Scottish Court of Session Decisions

SECOND DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 14

F88/13

Lord Justice Clerk

Lady Dorrian

Lord Bracadale

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in the reclaiming motion

by

HS

Pursuer and Reclaimer;

against

FS

Defender and Respondent:

Act: Ennis; Turcan Connell

Alt: Malcolm; Ledingham Chalmers LLP

30 January 2015

Introduction

[1]        On 6 to 8 May 2014, the Lord Ordinary heard a preliminary proof on the correct “relevant date” for the purposes of fixing and valuing the parties’ matrimonial property.  That date is “whichever is the earlier of…the date on which the persons ceased to cohabit [and] the date of service of the summons …” (Family Law (Scotland) Act 1985, s 10(3)).  “… [T]he parties to a marriage shall be held to cohabit with one another only when they are in fact living together as man and wife” (s 27(2)).

[2]        It was the pursuer’s position that the relevant date was 13 May, which failing 19 June 2013. The significance of these dates is that, as of 13 May 2013, as the pursuer averred, she had “considered that her marriage was over”.  She had spoken with a solicitor in that regard on that date.  On 18 June 2013, her solicitors had written to the defender to advise him of that position.  The defender maintained that the parties had continued to live together as husband and wife after both dates.  The relevant date, according to him, was 11 September 2013, being the date of service of the summons.

[3]        The Lord Ordinary determined the date to be 19 June 2013 (the receipt date of the letter).  The pursuer reclaimed on the basis that the Lord Ordinary had erred in so doing, and “in particular…[e]rred in law” in various respects in his treatment of the evidence.  Ultimately, the pursuer’s overarching ground of appeal was that:

“… the Lord Ordinary having failed to consider all the relevant evidence, misunderstood or failed to have full and proper regard to the relevant evidence he arrived at a decision that cannot reasonably be justified.  No reasonable Lord Ordinary, having proper regard to all of the relevant evidence in the case would have fixed the relevant date at 19^th June, but would have fixed it at 13^th May 2013 or thereby.” 

The appeal therefore raises the issue of whether the Lord Ordinary did so err in his determination of a matter of fact.

Evidence
[4]        The parties were married at Perth on 17 December 1966.  They lived, and continue to live, together in the matrimonial home in Aberdeen.  They own a second property in Putney, London.  They worked, together with their adult son, in the family business, namely CA Systems.  The defender was the managing director and the pursuer worked in an administrative capacity.  In early 2013, the defender had been seeking an overdraft facility for the firm.  A disagreement arose as to whether a security should be granted over the Putney property.  On 9 April 2013, the bank wrote to the pursuer advising her that her consent was required.  After a heated discussion at work on 26 April 2013, the defender formally wrote to the pursuer requesting that she take paid leave of absence.  Having initially refused, the pursuer did so some weeks later. 

[5]        Notwithstanding the tension between the parties, their domestic arrangements continued relatively unchanged.  The pursuer did the cooking, cleaning, laundry and all the household tasks as she had always done.  The parties ate their meals together.  They watched television together.  The financial management of household bills remained the same.  The pursuer saw the defender off at the door when he went to work.  The defender had continued to profess his love and affection for the pursuer, even if that was not reciprocated. 

[6]        In March or April 2013, the defender had moved to a spare bedroom.  There was a dispute about the reason for this.  The defender’s position was that he did so as a result of his sleep being disturbed by stress caused by the lack of an overdraft facility for the business.  He had, it was agreed, previously occasionally slept in a different room for periods if he had been travelling, or had had difficulty sleeping or following upon an argument.  On 9 May 2013, the pursuer contacted a firm of London solicitors to arrange a telephone consultation.  On 13 May 2013, according to an affidavit from the solicitor, advice was tendered to the pursuer in relation to the Putney property.  The issue of divorce had also been discussed.  The pursuer was advised to consult a Scots lawyer as there would be no jurisdiction in England.

[7]        By letter dated 31 May 2013, the defender’s solicitors wrote to the pursuer requesting that she consult a solicitor with regard to the Putney property.  The letter made no mention of any marital problems.  It stated that the defender wished to force a sale of the property.  The pursuer contacted Scottish solicitors.  By letter dated 18 June 2013, these solicitors intimated that the pursuer had reached the view that the marriage had broken down irretrievably and that she wished to be divorced in due course.  The parties had not discussed divorce previously between themselves.

[8]        A summons was served on the defender on 11 September 2013.  The pursuer averred in it that the relevant date was 18 June 2013.  She accepted that this averment had been based on information which she had given to her solicitors as to when she considered her marriage to be “over”.  At adjustment, the pursuer altered her position.  She founded upon her earlier contact with the London solicitors and averred that there had been no prospect of reconciliation from the time of her telephone consultation on 13 May 2013.  Notwithstanding her acceptance of what she had told her solicitors, this was the true date upon which she felt her marriage had been over.

The Lord Ordinary’s Opinion
[9]        The parties were agreed that the Lord Ordinary should follow the approach in Banks v Banks [2005] Fam LR 116 (Lord Carloway at para [33]) in determining the relevant date.  The Lord Ordinary accepted that the pursuer had been under pressure as a result of the defender’s attempts to persuade her to grant a security over the Putney property.  He accepted the defender’s account of the circumstances in which he had moved into the spare bedroom.  He considered that the pursuer sought to attach more significance to that move, and to her paid leave of absence from work, than these events had carried at the time.  He stated (para [48]), that he regarded “her change of position in the pleadings to be of some significance”. 

[10]      The Lord Ordinary reasoned that:

“[50]    The dispute about securing finance for the company using the Putney property has undoubtedly been a major factor in the breakdown of the parties’ relationship.  The events of 26 April 2013 were a milestone on that journey, but … the relationship was far from over at that date.  During the period between that date and service of the summons the parties lived their lives together in largely the same way they had done previously.  They ate together and spent time together.  The household continued to be run as before with each party making their usual contributions.  The defender continued to demonstrate affection towards the pursuer.

[51]      I accept that when the pursuer spoke to [the London solicitors] on 13 May 2013 she was contemplating divorce.  I am wholly unconvinced that at that point the defender had any notion that the marriage was over or that divorce was in prospect…  [T]he letter sent on his instructions provide[s] no indication of any belief on his part that the marriage had broken down…  Nor in my view do any of the other factors suggested by the pursuer point to the defender thinking that the marriage was at an end at that time…

[52]      In the whole circumstances I conclude that the parties were still cohabiting as man and wife on 13 May 2013.

[53]      The position was different when the defender received the … letter of 18 June 2013.  The letter was a declaration by the pursuer to the defender that she had resolved upon divorce proceedings.  While the letter came as a shock to the defender, from that time he knew the pursuer’s intentions and he knew she considered that they remained under one roof as separated persons.  From that point, viewing matters in the round, they were no longer living together as man and wife.  Accordingly, … “the relevant date” in terms of s. 10(3) of the 1985 Act is 19 June 2013.”

The pursuer’s submissions
[11]      The pursuer submitted that the Lord Ordinary had failed to identify correctly the relevant test for establishing the relevant date.  This was an important point of principle, which had not yet been ruled upon by the Inner House.  The appropriate test was that the whole facts had to be judged objectively (Banks v Banks, supra).  The critical and pivotal factor, upon which the Lord Ordinary had based his decision (para [53]), had been the defender’s state of knowledge following receipt of the letter of 18 June 2013.  However, the test was not the defender’s awareness of the pursuer’s intentions, but the whole of the facts determined objectively.  It was not appropriate to conduct an analysis of the factors prevailing before and after a particular event, but to look at the nature of the cohabitation and to consider whether, and when, any events occurred, which might have affected that nature (ibid, para 36; Clive, The Law of Husband and Wife in Scotland (4^th edn, 1997), para  21.075).  No single factor was conclusive.  The Lord Ordinary having erred in his approach, the court could consider all factors of new.

[12]      The amount and nature of the time which the parties spent together was relevant (Clive, supra, para 21.076).  In this marriage however, the cohabitation had not been characterised by the undertaking of common interests or holidays or spending time together.  The parties largely spent time together when working in the family business.  This had changed in April 2013.  The defender’s letter to the pursuer had been curt and, viewed objectively, could not have been written in the context of a marriage of mutual support.  The letter connoted a change in the nature of the cohabitation.

[13]      The defender had moved out of the shared bedroom.  He had never returned.  The Lord Ordinary had preferred the evidence of the defender regarding the reason for having moved rooms, but he had failed to assess the facts surrounding the move.  That move, and the whole evidence about it, judged objectively, indicated a change in the parties’ cohabitation.

[14]      The letter from the defender’s solicitors dated 21 May 2013 could only be read as advising the pursuer that proceedings were to be raised to force the sale of matrimonial property.  It could not be read as having been sent within the context of a relationship of mutual support and affection.  By mid-May, the pursuer had taken legal advice from solicitors in London regarding divorce.  She had been clear in her mind that the marriage was over.  The pursuer’s position was a factor that required to be taken into account (Clive, supra, para 21.074; cf Santos v Santos 1972 Fam 247 at 260).  Her intention was not determinative, but the Lord Ordinary had failed to hold that the pursuer had intended her marriage to end when she had contacted English solicitors on 13 May 2013.  If the pursuer’s intentions were to be ignored, then the defender’s state of knowledge was likewise irrelevant.

[15]      The Lord Ordinary, having erred in fact, had applied the law incorrectly in his determination of the relevant date (Henderson v Foxworth Investments 2014 SC (UKSC) 203, applying Thomas v Thomas 1947 SC (HL) 45).  The court should allow the reclaiming motion and substitute 13 May 2013 as the relevant date.

Decision
[16]      The question is whether the Lord Ordinary erred in finding in fact that the relevant date was 19 June 2013.  He applied himself to the correct legal test in that regard in adopting the formulation set out in Banks v Banks [2005] Fam LR 116 (Lord Carloway at para [33]), viz.:

“The task of the Court is to determine when the parties ceased to cohabit, having regard to the statutory provision that cohabitation occurs only when parties are ‘in fact living together as husband (sic) and wife’.  That is, as the provision itself states, a matter of fact.  The ultimate determination of the issue must depend upon the particular circumstances of a given case.  As a generality, the Court must look at the issue objectively; no doubt taking into account the illustrative factors mentioned by Professor Clive [The Law of Husband and Wife (4^th edn, 1997)].  There may, of course, be many others which emerge as relevant.  The intention of the parties cannot be determinative of the issue.  In that sense, there is no absolute requirement for one of the parties to have decided that the marriage or relationship has run its course or that such a decision should have been communicated by one party to the other.  However, the intention of the parties and any communication of them to each other may be relevant factors in the equation.”

[17]      The basis of the Lord Ordinary’s decision is not confined to the content of paragraph [53] of his Opinion (supra) regarding the defender’s intention or state of knowledge.  His reasoning encompasses his earlier observation (at paras [48] et seq) on the significance of the pursuer’s position in the original summons.  It takes into account the undoubtedly important facts that the parties continued to live together as before (other than what may, at the time, have been a temporary change in their sleeping accommodation); eating and spending time together.  Their financial arrangements remained unaltered.  The Lord Ordinary’s discussion of the defender’s state of mind was not designed to convey an impression that it was a decisive factor in his reasoning.  Rather, it is referred to as a counterbalance to his narrative of the pursuer’s position in relation to her own innermost thoughts.  As the Lord Ordinary specifically stated (para [52]), it was upon a consideration of all the circumstances that he made the critical finding in fact.

[18]      The court is satisfied that the Lord Ordinary was entitled to conclude, in all the circumstances, that the relevant date was 19 June 2013 for the reasons given.  Where the nature of the parties’ cohabitation had, in many ways, changed little over the relevant period, the Lord Ordinary was entitled to consider that the factor which finally tipped the balance from cohabitation to separation was the communication of the pursuer’s intention to divorce the defender.  Until then, the Lord Ordinary was entitled to take the view that cohabitation had continued, given the lack of material change in the parties’ living arrangements. 

[19]      In the determination of this reclaiming motion, which proceeds upon an alleged error of fact, the court was referred to the observations of Lord Reed in Henderson v Foxworth Investments 2014 SC (UKSC) 203, which clearly influenced the formulation of the pursuer’s grounds of appeal.  Lord Reed stated:

“[58]    The principles governing the review of findings of fact by appellate courts were recently discussed by this court in McGraddie v McGraddie [2014 SC (UKSC) 12].  There is no need to repeat what was said there. There may however be value in developing some of the points which were made in that judgment.

…”.

[20]      Lord Reed cited the dictum of Lord Macmillan in Thomas v Thomas 1947 SC (HL) 45 (at 59) to the effect that an appellate court could intervene only in certain limited circumstances, including where the judge at first instance had been shown “otherwise to have gone plainly wrong”.  This phraseology was noted as deriving from Clarke v Edinburgh and District Tramways Co 1919 SC (HL) 35 (Lord Shaw of Dunfermline at 37).  Lord Reed explains (at para [62]) that the word “plainly” is not a reference to the confidence of the appellate court.  “What matters is whether the decision under appeal is one that no reasonable judge could have reached”.

[21]      Having quoted the relevant dicta of Lord Thankerton (at 54), Lord du Parcq (at 63) and Viscount Simon (diss, at 47), Lord Reed continues:

“[66]    These dicta are couched in different language, but they are to the same general effect, and assist in understanding what Lord Macmillan is likely to have intended when he said that the trial judge might be shown ‘otherwise to have gone plainly wrong’.  … [T]he phrase can be understood as signifying that the decision of the trial judge cannot reasonably be explained or justified.

[67]      It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.

[68]      This approach is consistent, as I have explained, with the Scottish authorities, and also with more recent authority in this court…”.

[22]      The court does not understand Lord Reed to be seeking to depart from the familiar and long-settled approach of the Scottish courts hitherto in appeals on matters of fact.  Although some of the wording (supra, at paragraph [62]) might, if looked at in isolation, be taken to suggest an approach redolent of the high test applicable in cases of judicial review, it is clear from Lord Reed’s careful analysis of the dicta in Thomas v Thomas 1947 SC (HL) 45 that what he was doing was explaining in more modern language the meaning of “plainly wrong”.  This is consistent with his observation in McGraddie v McGraddie 2014 SC (UKSC) 12 (at para [5]) that: “While the law is not in doubt, its application has been inconsistent.”

[23]      In an appeal which seeks to challenge findings‒in‒fact, an appellate court must have due regard to the limitations of an appeal process, with its “narrow focus on particular issues as opposed to viewing the case as a whole” (ibid, Lord Reed at para [33] citing Housen v Nikolaisen 2002 SCC 33 at para 14).  When considering reversing a first instance judge’s findings‒in‒fact, therefore the appellate court should confine itself to situations where it can categorise the findings as incapable of being reasonably explained or justified in terms of the dicta quoted in Henderson v Foxworth Investments (at paras [63] to [65]).  Mere disagreement with the findings at first instance will not suffice.

[24]      Following this approach, the court is satisfied there is no basis upon which to interfere with the Lord Ordinary’s decision in the absence of any error of the kind described in Thomas v Thomas (supra) and, in particular, encompassed in Lord Reed’s exposition of what may be regarded as something which is “plainly wrong”.  The reclaiming motion must therefore be refused.