SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE

A1120/04

JUDGMENT OF SHERIFF PRINCIPAL

R A DUNLOP QC

in the cause

DEAN FRANCIS McLAREN

Pursuer and Appellant

against

JENNIFER HENDERSON

Defender and Respondent

__________________

Act: Robbie, Solicitor, Dundee

Alt: Hall, Solicitor, Dundee

DUNDEE, 1 March 2006. The Sheriff Principal, having resumed consideration of the cause, allows the appeal and recalls the sheriff's interlocutor of 24 May 2005 complained of; directs the sheriff clerk to assign a fresh diet for a child welfare hearing and remits to the sheriff to proceed as accords; finds no expenses due to or by either party in respect of the appeal.

NOTE:

[1] This is a defended family action in which the pursuer seeks, amongst other things, an order for contact in respect of two children. In the course of the proceedings there have been five child welfare hearings, at the first four of which the pursuer was present. At the last child welfare hearing on 24 May 2005 however the pursuer did not appear, although his solicitor did. Up until that date the pursuer had been allowed interim contact with the children for varying periods but there was then available a report from the curator ad litem on the basis of which she apparently proposed to recommend that contact be reduced to nil.

[2] Having heard parties' procurators and the curator ad litem the sheriff dismissed the action and found no expenses due to or by either party. The terms of her interlocutor bear to show that she did so because the pursuer had failed to attend the diet and had failed to give instructions to his solicitor. The pursuer has now appealed and the sheriff has helpfully provided a note explaining more fully the reasons for her decision.

[3] It seems clear from the terms of this note that the sheriff dismissed the action in reliance upon the terms of ordinary cause rule 33.37. That rule provides that, in a family action in which the defender has lodged a notice of intention to defend, a party is in default if he or she fails to appear or be represented at any diet. The sheriff plainly took the view that she required to consider whether the appellant had failed "to appear or be represented".

[4] There was of course no doubt that the appellant had failed to appear but the sheriff also concluded that he was not represented, notwithstanding the appearance of his solicitor. It seems that she reached that conclusion in view of the absence of instructions from the appellant to his solicitor when set in the context of a child welfare hearing, being a hearing at which all parties were expected (a) personally to attend and (b) to provide the sheriff with sufficient information to enable her to conduct the hearing. (OCR 33.22A(5) & (6))

[5] The solicitor for the appellant submitted that the sheriff was not entitled to grant decree by default since the appellant had been represented at the diet. In support of this submission reference was made to Grimes v Grimes 1995 SCLR 269 in which my predecessor, Sheriff Principal Maguire, held that in terms of rule 33.37(1) a party is not in default if he is represented at a diet notwithstanding that he himself is absent. When it was drawn to her attention, the solicitor for the appellant also adopted the approach of Sheriff Principal Macphail in Samson v Fielding 2003 SLT (Sh. Ct.) 48. In that case the learned sheriff principal expressed the view that there was no room for drawing a distinction between those solicitors who were fully instructed and those who were only nominally instructed and that if a solicitor appeared at the bar and stated that he or she appeared for the party then in the eyes of the court that party was represented.

[6] The solicitor for the appellant then submitted that in any event it was in the interests of justice to recall the sheriff's interlocutor. It was accepted that the appellant had been made aware of the date of the child welfare hearing but it was explained that he had then mistakenly come to think that the hearing was to take place the following day. Indeed he had attended court on 25 May only to discover what had occurred the previous day, whereupon he immediately consulted his solicitor who then marked the appeal. The matter was thus presented to me as a simple mistake rather than one of wilful disobedience or gross carelessness as suggested by the sheriff. The solicitor for the respondent did not seek to controvert this assertion although I recognise that he may not have been in a position to do so.

[7] In relation to the primary ground of appeal the solicitor for the respondent did not seriously challenge the submissions founded on Grimes v Grimes and Samson v Fielding. He contended instead that the sheriff was entitled to treat the child welfare hearing as a diet at which the action may be disposed of on its merits. This submission was advanced under reference to a statement to that effect in Macphail's Sheriff Court Practice (second edition) at paragraph 22.38, but without giving any consideration to either of the two cases referred to in the footnote in support of that statement or attempting any examination of the circumstances in which such a course of action might be appropriate.

[8] Suffice it to say that without such examination I would hesitate to affirm that as an appropriate course of action in the factual circumstances with which I am confronted in this appeal. In my view however the respondent's submission does not get off the ground because that was not the basis upon which the sheriff founded her decision. While in the final paragraph of her note the sheriff states that she does not consider it in the interests of the child to continue the action, it does not seem to me, in the context of her note as a whole, that that is why she dismissed the action. I derive support for that view from the specific terms of the interlocutor to which I have already referred. In any event the sheriff does not elaborate upon these matters and there is accordingly no proper basis upon which I could examine whether that conclusion was justifiable, even if it was desirable to do so in the context of this appeal.

[9] It follows therefore that there is no real opposition to the appellant's grounds of appeal. In particular it was not suggested that the decision of my learned predecessor in Grimes v Grimes was not well founded and, even were I disposed to differ from his conclusion (which I am not), I would not consider it appropriate to do so in the absence of a contradictor. Although that case was concerned with a failure of a party personally to attend the options hearing in a family action (OCR 33.36), it is difficult to see why the ratio of that decision should not apply with equal force to the case of a failure of a party personally to attend a child welfare hearing, given the identical provisions of OCR 33.22A(5). The identity of approach is reinforced by the fact that the provisions of OCR 9.12(2) and 33.22A(6) impose identical duties upon the parties in relation to the provision of information, the lack of which seems to have influenced the sheriff's decision in the present case. So far as concerns the question of whether a party is "represented" within the meaning of OCR 33.37(1)(c) I respectfully agree with the analysis of the learned sheriff principal in Samson v Fielding.

[10] It follows that in my opinion the sheriff has misdirected herself in law in concluding that she was entitled to find the appellant in default. Although that is a sufficient ground for allowing the appeal, I am inclined in any event to give the appellant the benefit of the doubt concerning his explanation for his failure to attend. While there is no clear evidence to corroborate the appellant's explanation, the fact that he consulted his solicitor immediately is at least consistent with it. Furthermore his attendance at all previous child welfare hearings does not suggest a lack of serious engagement with the proceedings. While the curator expressed reservations about whether he was committed to contact at all the appellant has shown no lack of commitment in his pursuit of this appeal.

[11] As the sheriff pointed out to the respondent at the child welfare hearing, her interlocutor dismissing the action was not necessarily an end of the matter as a fresh action could be raised. While there is clearly a question whether it is in the best interests of the children that the appellant should have contact with them he has been allowed contact by the court in the past and by this appeal has expressed an intention to pursue that further in the future. Although the curator proposed to recommend that the appellant's contact be reduced to nil, the appellant has not had the opportunity of being heard on that proposal and in the circumstances in my view the preferable course is to allow the present action to continue.

[12] I shall accordingly allow the appeal, recall the sheriff's interlocutor and remit to the sheriff for a fresh child welfare hearing.

[13] Parties were agreed that there should be no expenses to or by either party.

[14] By way of postscript it is perhaps worth pointing out that, in the commentary at the end of the report in Grimes, the view is expressed that there could be little doubt that the compilers of the 1993 Rules intended that a party's absence from the options hearing in a family action should render him in default. The sheriff principal pointed out that a consequence of his construction of OCR 33.37(1)(c) was the absence of any immediate sanction upon a party who failed to attend an options hearing in breach of the requirements of OCR 33.36. He suggested that there was a hiatus in the rules and the commentator expressed the hope that an amendment to rule 33.37 would not be long delayed.

[15] No such amendment was made. I am unaware of the reasons for that or even whether the Rules Council considered the matter. In family actions in which the best interests of children fall to be considered the view that a party failing to appear personally at a child welfare hearing ought thereby to be in default may not command universal support. Of course not every family action involves children and there is perhaps room for discriminating among family actions according to the different circumstances of each case. Whatever the proper balance to be struck however I share the view of my learned predecessor that there is at least a hiatus in the rules and that that is a matter which is worth bringing back to the attention of the Rules Council for their consideration if so advised.