Scottish Sheriff Court Decisions

JEREMIAH GERARD O'SULLIVAN v. JASMINE MARGARET HELEN SLATER OR O'SULLIVAN [2001] ScotSC 11 (18th April, 2001)

Act: Kelly, Mackenzie & Grant, Forres

Alt: Mackenzie, Advocate, Instructed by Carruthers & Co, Lerwick

Aberdeen: April 2001

The Sheriff Principal having resumed consideration of the appeal allows same; recalls the interlocutor of the sheriff dated 28^th November 2000 in which he approved the specification of documents (no. 15 of process) and granted commission for the recovery of the communications referred to therein; finds the defender and respondent liable as an assisted person to the pursuer and appellant in the expenses of the appeal; allows an account of expenses to be given in and remits the same when lodged to the Auditor of Court to tax and to report; remits the cause to the sheriff to proceed as accords.

NOTE:

This is an ongoing action of divorce on the ground of five years non-cohabitation. The defender seeks an order for payment of a capital sum. The proof commenced on 14 November 2000. On that date the pursuer gave evidence. At the conclusion of his evidence his case was closed. The proof was adjourned until 28 November for further evidence to be led. In the intervening period the defender lodged a motion for commission and diligence to recover the documents referred to in the specification of documents (no 14 of process). That motion called in court on 24 November and was adjourned until 28 November to give the pursuer an opportunity to oppose it. On 28 November, having heard counsel for the defender and the agent for the pursuer, the Sheriff granted the motion. In terms of that motion the defender sought to recover files and documents formerly in the hands of Mr C J Dowle, the former solicitor for the pursuer, showing or tending to show whether or not Mr Dowle or anyone acting on his behalf informed the pursuer that the form of consent to divorce signed by the pursuer in about March 1988 had not been allowed by the court to be lodged in process and that another such form of consent signed by the pursuer was required. The sheriff approved the specification of documents to the extent of allowing recovery of "any communication passed by Mr Dowle to the pursuer regarding the necessity for the pursuer to sign a consent form further to that dated prior to the basis of the earlier action being amended". It appears from the sheriff's note that in the course of the evidence the pursuer was asked whether he had ever been asked by his then solicitor to provide an up to date consent form and that he denied in cross-examination that he had ever been asked for that. The Sheriff granted commission and diligence to that extent because credibility is very much in issue. He considered that any documents which may be recovered may not be covered by confidentiality. He granted leave to appeal. On that date in a separate interlocutor he granted decree of divorce. Thereafter a note of appeal was lodged in which the pursuer asserts that the Sheriff misdirected himself in law in granting the defender's motion on the basis that the purpose of the commission and diligence was to discredit the pursuer by attacking his credibility.

The documents sought would be covered by confidentiality. The application had come too late. It was not appropriate to grant an application of that sort whose sole purpose was to discredit the evidence of the pursuer given in cross-examination. Sheriff Principal O'Brien in Scottish Omnibuses Limited v William Gillies, unreported, Dumbarton, 16^th February 1978 had said that there was no authority for granting diligence where the real purpose of that diligence was not to prove a crucial averment but to discredit a witness who had given evidence contradictory of the other party's case. Anderson v Lord Elgin's Trs (1859) 21D 654. The pursuer had said that he had received no correspondence from his agent as averred by the defender. That correspondence related to an earlier action between the parties which had now been abandoned, after having been sisted for about ten years. This call would not produce evidence which was relevant to the present action. See British Publishing Company Limited v James Hedderwick & Sons (1892) 19R 1008, McSporran & Young: Commission and Diligence at para. 3.24, Baroness Gray v Richardson (1874) 1R 1138. The issue which the court had to resolve, when confronted with an application of this sort, was whether the documents would enable the court to determine the case which was before it. The issues here were concerned with the financial arrangements between the pursuer and the defender and, in particular, whether the pursuer had paid aliment to his wife. These documents had no bearing on the issues before the court. The appeal should be allowed.

The first action of divorce had been raised in 1986. Negotiations had taken place. Thereafter the ground of divorce had been amended and a form of consent obtained. A joint minute was entered into but the terms of that joint minute had not been implemented. The joint minute had included provision for aliment to be paid by the pursuer in the present action. He was to lodge a consent form. He had completed a consent form in late 1988, prior to the amendment of the ground of divorce. That consent form had not been accepted by the court. The position of the present defender was that the pursuer had been asked repeatedly to lodge a further consent form but none had been produced until 1998. A principal issue in the present action was whether the agreement set out in the joint minute, which had been signed in the course of the previous action of divorce, remained valid and binding upon the parties. If it did the defender in this action would be barred from claiming a capital sum. What had happened in the previous action was relevant for that reason. The position of the defender was that since the pursuer had failed to produce the consent form for which he had been asked the agreement recorded in the joint minute was no longer binding.

The pursuer had completed his evidence. During his evidence serious issues of credibility had arisen. The defender had not yet commenced her evidence. In the course of his evidence the pursuer had said that he had given a plot of land in Shetland to the defender, that he had regularly paid her aliment in cash and that he had made other payments to her in cash and in kind. These were all matters which were disputed by the defender. These matters would be resolved one way or another by the assessment which the sheriff made of the relative credibility of the pursuer and the defender. Whether an order for payment of a capital sum should be made turned on that. It was being suggested that the pursuer had deliberately withheld the consent form in order to avoid a legal obligation to pay aliment. He claimed that he did not know that a fresh consent form had been required. The file which the defender sought to recover was now in the hands of the pursuer's present solicitors. Production of the relevant entries from that file might demonstrate that the pursuer was telling the truth, or that he was telling a blatant lie, when he denied that he had been asked to sign a fresh consent form. The sheriff recognised that that factor might play a considerable part in determining the outcome of the whole case. It was intended to call Mr Dowle as a witness but it was not known what he was likely to say. He might claim confidentiality on the basis that the documents concerned were prepared for the purpose of litigation. The file should be before the court, subject to questions of confidentiality, so that Mr Dowle could refer to it.

It was competent to grant commission and diligence during the course of a proof. See Macphail Sheriff Court Practice, Second Edition, para. 15.59. Whether diligence should be allowed at such a stage was a matter for the sheriff's discretion. In this case the sheriff had ample material to justify granting the motion for commission and diligence. It could not be said that no reasonable sheriff would have granted the motion. In the Scottish Omnibuses case the proof had been closed. The defender's new position in that case had not been put to the witnesses concerned. In the present case the pursuer's case had been closed but the defender's case had yet to open. The defender's position had been put to the pursuer. Discrediting the pursuer in this action was not a mere side issue. The pursuer had not averred on record that he was not told of the need to sign a fresh consent form. That matter should have been pleaded by him. This matter could be verified by reference to the contemporary documents. The best evidence should be available to the court. The appeal should be refused.

In the determination of this appeal this court is dependent on the note from the sheriff and the submissions for the parties to the appeal. It is certainly very unusual, if not unprecedented, for a commission and diligence to be granted in the course of a proof for the purpose of recovering documents designed to discredit the evidence of a witness whose evidence has already been completed. In the normal course of events, assuming that it was competent to recover documents designed solely to discredit a witness, any commission and diligence would have to be granted prior to the proof so that the documents would be available in time. I have difficulty understanding how such documents could properly be used to impugn the credibility of a witness whose evidence has been completed. I would expect any such documents to be put to the witness during the course of his or her evidence. That has not happened. It has long been regarded as well settled that documents may not be recovered purely for the purpose of cross-examination. See, for example, French v Purnell 1931 SLT 85. For these reasons, on the face of it, it is difficult to see what justification there could be for the sheriff's decision.

In condescendence 4 the pursuer avers that by letter dated 19^th December 1988 the defender's agents wrote requesting the execution of a fresh consent. The terms of that and later letters from the defender's agents are incorporated into the pleadings. These letters are referred to in the context of averments to the effect that the defender's agents accepted the pursuer's proposals for settlement and that the defender is personally barred from seeking to make any financial claims in the present action. Later in condescendence 4 the pursuer avers that the agreement reached was legally binding and remains so, that consent was produced and that the fact that the defender's agents failed to make appropriate arrangements to finalise matters is an issue for the defender to resolve with her agents. The pursuer goes on to aver: "Steps were taken to finalise the divorce in 1995 when the pursuer realised matters had not been completed, the letter of consent to be re-dated was never received by the pursuer from his then agents." In the defences, on the assumption that the agreement reached in relation to the earlier action of divorce was legally binding at the time when it was entered into, it is averred that it was a term of the agreement that the pursuer would consent to be divorced on the ground of two years separation and that it was an implied term of the agreement that he would lodge in process a valid form of consent within a reasonable time. The defender avers that a reasonable time would have been within no more than six months. She avers that the pursuer was repeatedly called upon to produce a new form which the court would accept but that he did not do so until about October 1998, by which time the children were no longer eligible for aliment in terms of the agreement. The pursuer has a general denial of these averments. The fourth plea-in-law for the pursuer is to the effect that the defender is barred by her actings from maintaining the present action in relation to the financial craves.

In the Scottish Omnibuses case, supra, the Sheriff refused to grant commission and diligence after the pursuers' case had closed and much of the defender's evidence had been led. He did so because its purpose was to strengthen an argument about creditability and because the pursuers would not have an opportunity to respond unless there were to be a proof in replication. On appeal Sheriff Principal O'Brien said this: "The allowance or disallowance of a commission and diligence at any stage of an action is a procedural matter peculiarly appropriate for the judge of first instance, not least where the matter arises for the first time in the course of a proof. This being so I should be most reluctant to interfere with the discretion of a sheriff on a procedural matter of this kind unless I were satisfied that he was clearly wrong. In this case I have read the careful Note appended to the sheriff's interlocutor, and find myself in full agreement with it. As the sheriff points out, the real purpose of the proposed diligence is not to prove a crucial averment but to discredit a witness who has given evidence contradictory of the defender's case. I know of no authority to warrant a diligence to recover documents for this purpose. As I understand it, documents may be recovered in order to assist in proving a party's averments on record. It is well settled that they may not be recovered merely for use in cross-examination (Dobie page 195), and although they would now come too late for that purpose I cannot see that they may be recovered in order to impugn the credibility of a witness to whom they were never put."

I agree with Sheriff Principal O'Brien that a court on appeal should not interfere with the exercise of a discretion by a judge of first instance in a matter of this kind, particularly where the issue first arose during a proof, unless there is clear reason to do so. If the justification for the recovery of these documents is solely in order to impugn the credibility of the pursuer, it is difficult to avoid the conclusion that this is a case in which interference with the sheriff's discretion would be justified. The issue of confidentiality does not arise at this stage. It could be that confidentiality would be claimed in respect of some or all of the documents falling within the call in the specification. If it was, the sheriff would have to determine that matter during the course of the proof.

On the basis of the pleadings in this case it would have been possible to recover the documents which it is now sought to recover prior to commencement of the proof. The defender avers that the pursuer was repeatedly called on to produce a new consent form. The pursuer denies that averment. It appears that no attempt was made to recover documents in connection with that disputed averment. It was not suggested during the hearing of the appeal - nor does it seem to have been suggested to the sheriff - that the purpose of the present commission was to enable the defender to establish that averment. Nor was it suggested during the hearing of the appeal that these documents are required to enable the court to reach a decision at the conclusion of the proof as to whether the agreement entered into between the pursuer and the defender remains binding upon them. On the contrary it was contended, both before the sheriff and on appeal, that these documents were required to enable the sheriff properly to assess the credibility of the pursuer. The sheriff has the advantage, which this court could never have, of having heard the evidence so far led. He appears to be of the opinion that the documents sought could materially affect his assessment of credibility and thus the outcome of the case. He recognises that that would only be one element in the assessment of credibility. He felt on balance that he should grant commission so that a fuller assessment might be made of credibility. Whether it could affect that assessment or not would depend to some extent on whether there are any documents which could be produced and competently considered by the court. It is difficult to see how any material which was recovered could be fairly put before the court, having regard to the fact that the pursuer's case is now closed and it is now too late to put any material which might be recovered to the pursuer. I recognise that, if such material were to be recovered, the sheriff might accede to a motion on behalf of the pursuer to recall him as a witness. I am reluctant to interfere with a matter which is within the discretion of the sheriff, particularly where the sheriff has had an opportunity to hear the evidence so far led. However, I have come to the conclusion that in this case the sheriff was wrong to have granted commission and diligence for recovery of documents whose sole purpose was to test the credibility of the pursuer at a time when the pursuer's case had closed and it was no longer possible to put any such documents to him. For these reasons I am of opinion that the appeal must succeed.

So far as expenses are concerned, the agent for the pursuer moved that expenses should follow success. Counsel for the defender invited the court to find no expenses due to or by either party in the event that the appeal succeeded. The defender is an assisted person. I have found her liable in expenses on that basis.