship distinguishes between an inherent nullity and "any objection in point of formality or otherwise, not amounting to inherent nullity". It was held in that case that the objection there advanced (which went to the form of the conclusions) did not give rise to an inherent nullity; there was no further discussion of what might constitute an "inherent nullity". Mackay's Manual of Practice at page 623 also refers to "informality of procedure importing inherent nullity" but, other than citing Lord Cowan's observation in Munro v. Rose, does not take matters further.

[16] In Corbidge v. Somerville the trustee in bankruptcy of a husband divorced in the Court of Session brought an action of reduction of the decree of divorce on the ground that the court pronouncing that decree had no jurisdiction to grant it, the husband, it was maintained, being a domiciled Englishman. The action of divorce had been raised after the husband's adjudication in bankruptcy and the appointment of the trustee. It had not been intimated to the trustee and had proceeded as undefended. The trustee claimed an interest in respect of the financial consequences of the divorce. He pled that the decree of divorce was "null and void". The court, while questioning whether the form of action adopted was appropriate, allowed the case to proceed to proof. The observations of the judges in that case must be seen against the background, first, that the decree challenged had been pronounced in an action which at no stage had been defended and, secondly, against the then current doctrine that, as a matter of private international law, the courts of the domicile of the husband had exclusive jurisdiction in an action for divorce (Le Mesurier v. Le Mesurier [1895] AC 517). On both these grounds it can be distinguished from the present case. The latter ground might be regarded as analogous to the rule, which applied prior to the enactment of the Divorce Jurisdiction, Court Fees and Legal Aid (Scotland) Act 1983, under which, within Scotland, the Court of Session had exclusive jurisdiction in such actions. Prior to that statutory change, any decree of divorce pronounced in the Sheriff Court would have been inherently null, as being ultra vires of that court.

[17] Mrs. Scott relied heavily on Bridges v. Bridges where there had been, in the Outer House, cross-actions of divorce. The husband had in his action obtained decree on the ground of the wife's adultery but in the wife's action, on the ground of the husband's alleged adultery, her averments had been found not proved. The wife endeavoured to reclaim in her action without seeking to challenge the decree in the husband's action. It was held that the Inner House could not entertain her reclaiming note as, the decree in the husband's action having become final, there was now no marriage to dissolve. Lord President Dunedin equiparated the situation before the court to that where one of the parties had died. He said:

"If a spouse raises an action of divorce, and during the pendency of that action the other spouse dies, the proceedings fall, because decree of divorce can no longer be pronounced. Accordingly I am of opinion here that, although the question is not strictly one of competency, we should refuse the reclaiming note, because really it is impossible for the case to go on".

On a true analysis that case is not, in our view, concerned with any inherent nullity but with whether, in the face of a final decree which had obviously and indisputably brought the marriage to an end, the Inner House could appropriately entertain an appeal in the cross-action of divorce. Although the Lord President referred to it being "impossible", there being no marriage to dissolve, for the court to reach an opposite conclusion from that reached by the Lord Ordinary, he makes it plain that that is in the known and unchallengeable circumstances of the dissolution.

[18] In the divorce action brought by the wife in 1989 she averred, and the husband admitted, that the parties had been married in Pakistan in 1979. The husband averred in defence that the marriage had effectively been dissolved in Pakistan; the wife disputed the validity of the Pakistani divorce proceedings. By the time of the undefended proof in May 1994 the husband, through his legal representatives, had (in July 1993) withdrawn his defence that the marriage had already been dissolved and (in early May 1994) had allowed the action otherwise to proceed as undefended. At no stage had he sought to reinstate the defence that the marriage had already been dissolved. Accordingly, when the case came before the Lord Ordinary on 11 May 1994, there was no subsisting objection being maintained before the court to the effect that the parties were no longer married to each other. Although, no doubt, the Open Record, including the husband's pleadings, was before the Lord Ordinary, the latter was entitled to assume that the defence based on the challenge to the competency and to jurisdiction had, on the basis of legal advice, been withdrawn. There was no plain lack of jurisdiction nor (prospective) fundamental nullity (cf. Connell v. Ferguson, per Lord Deas at pages 486-7; Hart v. Kitchen at page 57I).

[19] While the continued subsistence of the parties' marriage is an essential fact to be proved in any action of divorce, the circumstance that, as established in subsequent and distinct proceedings, the marriage did not in fact subsist at the time of the divorce does not, in our view, render that decree an inherent nullity. The situation is no different in principle from any other essential fact which a party may seek to prove (or to disprove) in any litigation. For example, the existence of a relationship of parent and child may be an essential foundation for a claim for aliment by or for that child; but a decree for aliment pronounced on the erroneous basis that such a relationship exists does not involve an excess of power on the part of the court which pronounced it (Philp v. Reid 1927 S.C. 224). No doubt because, in a case such as the present, the essential fact impinges on a matter of status, it may weigh importantly in the court's evaluation of whether exceptional circumstances for reducing a decree in foro have been made out. But it does not go to the vires of the court nor give rise to any fundamental nullity. We have not found the English cases cited to us of assistance in this matter.

[20] In our view, the Lord Ordinary erred in so far as he held that the Scottish decree was incompetent. Mrs. Scott's argument in support of that conclusion must be rejected. It is unnecessary in these circumstances to decide whether, if a decree in foro is a fundamental nullity, the party aggrieved is entitled as of right to reduction of it, the alternative possibility being that there remains a residual discretion in the court to grant or to refuse that remedy.

Exceptional circumstances - the Lord Ordinary's treatment
[21] The Lord Ordinary went on to consider whether there were "exceptional circumstances" which would permit the decree in foro to be reduced. The arguments against which he addressed this issue were, it seems, unusual. Mrs. Scott told us that before the Lord Ordinary her argument had been that the decree of divorce was ultra vires and accordingly a nullity - the argument which we have just considered and rejected. She had not, she added, sought reduction on the ground of any fraud on the part of the wife (in respect of her pleadings in the divorce action) or on the ground that the husband had effectively been excluded from the divorce action. Factors bearing on these and related matters had arisen in argument in the general context of a discussion of the equities in the event that, if the ground contended for (incompetency) were sustained, there might remain a residual discretion in the court to grant or to refuse the remedy of reduction sought.

[22] Before us Mrs. Scott contended, very much as a secondary position, that the Lord Ordinary had been entitled to hold that there were in this case exceptional circumstances which rendered it appropriate that reduction be pronounced. One difficulty about that approach is that the Lord Ordinary at no stage addressed the question of exceptional circumstances on the basis that the Scottish decree of divorce was intra vires. At para. [66] of his Opinion he summarised in the following terms his reasons for deciding that decree of reduction should be granted:

"(a) It was not competent for the Scottish Court to grant decree of divorce,

the parties having already been effectively divorced in Pakistan. As already discussed, the reason that this Court granted an incompetent decree is largely attributable to the fact that [the wife] presented a misleading picture to the Court of events in Pakistan.

(b) Although the decree of 11 May 1994 was a decree in foro and so I

should be cautious in reducing it, [the husband] was effectively excluded from the original litigation, and I am persuaded that in such circumstances the test for granting reduction is not perhaps quite as demanding as for other decrees in foro (see Ali v. Ali (No. 3) 2003 S.L.T. 641).

effective in Pakistan and one effective in Scotland, particularly standing the fact that there are currently pending enforcement proceedings in the United States of America against [the husband].

(d) The Court's discretion to refuse recognition of an effective foreign

divorce should be exercised sparingly (see Kellman [[2000] 1 F.L.R. 785]; El Fadl [[2000] 1 F.L.R. 175]; Quazi).

(e) As discussed above, [the wife] will not be left without any financial

provision if decree of reduction is granted - she may be able to apply to the English Court under the [Matrimonial and Family Proceedings Act 1984], and in any event [the husband's] offer remains open for acceptance.

(f) I am not satisfied that [the husband's] motive in obtaining divorce in

Pakistan is relevant. However, [the wife] was aware that he had taken advice from English solicitors, and that even in the event of his obtaining a Pakistani divorce she had a right to seek financial provision in the United Kingdom. Whatever [the husband's] motive, I am not persuaded that he has acted reprehensively since the granting of the Scottish decree in May 1994. I am not persuaded that he has sought to hide his whereabouts or to change his name in order to defeat [the wife's] claims against him. Throughout the enforcement proceedings he has maintained that his Pakistani divorce was effective; moreover, he has offered to pay for [the wife] to travel to America for the purposes of mediation, and he has made offers of financial provision for her.

(g) I do not consider that it is competent for me to reduce the decree of

divorce but to allow the award of capital sum and expenses to stand. While it is true that for purposes of suspension such a decree can be split into constituent parts (see Ali v. Ali 1999 S.L.T. 943), this does not assist [the wife]. The award of capital sum was made in the context of the Family Law (Scotland) Act 1985, and not in the context of the Matrimonial and Family Proceedings Act 1984. It was in the context of a divorce that [the wife] sought a capital sum, and it was in that context that the Court granted the remedy. It was not open to grant the remedy of a capital sum under the 1985 Act without granting a divorce. If the divorce decree falls, so must the decree for [a] capital sum.

(h) The argument for [the wife] that recognition of the Pakistani divorce

should be refused by reason of Section 51(1)(b) of the Family Law Act 1986 is in my view misconceived. It proceeds on the basis that the Pakistani divorce only became effective when the Lahore High Court issued its Opinion on 9 October 1984, by which time the Scottish decree of divorce had been pronounced. This is not an accurate representation of what happened. The decree of the Lahore High Court was merely declaratory of events which occurred in 1989. I am satisfied, on the basis of the evidence led before me and also on the basis of the judgment of the Lahore High Court, that the parties were effectively divorced in Pakistan in August 1989. It follows that section 51(1)(b) of the 1986 Act does not apply.

(i) In light of all of the above considerations, and particularly the conduct

of [the wife] in the course of the original divorce proceedings in Scotland, I do not consider that it would be appropriate or fair to leave the award of expenses in her favour standing".

Discussion of the Lord Ordinary's treatment
[23] For the reasons which we have already given, the first sentence of reason (a) is unsound. We shall return to discuss the second sentence. In reason (b) the Lord Ordinary recognises that he should be cautious in reducing a decree in foro but states that "[he husband] was effectively excluded from the original litigation" and, under reference to Ali v. Ali (No. 3), that he is persuaded "that in such circumstances the test for granting reduction is not perhaps quite as demanding as for other decrees in foro". Again we shall return to these observations. None of reasons (c) to (i) inclusive is directly concerned with the application of the "exceptional circumstances" test for reduction of a decree in foro. Grounds (d) and (h) are each concerned with whether the court should refuse to recognise the Pakistani divorce. The questions of recognition of that divorce and of the availability of the remedy of reduction are, as the Lord Ordinary had earlier recognised (para. 58), distinct. It is no longer disputed that this court should recognise the Pakistani divorce - or indeed that, if the matters established by the husband in this action had been established by him in the divorce action, this court would not in these circumstances have granted divorce. But the fact that this court recognises a foreign divorce as valid is not of itself a reason for granting the remedy of reduction. As to reason (c) we discuss below the suggestion of inconsistency. So far as enforcement proceedings (and indeed the husband's second family) are concerned, the husband has the assurance not only that his 1989 divorce is effective in Pakistan but also that the Scottish court, by a finding in this action which the wife has not sought to challenge in this appeal, has now recognised the effectiveness of that divorce, even if it may not, having regard to its internal rules and practices, be persuaded that the Scottish divorce decree should be reduced. Reasons (g) and (i) are essentially concerned with ancillary matters, to which we shall return; they do not bear on the issue whether the divorce decree itself should be reduced. Grounds (e) and (f) are essentially concerned with negative factors, that is, factors which, if made out, might have weighed against granting the remedy of reduction; neither advances the considerations in favour of its grant.

[24] The principles applicable to reduction by the Court of Session of decrees in foro are well recognised, albeit not closely defined. They apply to all actions which have been contested, even if the party, against whom the decree complained of has been pronounced, has, after entering the process, later withdrawn from it. They are conceived essentially in the interests of the finality of proceedings. Reduction of a decree in foro "is a remedy which does not exist of right, and must be most carefully applied" (Adair v. Colville & Sons 1926 S.C. (H.L.) 51, per Lord Dunedin at page 56). The expressions "exceptional circumstances" (Philp v. Reid, per Lord Anderson at page 234) and "special and exceptional circumstances" (do per Lord Hunter at page 232) have been used to describe the test to be applied.

[25] The Lord Ordinary took the view that the husband had been "effectively excluded" from the divorce action and was persuaded that the test for granting reduction was "not perhaps quite as demanding as for other decrees in foro" (para. 66[b]). That reasoning is, in our view, seriously flawed. It appears to proceed on an argument that, because the husband was in March 1994 ordained to sist a mandatory and because, he having failed for financial reasons to do so, the action proceeded as undefended, he was thereby deprived of the opportunity of maintaining his defence that he had already been effectively divorced. That argument, which incidentally Mrs. Scott did not before us maintain as a ground of reduction but only as a matter going to "the equities", fails to recognise that that defence had been withdrawn by the husband at his own instance much earlier (in July 2003). No doubt that withdrawal and the failure subsequently to attempt to reinstate the defence were against the background of the continued dependence of the proceedings in Lahore High Court which were conceived to have a bearing on the matter. But, as the outcome of the present action has demonstrated, proof that the divorce proceedings in Pakistan were effective in that country did not depend upon the outcome of the Lahore litigation. The primary evidence upon which the Lord Ordinary found that fact established came from Dr. Lau, an expert witness established in the United Kingdom and instructed by the husband for the purposes of the present action. So far as appears from the Lord Ordinary's Opinion (or from any other material placed before us) there was no reason why the husband, or his then legal advisers, should not have sought such assistance in this country in support of the defence in the divorce action. For the purposes of establishing exceptional circumstances in an action of reduction the husband cannot rely on any failure on the part of his former legal advisers to suggest means of effectively insisting in his defence. Nor are we satisfied that the decision in Ali v Ali (No. 3), where the relevant party was without legal advice, warrants any lowering of the relevant test.

[26] The Lord Ordinary's observation in the second sentence of reason (a) is also, in our view, seriously flawed. The Lord Ordinary clearly took an adverse view of the wife not only as a witness before him but as a party in the divorce action. At para. [65] he stated:

"I consider that the picture presented to this court in [the wife's] averments in 1994 was so misleading as to be almost capable of being categorised as a fraud on the court".

Having heard detailed argument from Mr. Mitchell, counsel for the wife, and from Mrs. Scott on this approach, we are satisfied that the Lord Ordinary's categorisation of the wife's conduct in relation to the divorce action was, on the evidence before him, unwarranted. He also without, in our view, a proper basis for doing so castigated the conduct of the wife's then legal representatives, both in Scotland and in Pakistan.

[27] The Lord Ordinary's criticism of the wife's legal representative in Pakistan was in relation to the causes of the delay in the Lahore High Court. At para. [64], after reference to an averment by the wife in the divorce action about the delay in the Lahore court being "for no good reason", he stated:

"It is apparent from a perusal of the Court order sheet (No. 6/6 of process) that there were protracted periods of delay in the Pakistani proceedings caused largely (although not solely) by the representative for [the wife]."

That contention is repeated in para. [65] in the context of an assertion that the husband "was obliged" to accept dismissal of certain pleas, including those directed to competency and jurisdiction "because of the delays in the Pakistani Court proceedings - delays which, as I have noted above, were caused in large part by the [wife's] Advocate in Pakistan". However, perusal of that sheet demonstrates that, with the possible exception of a short period between November 1993 and March 1994, none of the delays could properly be attributed to the wife's legal representative; indeed by far the larger number of postponements sought and obtained were at the instance of the husband's representative and the overall picture was that both the husband's and the wife's legal representatives were pressing that court to reach a decision - which inexplicably, so far as appears, it took nearly five years to reach. It does not appear that Mrs. Scott in the Outer House sought to criticise the wife's legal representative in Pakistan; nor did she do so before us.

[28] The Lord Ordinary's basis for criticism of the wife's legal representatives in Scotland (whether solicitor or counsel) is not wholly clear. It concerns the state of the wife's pleadings in the divorce action. At one point (para. [64]) the Lord Ordinary appears to criticise her averments that the proceedings before the Lahore High Court were incompetent on the ground that these averments "appear to have been ill-founded". But, as is plain, these averments proceeded on the basis of advice obtained by the wife from an expert qualified to advise on Pakistani law. Although the Lord Ordinary rejected, as he was entitled to do, the testimony ultimately given by that expert, it is not a valid criticism of the wife or of her then Scottish legal advisers that her averments proceeded on the basis of such advice.

[29] More difficult to assess is the validity of the general criticism made by the Lord Ordinary of the wife (and perhaps by inference of her Scottish legal representatives) as to the state of her pleadings in the divorce action. We accept that the Lord Ordinary was entitled to reach the view which he did of the wife as a witness and to notice that a belief averred in her summons (but later deleted on adjustment) could not be substantiated by her and that her pleadings in their final form contained, in respect of the proceedings in Lahore High Court, an omission in relation to the order of suspension pronounced by that court in November 1989. If, as the Lord Ordinary opined, that omission was "crucial", it can equally be laid at the door of the husband and his representatives, there being no reference in his pleadings to that order. Statute and rules of court imposed on both parties obligations to furnish relevant particulars of current proceedings in another jurisdiction (Domicile and Matrimonial Proceedings Act 1973, Schedule 3 para.7; R.C. 40.2). As the husband stated in evidence, he had personal knowledge of the suspension order. In any event, we doubt whether the making of such an averment on either hand, the significance of which was ex hypothesi not spoken to in evidence, would of itself have caused the Lord Ordinary before whom the undefended proof depended either to refuse to grant decree of divorce or to require the matter of the subsistence of the marriage to be further investigated. On any view the Lahore proceedings, in so far as significant, had been so protracted and remained without indication of early resolution, that further delay in the Scottish proceedings could not reasonably have been expected.

Discussion of new
[30] In the foregoing circumstances we are satisfied that the Lord Ordinary's reasons for concluding that there were exceptional circumstances and that it was appropriate and just to pronounce decree of reduction are so unsatisfactory that this court requires to consider the issue of new.

[31] We recognise that in approaching that issue it is important to bear in mind as a relevant consideration the fact that the decree sought to be impugned is one relating to status and so may potentially affect persons other than the parties to the relevant marriage. But a refusal to reduce the Scottish divorce decree of 1994 would not have the result that there were mutually inconsistent findings as to the present status of the parties. Both modes of divorce have had the legal result that the parties are no longer married to each other. The only possible inconsistency is as to their marital relationship between August 1989 and May 1994. But even in that respect there is now no true inconsistency, since a (now undisputed) result of the present action is that the Court of Session has found that the Pakistani divorce was effective as from its date and that its effectiveness falls to be recognised in this jurisdiction. Accordingly, even if the Scottish divorce decree is allowed to stand, it has now been acknowledged by the legal systems both of Pakistan and of Scotland that the parties were effectively divorced in 1989. The wife, who has not in this appeal disputed that proposition, may be taken to have accepted it. The husband's second family are accordingly not now prejudiced by there being any continuing basis for any suggestion that the husband was not free, in 1992, to marry his second wife.

[32] It is plain that the real substance of the parties' present dispute is not a matter of their status but of their respective financial interests consequential on the award in 1994 of a capital sum and of expenses. It is proceedings, primarily in the United States, to enforce these awards which form the background to this litigation.

[33] In our view the husband has not in this process established facts and circumstances which justify reducing the divorce decree of 1994. For the reasons expressed above, we are satisfied that he was not effectively excluded from maintaining his defence that the parties' marriage no longer subsisted. He chose to withdraw that defence. Whether he did so on the basis of good advice or of bad advice or of no advice is not material in circumstances where he had legal representation. Any failures on the part of his then legal representatives cannot be relied upon by him for the purposes of the present proceedings. Nor are there are positive equitable considerations sufficient to justify the granting of this unusual remedy. While the wife's averments in relation to the proceedings in the Lahore High Court (in which she also was legally represented) might appropriately have been fuller, the husband's averments were likewise less than they might have been. In any event, we are not satisfied that these omissions of themselves led to any miscarriage of justice. Although not conclusive, it is also material to note that more than six years elapsed between the granting, to the husband's knowledge, of the Scottish divorce decree and the institution by him of the present action. We are not persuaded that the submission made to the Lord Ordinary on behalf of the husband that this delay was "not significant" (para. [58] (viii)) - not expressly dealt with by the Lord Ordinary - is well-founded. Nor was any new matter established in this action which could not have been established by way of defence in the divorce action.

[34] We should add that we heard submissions on the question whether, if the divorce decree were to be reduced, the orders for payment of a capital sum and of expenses should nonetheless stand. However, having regard to our decision on the issue of the divorce decree, the subsidiary question does not arise for decision. It was not suggested that, if the divorce decree were to stand, either the order for a capital sum or that for expenses should be reduced. Nor is it necessary in the circumstances to discuss the implications of the provisions of the Matrimonial and Family Proceedings Act 1984.

Disposal
[35] In the whole circumstances we shall allow this reclaiming motion, recall the Lord Ordinary's interlocutor of 31 March 2004, repel the husband's first plea in law, sustain the wife's fourth, eighth and ninth pleas in law and assoilzie her from the conclusions of the summons.