Scottish Sheriff Court Decisions

SUSAN CAMPBELL or WILSON v. JOHN WILSON [2000] ScotSC 34 (21st December, 2000)

FA178/00

SUSAN CAMPBELL or WILSON v JOHN WILSON

Alt: Mr Dunn, for defender and appellant

The Sheriff Principal having heard parties' procurators on the competency of the appeal Dismisses the appeal as being incompetent; Reserves the question of expenses meantime.

NOTE:

This appeal raises the question, not yet the subject of judicial decision in this sheriffdom, whether an appeal can competently be taken without leave of the sheriff to the sheriff principal against the granting by the sheriff at an early stage in a consistorial action of an order under section 2(4)(b) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 ordaining the defender to contribute to the mortgage instalments in respect of the matrimonial home by monthly payments to be made directly to the heritable creditor. The sheriff by the same interlocutor also ordered the defender to pay sums of interim aliment weekly in advance to the pursuer and this part of his interlocutor is also sought to be appealed although it has been since 1990 established in all the sheriffdoms of Scotland that an award of interim aliment cannot competently be appealed to the sheriff principal without leave of the sheriff. There has been in the Sheriffdom of Glasgow and Strathkelvin since November 1997 a decision of the Sheriff Principal there declaring an interim order under section 2(4)(b) of the 1981 Act to be appealable without leave: the existence of that decision is mentioned by the learned authors of Macphail on Sheriff Court Practice (2^nd ed) in section 18.39 of that work. The issue was contested and argued before me, leave to appeal having been neither sought from nor granted by the sheriff.

In this action of divorce (which is a good example of the standard style of divorce action in the modern manner) the pursuer has thirteen craves including a seventh for payment of interim aliment and an eighth for an order under section 2(4)(b) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 requiring the defender to make monthly payments in respect of the mortgage over the jointly owned matrimonial home, an endowment policy linked to the mortgage and the premium for the insurance of the matrimonial home. There are two children, a younger one of the marriage and an elder one accepted by the defender as a child of the family, who currently reside with the pursuer in the matrimonial home which the defender has left. The sheriff on 28 August 2000 found the pursuer entitled to interim aliment at the rate of £150 per week payable in advance and ordained the defender to pay £200 per month to the Bank of Scotland towards the cost of the mortgage on the matrimonial home, these orders being back-dated to 17 August when the sheriff had heard the motion. Against this interlocutor the defender has appealed without seeking leave on the view that the second part of the interlocutor is appealable to the sheriff principal without leave under section 27(b) of the Sheriff Courts (Scotland) Act 1907 (see Irving v Irving 1998 SCLR 373, cited in Sheriff Macphail's textbook on Sheriff Court Practice (2^nd ed) at section 18.39) and that the whole of the interlocutor is thus opened up to review even although the first part would normally have required the sheriff's leave. This latter proposition is not disputed but I raised a question as to the competency without leave of an appeal against an order granted at an interim stage under section 2(4)(b) of the 1981 Act of the type here granted by the sheriff, considering it pars iudicis so to do. The matter was intimated to parties in advance of the diet of appeal and their agents have kindly prepared themselves to argue the matter of competency before me.

I was referred to a number of decisions of various sheriffs principal (concerning parties by name of Milne, Cassidy, Trolland, Rixson, Hulme and Richardson) and myself considered two more (Spencer and Lamberton) relating to the appealability of orders for interim aliment, which are relevant to an understanding of the meaning to be attached to the phrase "interim decree for payment of money" in section 27(b) of the Sheriff Courts (Scotland) Act 1907. These cases are set out for ease of reference in an appendix below. They form a series of decisions arising out of an issue debated from 1964 to 1990 until resolved by all sheriffs principal eventually following the line first adopted by the much respected Sir Allan Walker QC, Sheriff (Principal) of Lanark at Glasgow to the effect that section 27(b) should be interpreted as applying only to the second of two categories indicated by Maclaren in his textbook on Court of Session Practice at pages 1090 and 1091. The first category was there described by the learned author as "decree for the purpose of making an interim provision until the merits of the case are finally decided" while the second he describes as "an interim decree pronounced on the merits of the cause". Into the first category he places inter alia decrees for interim aliment and decrees for interim interdict. The second category may include, for instance, interim decree where pleadings disclose that a balance is admittedly or plainly due or where a debate results in a sum being found due while liability for other sums must await determination after proof. It was suggested to me for the appellant that the inclusion of interim interdict in the first of Maclaren's categories detracted from the idea that they could usefully determine the interpretation of section 27(b) when interim interdict itself appeared in section 27(a), but I am inclined to think that the fact that it was thought necessary to make special provision for interim interdict in section 27(a) tends to reinforce rather than undermine that idea.

In the case of Irving, somewhat briefly reported in note form at 1998 SCLR 373, Sheriff Principal Bowen QC was attracted to the straightforward approach of Sheriff Principal Gimson QC in the case of Spencer but this had already been dissented from as being too simplistic in light of the earlier statutory history by Sheriff Principal Caplan QC (as he then was) in the case of Lamberton - and correctly so in my opinion, albeit Sheriff Principal Caplan then went on to reach the same result as Sheriff Principal Gimson which has now been departed from generally. Sheriff Principal Bowen had reservations about the application of section 27(b) to only one of Maclaren's categories but I have no difficulty with the proposition that a proper distinction can be drawn, in accordance with Maclaren's categories, for the purpose of interpreting section 27(b) between decrees for payment making an interim provision pending final determination of the merits and those decerning at an interim stage for payment of part of the sum claimed to be finally due. It was submitted to me for the appellant that if section 27(b) had been intended not to cover interim payment of money under certain types of order (such as orders under section 2(4)(b) of the 1981 Act with which we are here concerned) then it should have said so or been amended to say so expressly but in my view the cases above referred to on the appealability of decrees for interim aliment demonstrate that such an approach has been long departed from.

Of all the pronouncements in the line of cases referred to above the one which impresses itself most on my mind is that of Sir John Dick QC, Sheriff Principal of Glasgow and Strathkelvin in the case of Cassidy where he said (as usefully summarised by my predecessor, Sheriff Principal RC Hay, in the case of Hulme) that money paid by way of interim aliment pendente lite is not simply equivalent to money put in the pocket of one of the parties, who may spend it before the ultimate issue of the case, but is money awarded at the discretion of the court necessarily to support a party pending the decision of the case on the merits, and that it is the very nature of the obligation which points to the incompetency of appeal without leave. This view is consonant with the approach of the learned nineteenth-century judges of the Court of Session in the three cases of Baird v Glendinning (1874) 2 R 25, Sinclair v Baikie (1884) 11 R 413 and Maxton v Bone (1886) 13 R 912 where they considered the statutory predecessors of section 28(1)(a) of the 1907 Act: Lords Shand and Adam in the case of Maxton point to the importance of money being "put into the pocket" of a party by the interim decree sought to be appealed. Sheriff Principal Bowen expressed himself in the case of Irving (at 375D) as being attracted to Sheriff Principal Dick's point that the underlying nature of the obligation must be looked to but where I respectfully part company from my learned colleague in Glasgow is in the consequence thought to flow from so doing. Sheriff Principal Bowen in his final paragraph takes the view that an order under section 2(4)(b) of the 1981 Act requires to be distinguished from an order to implement an obligation of aliment but I have to say that I find myself unable to agree.

The question then comes to be what indeed is the nature of an obligation imposed by an order under section 2(4)(b) of the 1981 Act? It does seem to me that payments under such an order partake so closely of the nature of payments under an order for interim aliment that no meaningful distinction can properly be drawn between them and they must be accorded the same treatment. I observe in the first place that such an order is clearly of an interim provisional nature in the present context of an action of divorce, which it seems to me is likely to be the most common or certainly a very common context, namely a divorce action between a married couple having a house jointly owned and mortgaged whose separation raises the question who is to fund the continuance of the roof over the family's head until the financial arrangements between them are determined at final decree dissolving the marriage. Such an order can operate only between spouses so that in a divorce action any such order must be viewed as one for interim provision. In the second place such an order is manifestly in my opinion part and parcel of a husband's continuing obligation to support those with whom he recently lived in family who still are his family: until divorce supervenes he remains obliged to support each of them, including the wife who is often unable to provide the necessary support by herself, and as part of that obligation to maintain the roof over their heads. In the third place an order under section 2(4)(b) of the 1981 Act is very far from the situation contemplated by the nineteenth-century judges above referred to of a fund being placed in the pocket of a party who is then free to dissipate it before final judgement determines whether it was truly due. Instead the payment here ordered is to be direct to the heritable creditor and goes to assist the preservation of an asset belonging to both parties for distribution at any final judgement made on financial provision at the divorce. The whole scheme of the modern law of financial provision on divorce is geared to a decision being taken at the end by the court (if parties do not settle their differences) which takes account of all financial matters including who paid what to maintain the mortgage payments pending a final sale or transfer of the house at or after divorce. There is therefore no real prospect of sums being lost or dissipated and they will instead remain "on the balance sheet", so to speak, to be weighed in the final reckoning. In light of these considerations an order under section 2(4)(b) of the 1981 Act in the context of a consistorial action such as the present is in my opinion truly an interim provision of an alimentary nature.

It is I think worthy of note that although these matters were not argued before him this was exactly the approach taken by the sheriff to the decision(s) he had to make on the motion number 7/1 of process as presented to him. Although the motion as lodged was in more than one part the sheriff, as can be seen from his note of 19 September, clearly viewed the issue before him as a whole as a "motion for interim aliment", as stated by him at the outset. He then dealt with the matter as a single question of how much the defender ought to be required to pay overall and came to a figure of £800 per month. From his final paragraph it appears that he would moreover have awarded a global sum, as requested, and only felt constrained to do otherwise by the manner in which the craves had been framed. He perceived himself to be (in his words) ordering "a fair contribution ad interim to meet the pursuer's needs in her present circumstances". This global approach, with a division at the end to satisfy the terms of the craves, is beyond criticism and is a practical demonstration of the true view that the order under section 2(4)(b) of the 1981 Act is as much an interim provision of an alimentary nature as the order for payment of interim aliment itself.

For these reasons I feel it necessary to differ respectfully from Sheriff Principal Bowen although it is perhaps not fully clear from the brief report of the case of Irving what were all the circumstances of that case beyond the facts that it was a family action containing two craves only, namely (i) the crave for a section 2(4)(b) order to pay the mortgage instalments and (ii) a crave for expenses. In any event I reach the conclusion here that, certainly in the circumstances and context of the present action, the order made by the sheriff's interlocutor of 28 August for payment of £200 per month to the Bank of Scotland as heritable creditor was one appealable only with his leave. Such leave having been neither sought nor granted the appeal as a whole is rendered incompetent for the lack thereof and falls to be dismissed.

As to the expenses of the appeal I was advised that both parties had the benefit of legal aid, each with a nil contribution, for the purposes of the appeal. Nevertheless it became apparent after some discussion that there were concerns requiring investigation as to the attitudes which might be adopted by SLAB later on in the proceedings if either (a) no award of expenses were made in favour of the pursuer and respondent or (b) a motion for the defender and appellant for modification of any liability in expenses to nil were made and granted. It was therefore agreed that expenses should meantime be reserved while these matters were looked into and, it is to be hoped, resolved.

APPENDIX OF AUTHORITIES REFERRED TO:-

Maclaren, Court of Session Practice, pp 1090 and 1091;