Act: Leighton; Aitken Nairn WS

11 July 2013

[1] The petitioner is the defender in an action at Edinburgh Sheriff Court in which his wife seeks decree of divorce and orders for financial provision. On 24 October 2012 the sheriff found the wife entitled to interim aliment payable by the defender at the rate of £750 per month. By interlocutor dated 13 November, he ordained the petitioner to obtemper that interim order. On 9 January 2013, he found the petitioner guilty of contempt of court in respect of a breach not of that order but the preceding order for payment of interim aliment. The interlocutor recorded that the finding of contempt of court and breach of the interim order were made in respect that as at 9 January 2013 the parties were agreed that the sum of £1,000 remained outstanding. Sentence was deferred until 6 February 2013. Meantime, the defender presented this petition.

[2] The petition avers that the sheriff was not entitled to find the petitioner in contempt of court on account of procedural irregularities and because the contempt could not be established beyond reasonable doubt (Johnston v Johnston 1996 SLT 499). It is averred that the petitioner's failure to make payment of aliment was not wilful. Adjusted into the petition was an averment that the sheriff was not entitled to find the petitioner in contempt of court because of the existence of available alternative processes of diligence where non-payment of debt has occurred (Hay v Lefelier-Lebos 1989 SLT (Sh Ct) 55). It was maintained that, in respect of non-payment of aliment, the procedure in relation to punishment by imprisonment is regulated by section 4 of the Civil Imprisonment (Scotland) Act 1882. The court's inherent jurisdiction in respect of summary punishment for contempt required to be confined within proper and necessary limits (Hall v Associated Newspapers 1979 JC 1), whereas the sheriff's finding of contempt circumvented the statutory provisions applicable to circumstances of non-payment of aliment.

[3] The court's consideration proceeded in the absence of a contradictor. The diet was intimated to the wife, but she elected not to attend or be represented. However, the question which remains to be answered is whether a person may be found in contempt of court by reason only of a failure to obtemper an order for payment of an alimentary debt. Section 4 of the Debtors (Scotland) Act 1880 provides:

"With the exceptions herein-after mentioned, no person shall be apprehended or imprisoned on account of any civil debt.

'There shall be excepted from the operation of the above enactment, [...]

(2) Sums decerned for aliment:

Provided that no person shall be imprisoned in any case excepted from the operation of this section for a longer period than twelve months.'"

Section 3 of the Civil Imprisonment (Scotland) Act 1882 provides:

"No person shall, except as hereinafter provided, be apprehended or imprisoned on account of his failure to pay any sum or sums decerned for aliment".

Section 4 then provides that a person may be committed to prison for a maximum of six weeks if the non-payment is wilful following the expiry of the days of a charge.

[4] In Hay v Lefelier-Lebos (supra) the Sheriff Principal (O'Brien QC) made it clear that there were due processes of diligence where a party failed to pay a debt, alimentary or otherwise. If the drastic remedy of imprisonment were sought, there was a recognised procedure to be followed. The procedure, notably that prescribed by section 4 of the 1882 Act, had not been followed in that case, and it has not been followed in this case either. Similarly, in Anderson v Douglas 1998 SLT 379, it was held that failure to make payment of a fine could not amount to a contempt of court as there was another perfectly adequate remedy for dealing with such a failure.

[5] For those reasons, the court considers that a failure to make payment of an alimentary debt cannot amount to a contempt of court. The 1882 Act is prescriptive as regards the procedure for punishment by way of imprisonment in respect of any such failure. The court does not consider that the statutory provisions can be short-circuited by a finding of contempt, being likewise punishable by imprisonment (Contempt of Court Act 1981, section 15), or, for completeness, by an interlocutor ordaining a party to obtemper an order for payment; such an order being both superfluous (cf Johnston v Johnston (supra)) and potentially misleading on the consequences of non-payment.

[6] Accordingly, the court has granted the prayer of the petition.