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Cite as: [2003] ScotSC 42

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Best v. Waudby [2003] ScotSC 42 (09 July 2003) SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT PETERHEAD

A209/99

		JUDGEMENT of SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC
		in the cause
		JOSEPH ANDREW BEST
		Pursuer and Respondent
		against
		CHERYL WAUDBY or BEST or WATT
		Defender and Appellant

Act: Mr Adams and Miss Harvey, solicitors, Stewart & Watson, Peterhead

Alt: Mr Macgregor, solicitor, Gray & Gray, Peterhead

Peterhead: 9^th July 2003

The sheriff principal, having resumed consideration of the cause, refuses the appeal and adheres to the interlocutor of the sheriff dated 7^th January 2003; finds no expenses due to or by either party in respect of the appeal; quoad ultra remits to the sheriff to proceed as accords.

Note

This is an appeal by the defender and appellant against the sheriff's decision on 7^th January 2003 to find her liable to the pursuer and respondent in 40% of the taxed expenses of the cause. In the amended grounds of appeal (see no. 24 of process) it is said that the sheriff exercised his discretion when dealing with expenses in an inappropriate or unreasonable manner on the basis of a variety of considerations which are set out in eleven numbered paragraphs which I need not repeat here. In the twelfth and final paragraph it is said that:

In all the circumstances above, the sheriff exercised his discretion in an unreasonable manner and esto the defender was not entitled to expenses the matter should have been dealt with by way of no expenses due to or by either party.

The sheriff explained why he came to award 40% of the expenses to the pursuer as he did in a note dated 14 January 2003 which he wrote in response to the defender's original grounds of appeal (see no. 23 of process), and he helpfully prepared an additional note dated 18 March 2003 in response to the amended grounds of appeal. Again it is unnecessary that I should repeat here the terms of these two notes.

At the hearing of the appeal the defender was represented by Mr Macgregor, solicitor, and the pursuer by Mr Adams and Miss Harvey, both solicitors. The majority of the submissions for the pursuer were presented by Miss Harvey, and Mr Adams addressed me only very briefly, chiefly on the matter of the expenses of the appeal.

Opening the appeal, Mr Macgregor explained that it was directed only against the sheriff's decision on the matter of expenses. No appeal had been taken against his decision on the merits of the action. This had concerned the two children of the former marriage between the parties. The pursuer had originally sought an order for contact with these two children every second weekend between 6.00 pm on Friday and 6.00 pm on Sunday and on the Saturday of each intervening weekend between 11.00 am and 6.00 pm. In addition he had sought contact with the children on a residential basis during part of their school holidays. All the contact thus sought by him had been upon an unsupervised basis. The action had been raised in 1999 and had eventually come to proof in 2002. Before this there had been numerous child welfare hearings, but at none of these had an interim contact order been made in favour of the pursuer. At one particular child welfare hearing held on 3^rd October 2001 the parties had agreed that the pursuer should have contact with the children once a fortnight at the Peterhead Family Centre. But no interim order to this effect had been thought necessary, and none had been made. This had remained the position until the proof itself. Prior to the commencement of the proof the defender (who was not legally aided) had had discussions with his (Mr Macgregor's) partner Miss Wiggins to see whether a settlement could be agreed with the pursuer. This had been done since it had been clear that the proof would not be brief -in the event it had occupied three days of evidence. It had been suggested to his solicitor that the pursuer could have contact with the two children every second weekend under the supervision of his mother. It had been the intention of the defender that, if the matter proceeded to proof, this offer would be founded upon in the event of an argument on the question of expenses. It was accepted that, as the sheriff had stated in his note, it was not appropriate to lodge a tender in family proceedings. Nonetheless, the order for contact which had eventually been made by the sheriff in terms of his interlocutor dated 16^th December 2002 had been very much upon the lines of what the defender had offered to the pursuer prior to the proof. In addressing the sheriff on the question of expenses, Miss Wiggins' primary submission had been that the defender had had effectively more success in the action than the pursuer and that she should accordingly be founded entitled to the expenses of the action. He had originally sought a substantial amount of residential contact with the children but in the event had been found entitled to limited supervised contact - and here it was to be observed that there was no suggestion in the sheriff's judgement that the supervision should be restricted to a particular period of time. Miss Wiggins' alternative submission had been that there should be no expenses found due to or by either party.

Mr Macgregor continued by observing that the pursuer had been legally aided while the defender had not been. He acknowledged that this did not affect the exercise by the sheriff of his discretion in the matter of expenses. When considering this question the sheriff, so it was argued, should have taken more cognisance of the fact that it had been admitted by all parties that there had been an offer prior to proof to settle the matter. This offer having been rejected, the defender had had no alternative but to proceed to proof. Mr Macgregor referred here to a case in the Court of Session (the name or citation of which he was unable to give me) in which a similar argument had been put forward, namely that as a result of the refusal by the husband to settle the action the wife had had no alternative but to go to proof. The judge in that case had said that this was very much a factor that could be taken into account in determining the matter of expenses. In the event in that case the expenses prior to the proof had been split equally between the parties and the husband had been found liable for the expenses of the proof itself. It was accepted that in the present case Miss Wiggins had been a bit presumptuous (sic) in seeking the expenses of the whole action. But in the circumstances no expenses should be found due to or by either party in respect of the proceedings prior to the proof and the defender should be found entitled to the expenses of preparation for and attendance at the proof. She had effectively beaten the tender which had been made by her in the form of the offer of supervised contact and she should therefore be found entitled to the expenses from the date upon which this had been made (which had been about one week before the commencement of the proof). Alternatively, there having been shared success in the action, there should be a finding of no expenses due to or by either party.

In conclusion, Mr Macgregor referred to the first two sentences of paragraph 10 of the amended grounds of appeal which read: "On being addressed by the defender's agent on the 7^th January 2003 on the question of expenses the sheriff interrupted the defender's agent during her submissions on numerous occasions. The defender's agent obtained the impression that the sheriff had pre-determined his views on the question of liability for expenses". Mr Macgregor (who had not been present at the hearing on expenses) stated that he had no evidence to support the assertion that the sheriff had had any preconceived idea on the matter of expenses, and he explained that he no longer insisted on the points made in the two sentences which I have just quoted.

In response, Miss Harvey stated that it was true that there had been a number of child welfare hearings and that at none of these had an interim contact order been made. At each such hearing the parties had been able to reach an agreement which had later fallen by the wayside so that the pursuer had had to come back to court. At the final child welfare hearing Sheriff McLernan had suggested that the cause should be sisted until contact broke down again. Eventually the matter had come to proof. She (Miss Harvey) accepted most of what had been said by Mr Macgregor in regard to the discussions immediately prior to the proof. It was correct that settlement had been discussed and that the defender had made an offer of supervised contact which had been rejected by the pursuer. It was her recollection that, by the time she had been able to respond to
Miss Wiggins on behalf of the pursuer saying that the offer of supervised contact had been rejected by him, Miss Wiggins had stated that the offer had been withdrawn by the defender in any event. In the event the proof had occupied three days of evidence with a fourth day for submissions. At the end of the third day Sheriff Garden had suggested that the parties should attempt to reach an agreement on the matter of contact. The pursuer had given her (Miss Harvey) instructions to write to Miss Wiggins to the effect that the pursuer would be prepared to exercise contact with the children outwith the Family Centre but subject to the supervision of his mother or father. She had written accordingly to Miss Wiggins on 16^th September 2002. This proposal corresponded with the offer which had originally been made by the defender and later withdrawn by her. On 18^th September 2002 a response had been received from
Miss Wiggins to the effect that the defender's two sisters had agreed to supervise contact with the two children. On 15^th October 2002 a further letter had been received to the effect that the defender's sisters would be the appropriate persons to supervise contact. This had been rejected by the pursuer. When submissions on the evidence had been heard by the sheriff on
4^th November 2002 the defender's position had been that, if the pursuer was not prepared to accept supervision by either of her two sisters, then contact should be supervised by a third party, namely a friend of the defender who worked at the swimming pool in Peterhead.

In summary, Miss Harvey stated that she could not dispute that there had been discussions prior to the proof in regard to the possibility of settlement. An offer had been made by the defender and rejected by the pursuer but this had in any event been withdrawn by the defender before the proof. Moreover this offer did not correspond with the position taken up by the defender in her evidence at the proof itself. During the discussions between the conclusion of the evidence and the submissions the pursuer had indicated that he was prepared to accept supervision by one or other of his parents but the defender would not agree to this. In all the circumstances the sheriff's decision on the matter of expenses should not be disturbed.

In a brief reply, Mr Macgregor stated that he did not accept that the offer which had originally been made by the defender prior to the proof had later been withdrawn by her. There had been no previous suggestion made to this effect. He (Mr Macgregor) was not aware of what had happened during the subsequent negotiations after the conclusion of the evidence. There was no suggestion in the sheriff's original note that it had been suggested to him that the pursuer had had a change of heart between the close of the evidence and the date upon which submissions were made to him.

It will be observed from what I have said so far that neither side apparently thought it necessary at the hearing before me to address the principles which govern the review by an appellate court of the decision of a judge of first instance on the question of expenses. In the case of the defender the silence of her solicitor on this subject was perhaps understandable given the frailty of her position in the appeal. As is observed in Macphail's Sheriff Court Practice (2^nd Edn) at paragraph 18.117: "In practice, however, appeals solely on questions of expenses are severely discouraged, and are not entertained unless either there has been an obvious miscarriage of justice, or the expenses have become a great deal more valuable than the merits, or a question of principle is involved. The appellate court will not alter the decision of the judge below on a point which was not argued before him". And in Howitt v Alexander & Sons 1948 SC 154 Lord President Cooper observed at page 157: "An award of expenses according to our law is a matter for the exercise in each case of judicial discretion, designed to achieve substantial justice, and very rarely disturbed on appeal. I gravely doubt whether all the conditions upon which that discretion should be exercised have ever been, or ever will be, successfully imprisoned within the framework of rigid and unalterable rules, and I do not think that it would be desirable that they should be".

The general principles which an appellate court should apply in reviewing a discretionary decision of a judge of first instance (including of course a decision on expenses) are helpfully summarised in Macphail at paragraph 18.111 where it is said:

The underlying rationale of the appellate court's restrictive approach to the review of discretionary decisions is that it is of the essence of a judicial discretion that on the same material different minds may reach widely different decisions, any one of which may reasonably be thought to be the best, and any one of which, therefore, a judge may make without being held to be wrong. The appellate court may intervene if it is satisfied that the judge did not exercise his discretion at all; or that in exercising it he misdirected himself in law; or misunderstood or misused the evidence or the material facts before him; or took into account an irrelevant consideration; or failed to take into account some relevant consideration; or if his conclusion is such that, though no erroneous assumption of law or fact can be identified, he must have exercised his discretion wrongly. Expressions which have been judicially employed to describe such a conclusion include: "completely" or "plainly" wrong; "wholly unwarranted; manifestly inequitable; "unreasonable" and "unjudicial".

Having regard to what the sheriff said on the matter on expenses in both his original and his additional notes, I am quite unable to hold that any of the grounds upon which an appellate court might interfere with his decision in this context have been made out in this case. In particular, it is clear from what he says on page 4 of his original note that the sheriff did take into account the fact that in discussions prior to the proof there had been an offer of supervised contact which had been rejected. It may be that the sheriff was not aware of all the details of the negotiations which took place at that time as they were explained to me and as I have narrated above. But the sheriff can scarcely be criticised on this account since it was for the defender's solicitor to put these details before him at the hearing on expenses if she thought that they were of particular significance. Moreover, as the sheriff observes in his original note (and this was not challenged at the appeal), the fact that an offer of supervised contact had been made and rejected before the proof did not coincide with the defender's position at the proof itself.

In the absence of any ground upon which I might properly interfere with the sheriff's exercise of his discretion on the matter of expenses, it is nothing to the point that, had I been in his position, I might have reached a different decision on this question to that which he reached (and I do not say that I would have done so). The blunt fact is that the decision on this question was one for the sheriff, and for the sheriff alone, no error on his part has been demonstrated and this appeal must therefore be refused.

Mr Macgregor submitted that no expenses should be found due to or by either party in respect of the appeal. Mr Adams stated that he had no view on the matter of expenses and had no motion to make in this context. I have accordingly acceded to Mr Macgregor's motion.