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Cite as: [2003] ScotSC 18
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Weir v. Kirk [2003] ScotSC 18 (14 March 2003)
LINLITHGOW A403/02
JUDGMENT OF
SHERIFF PRINCIPAL IAIN MACPHAIL QC
in the appeal
in the cause
ELIZABETH ANNE WEIR or KIRK
Pursuer and Respondent
against
ROBERT KIRK
Defender and Appellant
_________________________
Act: Cockburn; Cockburn McGrane
Alt: Travers; Russel & Aitken, Falkirk
EDINBURGH, 14 March 2003
The Sheriff Principal, having resumed consideration of the cause, allows the appeal; varies the interlocutor of 4 December 2002 complained of by deleting therefrom the words 'backdated to 13 November 2002'; finds the pursuer and respondent liable to the defender and appellant in the expenses of the appeal; allows an account thereof to be given in and remits the same to the Auditor of Court at Linlithgow to tax and to report; remits the cause to the Sheriff to assign a fresh diet for the proof allowed by the interlocutor of 21 August 2002, and to proceed as accords.
NOTE
[1] This is a wife's action of divorce in which the Sheriff on 4 December 2002 made an award of interim aliment and backdated it to 13 November 2002. The defender moved for leave to appeal, but the Sheriff refused the motion. The defender nevertheless marked this appeal. The appeal is taken against the backdating of the award and not against the amount awarded. The defender contends that the appeal is competent because it is taken against an interlocutor which is incompetent in respect that the Sheriff had no power to backdate the award of interim aliment. The pursuer, on the other hand, contends that the Sheriff did have such power and accordingly his interlocutor is competent, while the appeal is incompetent in respect that it is brought without leave.
[2] The pursuer lodged a motion for interim aliment at the rate of £500 per month (no 7/5 of process). The motion called on 6 November 2002 but Sheriff Inglis on joint motion continued consideration of it until 13 November 2002. On 13 November Sheriff Gillam, on the defender's opposed motion, continued consideration of the pursuer's motion once more, until 20 November. On that date, however, the defender's solicitor withdrew from acting and Sheriff Maclean fixed a peremptory diet for 4 December and continued consideration of the motion until then. On 4 December Sheriff Muirhead awarded aliment of £300 per month, backdated to 13 November, and refused the defender's motion for leave to appeal.
[3] In his note written for the purposes of the appeal Sheriff Muirhead explains that he backdated the award to 13 November 2002 since that was the date when the defender's solicitor conceded he should have been in a position to deal with the motion. He records that Sheriff Gillam, who had presided on 13 November, had made it clear that one reason why he was prepared to grant the defender's motion for a continuation was that any award made later could be backdated. Sheriff Muirhead states that he was not sure that backdating was competent but in the time available he had not found any clear authority on the matter. He decided to grant the motion on the ground that common sense suggested that the award in this case should be backdated to 13 November since backdating would remove the prejudice caused to the pursuer by the continuation of the motion on that date and since the continuation had been granted on the unchallenged assumption that the award could be backdated. The Sheriff also explains that he refused leave to appeal because only a comparatively small sum was at stake, the proof was to take place some two weeks later on 17 and 18 December, and he was concerned that the defender might be trying to delay the progress of the case.
[4] At the hearing of the appeal the defender's solicitor argued that it was incompetent to backdate an award of interim aliment unless the parties agreed to that course. Since the interlocutor was incompetent, leave to appeal was not required. He also outlined, but did not develop, an argument that the Sheriff's interlocutor had been final and was thus appealable without leave. He did not cite any authority.
[5] For the pursuer it was submitted that where a motion for interim aliment had been continued, it was competent to backdate the award to the date when the motion had first called, although not to any earlier date. The pursuer's solicitor, who is an experienced family law practitioner, advised me that in practice awards of interim aliment were regularly backdated to that extent. Here, the award had been backdated to 13 November, the date of the calling at which the defender's solicitor should have been in a position to address the court fully on the motion. That was in accordance with the practice described, which was not prohibited by any authority. She referred to McColl v McColl 1993 SC 276 and Adamson v Adamson 1996 SLT 427. She further argued that, even if the Sheriff's interlocutor was incompetent, I was not entitled to interfere with it. It did not fall within any of the categories of appealable interlocutors set out in section 27 of the Sheriff Courts (Scotland) Act 1907, and it was not clear that a Sheriff Principal had jurisdiction to set aside any other interlocutor on the ground that it was incompetent. She cited Gupta v Gupta's Trustee 1994 SC 74, Ampliflaire Ltd v The Chisholme Institute 1995 SCLR 11 and Gupta's Trustee v Gupta 1996 SC 82.
[6] The first question for decision is whether the Sheriff was entitled to backdate the award of interim aliment. In my opinion Adamson is binding authority for the proposition that it is incompetent to backdate an award of interim aliment. In the sheriff court Sheriff Principal Maguire, QC, varied an interlocutor of 25 August 1993 which had made a backdated award by deleting the order for backdating, the parties having agreed that backdating of an award of interim aliment could only take place by the consent of parties, which had been lacking in that case (1995 SLT (Sh Ct) 45 at 46C-E). In the opinion of the Extra Division the Court said (1996 SLT 427 at 427G-H):
'Counsel for both parties to the appeal agreed that it was incompetent in an interlocutor awarding interim aliment to include a provision for backdating: McColl v McColl. We agree that the interlocutor of 25 August 1993 was incompetent in this respect.'
[7] In the absence of detailed argument I do not think it would be appropriate to explore the matter further. Suffice it to say that the court had no power at common law to backdate an award of interim aliment. 'The power to backdate is an entirely new concept, which depends upon the powers given to the court by the 1985 Act': McColl at page 286H. The Family Law (Scotland) Act 1985 gives the court limited powers to backdate an award of aliment (section 3(1)(c)) and to backdate an order varying or recalling a decree of aliment (section 5(4)); but in these provisions 'aliment' does not include interim aliment (section 27(1)). The Act does not give the court these powers in relation to awards of interim aliment: section 6 allows the court to vary or recall such awards, but not to backdate them: Wilkinson and Norrie, Parent and Child (2nd edn) page 426, para 13.39. There may be much to be said on commonsense grounds for the practice described by the pursuer's solicitor and for the course taken by the Sheriff in this case, but in the absence of statutory authority to backdate I am constrained to hold that the Sheriff's backdating of the award was incompetent. I should add that I have difficulty in seeing how an agreement between the parties that an award should be backdated could confer on the court a power which it does not possess at common law or by statute.
[8] If the Sheriff's interlocutor is incompetent, the next question is whether I have power to entertain this appeal. Clearly I have no power to do so by virtue of section 27 of the 1907 Act since the interlocutor is not among those against which the section provides that an appeal to the Sheriff Principal is competent. But is the right of appeal from a Sheriff to the Sheriff Principal limited by statute? Two recent decisions of the Inner House suggest differing answers to that question. In Gupta v Gupta's Trustees 1994 SC 74 the Second Division said (at page 75E-G):
'. . . the pleas-in-law make it plain that the petitioner's contention is that the sheriff principal possesses power at common law to review an incompetent interlocutor pronounced by a sheriff, and to recall such an interlocutor. It may be that the petitioner is suggesting that the sheriff principal is entitled to exercise a supervisory jurisdiction in respect of decisions of sheriffs. So far as administrative decisions are concerned the Court of Session has a supervisory jurisdiction over decisions of administrative bodies, but that supervisory jurisdiction is privative to the Court of Session and is not shared by the sheriff court (Brown v Hamilton District Council 1983 SC (HL) 1, per Lord Fraser of Tullybelton at page 44). A sheriff principal has no supervisory jurisdiction at common law over judicial decisions by a sheriff. Rights of appeal against decisions of sheriffs are regulated by statute.'
[9] In Gupta's Trustee v Gupta 1996 SC 82 at page 84, however, the Second Division cited with apparent approval the following sentence from the first edition of Macphail, Sheriff Court Practice page 598, para 18-12 which occurs in the section of the work dealing with appeals to the sheriff principal:
'Notwithstanding the absence of express statutory provision, an appeal is competent without leave against an interlocutor which is incompetent in the sense that the sheriff had no power or right to pronounce it.'
The Court observed:
'The passage in Macphail founded on makes it clear that it is not in all cases of appeal against competency that an appeal is competent without leave but only in those in which the sheriff "had no power or right to pronounce" the interlocutor sought to be appealed against.'
The Court went on to consider the proposition in relation to the pre-eminent power of the Court of Session to rectify an injustice so caused by a sheriff and questioned whether the exercise of the power could only now be invoked by judicial review.
[10] Since what the Court said in the final sentence of the passage quoted from Gupta (1994) cannot be reconciled with its apparent acceptance of paragraph 18-12 of Macphail in Gupta (1996), I am faced with two Inner House decisions which give conflicting guidance. It is not clear how best to address this problem. It appears that where the rationes decidendi of two decisions of the Judicial Committee of the Privy Council conflict with one another, a lower court which is bound by decisions of the Judicial Committee may choose which ratio decidendi it will follow and in doing so it may act on its own opinion as to which is the more convincing: Baker v The Queen [1975] AC 774 at page 778D-E. In the present case the conflict between the Gupta decisions is between dicta rather than rationes decidendi, but it would be difficult to perform a similar exercise in the absence of argument. I would only observe, with great diffidence, that Gupta (1994) was an extempore judgment delivered in the single bills after an argument in which the appellant was a party litigant and there was scant reference to authority. The Court was not referred to paragraph 18-12 of Macphail or, much more importantly, to the authorities cited in support of it. In Gray v Gray 1996 SCLR 531 Sheriff Principal Maguire, QC, described Gupta (1994) as 'a somewhat bizarre case' and 'special', and did not follow it. Gupta (1996), however, is not a clear guide to the solution of the question in this case. The Court was not referred to its decision in Gupta (1994) or, apparently, to much other authority. Again, the same appellant was a party litigant and the judgment was unreserved. It must also be noted that in Gupta (1996) the Court was not directing its attention to the appellate powers of a sheriff principal.
[11] The only other recent dicta on this matter to which I was referred were those of Sheriff Principal Nicholson, QC, in Ampliflaire Ltd v The Chisholme Institute 1995 SCLR 11, a case decided after Gupta (1994) but before Gupta (1996). The learned Sheriff Principal said (at page 12D-F):
'In support of the proposition that a sheriff principal has an inherent right at common law to review an incompetent interlocutor, the solicitor for the pursuers referred to Macphail, Sheriff Court Practice, at paragraph 18-12, and to the case of Brown v British Rail Property Board 1983 SLT (Sh Ct) 19. He did not, however, make any reference to more recent cases on this subject such as VAG Finance Ltd v Smith 1988 SCLR 598, 1988 SLT (Sh Ct) 59 in which Sheriff Principal (as he then was) Caplan reviewed all the authorities on this topic, or Gupta v Laurie [ie Gupta (1994)]. For my part I am not at present persuaded that a sheriff principal's entitlement to review interlocutors which are said to be incompetent is quite as clear cut as appears to be suggested by Macphail in the passage cited above.'
[12] The learned Sheriff Principal's final sentence is a source of further embarrassment because I have the misfortune to disagree with it. In ordinary circumstances courtesy and good sense would require that a difference of view from my learned predecessor on so fundamental an issue as the nature and extent of the appellate jurisdiction of a sheriff principal should be justified by a careful analysis of the authorities. Such an analysis, however, is best undertaken after hearing full argument, an advantage which I have not enjoyed in this case. I shall therefore say little more than that, having reconsidered the matter, I believe that the statement in paragraph 18-12 of the first edition of Sheriff Court Practice is supported by Archer's Trustees v Alexander & Sons (1910) 27 Sh Ct Rep 11; Maxwells (Dundee) Ltd v Adam 1911 2 SLT 149; Sydie v A A Stuart & Sons (Contractors) Ltd 1968 SLT (Sh Ct) 93 at page 95; McKenzie v John R Wyatt (Musical Enterprises) Ltd 1974 SLT (Sh Ct) 8; Mackays v James Deas and Son Ltd 1977 SLT (Sh Ct) 10; Appleyard (Aberdeen) Ltd v Morrison 1979 SLT (Sh Ct) 65; Brown v British Rail Property Board 1983 SLT (Sh Ct) 19 and VAG Finance Ltd v Smith 1988 SCLR 598, 1988 SLT (Sh Ct) 59.
[13] In the absence of full argument I shall adopt as my own view the opinion of Sheriff Principal Caplan in VAG Finance Ltd. Having been afforded an ample citation of authority, the learned Sheriff Principal said (at pages 61B-I, 600):
'It is of course true that both the sheriff principal and the Court of Session have appeal powers at common law which are additional to those conferred by sections 27 and 28 of the 1907 Act. The terms of the provisions in question are empowering rather than exclusive. Whereas they govern appeals falling strictly within their ambit they have been interpreted as not being intended to affect certain categories of appeal. It is clear that the sheriff principal has at common law a power to correct an interlocutor of the sheriff which is incompetent. In this respect in relation to the ordinary civil jurisdiction of the sheriff I have seen nothing to suggest that the power of the sheriff principal is essentially different from that of the Court of Session. If the question were one of compelling the inferior judge to carry out a function then the Court of Session's jurisdiction would be exclusive but that is a different matter. However in respect of irregular interlocutors one has to look to the authorities to discover what residual common law appeal powers the sheriff principal or the Court of Session, as the case may be, retain and are prepared to exercise. In my opinion there is an essential difference between an interlocutor which is competently pronounced on a competency question and one which, whether it deals with competency or some other matter, is itself incompetent because the sheriff had no power to pronounce it. It seems to me that all the cases to which I was referred which demonstrate the superior court's right to deal with an incompetent interlocutor are dealing with the latter kind of interlocutor. In this respect I can derive considerable assistance from the analysis of case law by Sir Allan Walker, QC, in McKenzie v John R Wyatt (Musical Enterprises) Ltd 1974 SLT (Sh Ct) 8. The learned Sheriff Principal shows I think that the earlier cases which are relevant all involve the sheriff pronouncing an interlocutor which exceeds his powers. The later case of Lord Advocate v Johnston 1983 SLT 290 is in the same position for the sheriff exceeded his jurisdiction by allowing a period for amendment although no motion to that effect had been made to him. All of the cases referred to in McKenzie, as well as Lord Advocate v Johnston, have in common that the appeal court took exception to the interlocutors pronounced because of their intrinsic deficiency without requiring to enter into the merits of the original judge's decision. . . . It seems that the residual appeal jurisdiction of the appeal court which overrides the appeal provisions of the 1907 Act is based on the principle that appeal must always be available when an incompetent interlocutor exists for such interlocutor has no power or effect and its continued existence merely distorts the litigation. That is to say when the original judge pronounces an interlocutor which gets the litigation completely off the rails the appeal court may intervene promptly to set the case on the right track again. On the other hand when the question is whether a particular interlocutor in itself regular is ill founded then the interlocutor in question should be tested under the normal appeal rules as governed by statute.'
[14] In the present case the interlocutor of 4 December 2002 is incompetent because the Sheriff had no power to pronounce it insofar as it purported to backdate the award of interim aliment. I consider that since, in backdating, the Sheriff exceeded his powers, I have power at common law to correct his interlocutor, and leave to appeal is not required. I have therefore varied the interlocutor by deleting the words 'backdated to 13 November 2002'.
[15] This appeal perhaps demonstrates the usefulness of the common law power of a sheriff principal to intervene when an incompetent interlocutor is pronounced. It would appear to be in the public interest that such an interlocutor should be capable of correction by the simple process of a comparatively quick and inexpensive appeal.
[16] The parties were agreed that the expenses of the appeal should follow success.