Scottish Sheriff Court Decisions

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Cite as: [2004] ScotSC 88

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SHERIFFDOM OF LOTHIAN AND BORDERS

Haddington F84/03

JUDGMENT OF

SHERIFF PRINCIPAL IAIN MACPHAIL QC

in the appeal

in the cause

ANDREWINA SUSAN BAIRD BOYLE or RIDDELL

Pursuer and Respondent

against

ALAN RIDDELL

Defender and Appellant

_________________________

Act: S A Bell, Advocate; Garden Stirling Burnet, Haddington

Alt: Party

EDINBURGH, 23 December 2004.

The Sheriff Principal, having resumed consideration of the cause, refuses the appeal; adheres to the interlocutor of 30 August 2004 complained of; finds the defender and appellant liable to the pursuer and respondent in the expenses of the appeal; allows an account thereof to be given in; remits the cause to the Sheriff at Haddington to proceed as accords.

NOTE

[1] This is an appeal against a decree by default pronounced against the husband in a wife's action of divorce. The wife sues for divorce, for the transfer to her of the husband's interest in a life assurance policy, and for a capital sum of £12,000. The husband does not oppose the granting of decree of divorce but resists the wife's claims for financial provision and counterclaims for the transfer to him of the wife's interest in the life assurance policy and for a capital sum of £10,000.

[2] The action was raised in June 2003 but was sisted on 23 July 2003 to await the result of the defender's application for legal aid. By a letter dated 18 November 2003 his agents intimated to the court that they were no longer acting for him. The Sheriff accordingly recalled the sist and fixed a peremptory diet for 15 December 2003. On that date the defender's agents appeared and intimated that they had been re-instructed. The Sheriff allowed defences to be lodged and assigned an options hearing for 16 February 2004. On that date the Sheriff closed the record and appointed the parties to debate the pursuer's preliminary pleas. A diet of debate was thereafter fixed for 29 June 2004 but on 23 June 2004, on the defender's unopposed motion, that diet was discharged. The Sheriff allowed a minute of amendment for the defender to be received and answers to be lodged, with a procedural hearing on 9 August 2004. By a letter dated 27 July 2004, however, the defender's agents again intimated that they were no longer acting for him. The Sheriff fixed a peremptory diet for 9 August 2004, the same date as the procedural hearing. That diet was not intimated to the defender, however, and on 9 August 2004 the Sheriff fixed a further peremptory diet for 30 August 2004. That diet was duly intimated to the defender, but on 30 August 2004 he did not appear and was not represented. On the pursuer's motion, the Sheriff pronounced an interlocutor allowing the case to proceed as undefended, allowing a proof by affidavit evidence, and reserving all questions of expenses arising out of the amendment procedure. Against that interlocutor the defender now appeals.

[3] The Sheriff's interlocutor of 30 August 2004 was a decree by default. The defender was in default in respect that he had failed to appear or be represented at the diet (Ordinary Cause Rules 1993, rule 33.37(1)(c)). Rule 33.37(2)(a) provides that where a party to a family action such as this is in default under paragraph (1) the Sheriff may allow the cause to proceed as undefended under Part II of Chapter 33 of the Rules. That is what the Sheriff did. The defender, who appeared on his own behalf at the hearing of the appeal, seemed to think that the Sheriff had already granted the orders for financial provision craved by the pursuer. I explained the true situation to him and invited him to address me on the circumstances in which he had failed to appear on 30 August 2004 and on the nature of the case he wished to put forward. I did so in view of the fact that whether he was to be reponed was a matter in my discretion, and that it was my duty to do what the ends of justice required. I refer to Macphail, Sheriff Court Practice (2nd ed), vol 1, pages 444-446, paragraphs 14.11 to 14.14. I noted that it could also be said that he had been in default by failing to appear on 9 August 2004. It had been incumbent on him to appear or be represented at the procedural hearing on that date irrespective of whether the peremptory diet had been intimated to him. The Sheriff, however, had granted decree by default only in respect of his failure to appear on 30 August, and I considered that I should investigate only the reason for his absence on that date.

[4] The defender stated that before 30 August his former solicitors had advised him in writing that they were no longer acting for him, and he had lodged a complaint against them with the Law Society of Scotland. Having received intimation of the peremptory diet fixed for 30 August, however, he had nevertheless gone back to these same solicitors and asked them to represent him on that date. They had agreed to do so. He had accordingly understood that they would be appearing for him on that date.

[5] The defender's account appeared to me to be unconvincing. It seemed to me to be implausible that a litigant who had received from his solicitors written intimation that they had withdrawn from acting, and who had complained about them to the Law Society, would instruct these solicitors to appear for him again in the same litigation, or could reasonably expect them to accept such instructions. The defender's account was contradicted by a letter from his former solicitors to the pursuer's solicitors dated 20 September 2004, a copy of which is now among the pursuer's productions. The letter points out that the solicitors had withdrawn from acting for the defender in July 2004 and they had so advised him in writing. The letter further states that the defender did not instruct them to appear at the peremptory diet on 30 August. Before that date he had had a meeting with their complaints partner, the purpose of which had been to investigate whether or not he had a justified complaint against the partner who had been dealing with his case. At no time had there been any question of the solicitors' acting for the defender. The narrative in the letter is wholly intelligible, unlike the account of the matter given by the defender at the hearing of the appeal. I decided that I was unable to accept that the defender had instructed these solicitors to appear for him at the peremptory diet on 30 August 2004.

[6] I went on to consider whether there was a proper issue upon which the defender was entitled to a considered judicial determination. It appears from the pleadings that there is on joint deposit receipt a balance of £10,500 from the sale of the former matrimonial home. The surrender value at the relevant date of the life assurance policy in the joint names of the parties is £5,000. The defender has a pension, the cash equivalent transfer value of which at the relevant date is stated by the pursuer to be £12,830.20. The total of these figures is some £28,330. The defender proposes that he should receive the pursuer's interest in the policy. He already has a half interest in the sum on joint deposit receipt (£5,250). He also craves a capital sum of £10,000. It seems clear that the defender's claims could not be justified by the principle that the net value of the matrimonial property should be shared fairly between the parties to the marriage. It is taken to be shared fairly when it is shared equally or in such other proportions as are justified by special circumstances (Family Law (Scotland) Act 1985, sections 9(1)(a), 10(1)). It is therefore necessary to see whether there are any relevant averments of any special circumstances that would justify anything other than an equal sharing. I analyse the defender's averments in that regard in the following paragraphs.

[7] The defender's position is stated in the minute of amendment lodged on his behalf (no 13 of process). It states, first:

The defender has had the financial burden of caring for the children and for a period from October 1998 until approximately August 2001, no aliment was paid by the pursuer to the defender for child maintenance. The financial burden of caring for the children fell upon the defender. In terms of section 9(1)(c) of the Family Law (Scotland) Act 1985 the defender is entitled to have the economic burden of caring for the children of the marriage under the age of sixteen years taken into account in respect of division of the matrimonial assets.

In my opinion these averments are wholly misconceived. Section 9(1)(c) is concerned with 'any economic burden of caring, after divorce, for a child of the marriage under the age of 16 years'. There are no children of the marriage under 16 years of age.

[8] Next it is said:

The defender has paid substantial matrimonial debt of the parties since the parties separated. In particular he has paid Lombard Personal Finance loan taken out during the course of the marriage in the defender's name at the rate of £101 per month to a total of £3,000. He paid joint debt to British Gas, MBNA credit card, Capital One, Northern Rock. [...] The defender therefore has suffered economic disadvantage. The pursuer has received economic advantage in respect of the defender's payment of the matrimonial debt, all in terms of section 10 of the Family Law (Scotland) Act 1985. The defender is therefore entitled to an unequal financial settlement in his favour.

It seems clear that the Lombard loan, which was opened on 30 March 1998 (no 6/1/4 of process), relates to the purchase of a motor vehicle which the defender retained and from which, accordingly, the pursuer did not gain any economic advantage after the relevant date, 12 October 1998. The defender stated that the loan related to furniture, but he appears to have confused it with another loan from Lombard Tricity Finance Ltd (no 6/1/11 of process). It seems doubtful whether the debt to British Gas was a matrimonial debt since it was paid in December 1999. In any event it amounted to only £39.51 and may be ignored on the principle of de minimis non curat praetor. The 'MBNA credit card' is in the name of the defender and relates to transactions after the relevant date (no 6/1/16 of process). The Capital One account appears to relate to a small debt due by the defender personally (no 6/1/15 of process). Northern Rock were the heritable creditors in respect of the former matrimonial home. The sums involved also fall within the principle of de minimis (nos 6/1/12, 6/1/17 of process).

[9] The averments omitted from the quotation in the previous paragraph are as follows:

In addition the pursuer removed funds from Halifax and Royal Bank savings accounts, and a Christmas Holiday fund. Further, the pursuer attended at the former matrimonial home to remove furniture. She broke into the house and the defender required to make payment of £438.31 for repairs.

There is no specification of when the pursuer is said to have removed any funds or of how much she is said to have removed, and no vouchers are produced. Without further specification it is difficult to relate these averments to the principle relative to economic advantage and disadvantage (section 9(1)(b)). It is equally difficult to relate to that principle the pursuer's removal of unspecified items of furniture on an unspecified date. In any event the vouching produced (no 6/1/9 of process) includes a figure of £165.86 for the repair of a burst water pipe and a floor, which is not a self-evident consequence of a housebreaking.

[10] Upon the foregoing analysis of the defender's case, which is based upon the submissions of the pursuer's counsel, I am not satisfied that the defender has put forward any substantial issue upon which he is entitled to a judicial decision. It is important to notice that if the action proceeds as undefended, the pursuer's claims for orders for financial provision will not be granted without further inquiry: the evidence lodged in support of them will be subject to judicial scrutiny (Ali v Ali 2001 SC 618 at 626F-G, [23]). In all these circumstances I am of opinion that it is not in the interests of justice that the defender should be reponed.

[11] I have therefore adhered to the Sheriff's interlocutor and remitted the cause to him to proceed as accords. I have awarded the expenses of the appeal to the pursuer. While I have allowed an account to be given in, I have not remitted it, when lodged, to the Auditor to tax and to report. I have taken that course in order to avoid the inconvenience and expense of more than one taxation. At the conclusion of the case the Sheriff may remit to the Auditor the account of the expenses of the appeal along with the account of any expenses awarded by him which he allows to be given in. Thereafter it will be for the Sheriff to dispose of any objections and decern for the taxed amount of expenses. I was not asked to certify the appeal as suitable for the employment of junior counsel.