SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY

 

A3685/05

	JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART
	in the cause
	MOHAMMED HUSSAIN HAKEEM
	Pursuer and Appellant
	against
	THE SECRETARY OF STATE FOR WORK & PENSIONS CHILD SUPPORT AGENCY
	Defender and Respondent

 

Act: R Carty, of Messrs Cartys

Alt: A Hunter, of Messrs Harper MacLeod

 

 

 

HAMILTON: 1 May 2007

 

The Sheriff Principal, having resumed consideration of the cause, refuses the appeal and adheres to the Sheriff's interlocutors of 16 November 2006 and 17 January 2007 complained of; finds the pursuer and appellant liable to the defender and respondent in the expenses of the appeal; allows an account thereof to be given in and remits same when lodged to the Auditor of Court to tax and to report.

 

NOTE:

 

Background to the appeal

 

1.             In the summer of 2003 following a hearing in Glasgow maintenance orders were made against the appellant by the respondent in respect of his liability for children for whom he was responsible. Following assessments and non-payment of these assessments, the respondent applied to Hamilton Sheriff Court at the beginning of 2005 for liability orders. At that stage the respondent did so in respect of two separate branches of the assessment. Two separate liability orders were made on 24 March 2005 for £15,727.18 and £25,740.42.

 

2.             It was a matter of agreement between the parties that these liability orders should be regarded as "qualifying decrees" in this litigation for the purposes of section 5(5) of the Sheriff Court (Scotland) Act 1907. The appellant did not enter the process and orders were granted in absence. In a telephone call to the respondent, a record of which is provided in 6/1/1 of process, the appellant made certain representations to the respondent. As a result of these representations an interim arrangement was made whereby the appellant would pay £85 per month for child maintenance arrears in respect of each of the liability orders. A letter confirming the agreement dated 14 February 2005 stated "This agreement is subject to review at the instance of the Child Support Agency" (6/1/2 of process). The letter provided that failure to meet this obligation would result in further action being taken to recover the unpaid maintenance.

 

3.             It was an integral part of the appellant's position that the obligation to pay £85 per month related to each of the two liability orders. It was not a cumulo figure of £170 per month to the global sum. This was accepted by the respondent.

 

4.             It was pled on behalf of the appellant that he proceeded to send the respondent details of the divorce settlement and details of his tax return. It was not suggested by the respondent that they had in any way aborted their right to review the agreement at their instance. The appellant missed one monthly payment of £85 in respect of the first liability order, but maintained his payments in respect of the second liability order. As a result of the appellant missing this payment, the respondent then contacted the appellant by telephone. In a telephone conversation on 26 May 2005, a further agreement with the appellant was reached in respect of which the respondent agreed to accept a revised repayment figure of £85 per week towards arrears in respect of each order (6/1/9 of process). This verbal agreement was confirmed by letters dated 26 May 2005 and 27 May 2005 (6/1/10 and 6/1/11 of process) in respect of the two orders. Charges were executed, in respect of the first liability order on 22 April 2005 for £15,727.18, and in respect of the second liability order, on 27 July 2005 for £25,740.42 (6/2/21 and 6/2/22 of process).

 

5.             The appellant then raised this action in which he sought (1) suspension of the right of the respondent to effect diligence on the property and assets of the appellant in respect of the liability orders granted at Hamilton Sheriff Court on 24 March 2005, and (2) interdict preventing the respondent from exercising further acts of diligence against the property and assets of the appellant. Interim interdict was granted in respect of crave 2 on 23 November 2005.

 

6.             The case proceeded through various procedural stages and a debate took place before the Sheriff on 13 September 2006, 27 September 2006, 3 October 2006 and 2 November 2006. On 16 November 2006 the Sheriff issued an interlocutor sustaining the respondent's first plea in law and dismissing the action. He appended a note to his interlocutor.

 

7.                  The Sheriff dismissed this action because he upheld the submission on behalf of the respondent that the action was incompetent as it had been raised as an ordinary action when in fact it ought to have been raised by way of a summary application. The Sheriff had regard to the provisions of the Act of Sederunt (Summary Suspension) SI 1993 No 312 and in particular to sections 2 and 3 which are in the following terms:

"Summary application for suspension of charge

(2) where a charge for payment has been executed on any decree to which section 5(5) of the Sheriff Courts (Scotland) Act 1907 applies the person so charged may apply to the Sheriff in the Sheriff Court having jurisdiction over him for suspension of such charge and diligence.

Sist of diligence

(3)          (1) on sufficient caution being found or other security being given for-

(a)        the sum charged with interest and expenses, and

(b)        a further sum to be fixed by the Sheriff in respect of expenses to be incurred in the suspension process,

The sheriff may sist diligence, order intimation and answers, and proceed to dispose of the cause in a summary manner .."

 

8.             The Sheriff had regard to the provisions in para 13.50 of Macphail Sheriff Court Practice which provided:

"The statutory provisions ... do not deal with a situation in which an action which can only be properly raised under one form of process has been raised in error under the wrong form of process. There appears to be two views of such a situation. One view is that the action is a total nullity upon which no further procedure can follow. The other, less drastic, view is that the Sheriff has an inherent power to transfer the action to the correct roll, which he may exercise where the defender has suffered no prejudice by the error, as where the action has been raised within any statutory time limit, the nature of the claim and the remedy sought have been made clear to the defender, and the error has been formal rather than substantial or the procedural rule contravened has been directory rather than mandatory. The latter view appears to be supported by the observations in Bliersbach v McEwan, that in the circumstances of that case any error in the initiation of the proceedings as a summary application instead of as an ordinary cause could easily have been remedied before the sheriff substitute, who could have transferred the cause to the ordinary roll. In any event it is submitted that the latter view is to be preferred, since it is in accordance with the tendency of modern practice to relieve a party of the consequences of merely technical irregularity."

 

9.             At page 11 of his judgment the Sheriff stated that it would appear that those dicta from Macphail that there are four tests to be applied before a Sheriff could exercise his inherent power to transfer an action to the correct roll viz

"(1) the defender has not suffered prejudice (2) the nature of the claim and the remedy sought have been made clear to the defender (3) the error has been formal rather than substantial (4) the procedural rule contravened has been directory rather than mandatory."

The Sheriff held that only the second test had been met in this case. The Sheriff concluded that the respondent had suffered prejudice; the error had been substantial; and the procedural rule contravened had been mandatory. The Sheriff accordingly concluded that the current process was incompetent.

 

10.         The Sheriff considered a submission which had been made at debate by solicitor for the pursuer (now appellant) that the interdict crave could stand alone as an ordinary action. The Sheriff stated at page 12:

"I interpreted this submission to be that I could treat this process as an ordinary action of interdict with a suspension application hanging onto its coat tails. I found no merit in this submission. Primarily the pursuer's object in raising the action was to suspend the right of the defender to effect diligence. Interdict was an ancillary crave since otherwise the pursuer's object could be defeated. There was no separate plea in law relevant to the interdict crave and the pursuer's second plea in law did not, as suggested by Mr Carty, support such a crave since that referred to personal bar. Without the suspension crave, the crave for interdict had no relevance."

In the whole circumstances the Sheriff concluded that the form of action was not merely a technical irregularity and that the first plea in law for the respondent ought to be upheld and the action dismissed.

 

11.         Against that interlocutor two grounds of appeal were argued by solicitor for the appellant:

(a) The Sheriff erred in holding that the current process was incompetent as it had been raised as an ordinary action.

(b) The Sheriff erred in refusing to allow the crave for interdict on the basis of personal bar to go to probation.

I deal with these in turn.

 

A The Sheriff erred in holding that the current process was incompetent as it had been raised as an ordinary action.

 

Submissions for the appellant

 

12.         Solicitor for the appellant took me through the background of this action which I have recorded above. It was submitted that, while the matter perhaps could have been more fulsomely stated, a reading of the record against the factual background which had been given made it clear that the appellant was seeking suspension and interdict pending an assessment being carried out. The letter of 14 February 2005 (6/1/2 of process) contained the following:

"This agreement is subject to review at the instigation of the Child Support Agency"

It was suggested that this review was still outstanding."

 

13.         Solicitor for the appellant accepted that para 13.50 of Macphail on Sheriff Court Practice, which I have set out above, indicated that the Sheriff did have an inherent power to transfer a case from one roll to the other. He accepted that before a Sheriff can exercise the inherent power to transfer an action to the correct roll four tests required to be considered. He dealt with these in turn:

(i) The respondent has not suffered prejudice. It was submitted it was clear from the Sheriff's judgment that he considered there had been prejudice to the respondent as a result of the delay in resolving this matter. It was accepted that the factual timetable, namely that the action was raised in November 2005 and the debate not reached until September 2006, spoke for itself. It was submitted that the remedy of suspension and interdict was a remedy which sought to prevent the respondent from carrying out diligence until such times as an assessment had been carried out by the respondent. The letter of 14 February 2005 indicated:

"This agreement is subject to review at the instigation of the Child Support Agency."

That review was still outstanding. It was suggested that the appellant was seeking suspension and interdict pending that assessment being carried out. As it had not been carried out, the delay lay at the respondent's hand. Had the respondent attempted to carry out a reassessment involving the appellant, there could have been no grounds for complaint and the appellant could not have raised this action. However, it was said the respondent failed to initiate a review. The appellant's position was that it was not unreasonable that the respondent should delay executing any diligence until he had carried out the review or assessment which he had promised they would do. Accordingly, the Sheriff had erred in taking the view that the respondent had suffered prejudice as a result of the delay.

(ii). The nature of the claim and the remedy sought had been made clear to the respondent. The Sheriff had accepted that this test had been met.

(iii). The error had been formal rather than substantial. It was submitted that a summary application was presented to the court in much the same format as an initial writ. From the respondent's point of view, they received proper notice of what was said against them. It was accepted that, if an action was put on the summary application roll, it would be subject to less formal requirements than under the Ordinary Cause Rules. However, in this case all that was different was that the "banner headline". The writ was called an initial writ instead of a summary application. It was suggested that that error was formal rather than substantial. Proper notice of the appellant's case had been given.

(iv) The procedure rule contravened had been directory rather than mandatory. It was submitted that the rule contravened was directory. I was referred to the section in Macphail at 13.50 which suggested that the modern practice was to relieve a party from the consequences of a technical irregularity. This was something that the court would do in the exercise of its discretion. The procedural rule provided that "a person charged may apply to the sheriff ... for suspension of the charge". It was said that, because the word "may" was used, the Sheriff had a discretion as to whether or not to move the case to another roll. The procedural rule could therefore be said to be directory rather than mandatory. If it was mandatory, there could not be a discretion to move the case between rolls.

 

14.         It was submitted in these circumstances that the Sheriff had erred in holding that only the second of these tests was met. It was submitted that all four tests had been met. It was open to the Sheriff to transfer the case from the ordinary cause roll to the summary application roll.

 

15.         I was asked to find that the Sheriff had erred in dismissing the action instead of allowing the existing pleadings to be considered as a summary application and the case transferred to the summary application roll to proceed as accords. It was submitted that the question of caution could be dealt with after the case had been transferred in terms of the Act of Sederunt.

 

Submissions for the respondent

 

16.         Solicitor for the respondent noted that it was accepted by solicitor for the appellant that proceedings for suspension required to be by summary application. The Sheriff stated at page 10 of his note, with reference to the Act of Sederunt (Summary Suspension) (SI 993 No 3198) 1993, which I have set out in full at para 7 hereof:

"I have concluded that the defender's position was well founded and that this action ought to be dismissed. The original action for liability orders was by way of summary application. This would have been known to the solicitors acting on behalf of the pursuer. If the pursuer wished to suspend diligence in respect of these orders then it was open to do so by way of summary application and with reference to the appropriate statutory instrument. I have concluded that this Act of Sederunt could not be more clear in its terms. To begin with section 1(1) states that the Act may be cited as the Act of Sederunt (Summary Suspension) 1993. Thereafter section 2 commences with the heading "Summary Application for Suspension of Charge". It is obvious that it was intended that any action where the suspension of a liability order was sought had to proceed by way of summary application. Moreover logic would dictate that a summary application where liability orders were granted should only be suspended by a summary application

 

17.         Solicitor for the respondent then referred to the four tests set out in Macphail para 13.50. It was submitted that the Sheriff had to look at the four tests and that it was the consideration of all four answers, taken together, that would allow the Sheriff to exercise his or her discretion to transfer the cause to a different roll. All four did not require to be met before an order could be made. The decision was a discretionary one. The solicitor for the respondent dealt with the four tests as follows:

(i) Prejudice to the defender. It was said by the appellant that prejudice resulted from failure on the part of the respondent to subject the agreement which was made between the parties to review. This was not accepted. In relation to the first liability order, the appellant accepted he failed to comply with the agreement made in 14 February 2005 by failing to make a monthly payment of £85. The respondent accordingly could properly serve a charge and seek to enforce that properly obtained liability order. As far as the second liability order was concerned, the appellant failed to meet the terms of the agreement made on 26 May 2005 as he did not make any payments under the new agreement of £85 per week in respect of each order. As soon as the appellant failed to comply with these agreements, the respondent was no longer obliged to carry out any assessment. The respondent was entitled to serve the two charges for payment, the first on 22 April 2005 and the second on 27 July 2005. The appellant raised this action in November 2005 and obtained interim interdict. Because of the interim interdict, the respondent was not able to enforce the liability orders. The respondent's position was that the agreement did not specify the time within which a review was required to take place. The respondent's position was simply that the appellant had defaulted in his payment agreements in respect of both liability orders.

The action was raised in November 2005. The respondent lodged their Rule 22 Note on 15 February 2006 indicating that this procedure should have been by way of summary application. The matter did not proceed to debate until September 2006. During the period from February 2006 to September 2006, although the appellant lodged a Minute of Amendment, no steps were taken by the appellant during that period to transfer the case to the summary application roll. Although the appellant claimed this was an informal error which could be cured, the fact of the matter was that it had taken ten months for the case to come to debate. The prejudice came from (a) not having the question of caution considered in terms of the Statutory Instrument when the action was initially raised (b) the period of ten months that it took to bring the matter to debate and (c) the cost to the respondent in having to deal with the case on the Ordinary Cause scale.

Procedures under summary application and ordinary cause were very different. In practice with a summary application, the case would be in court within five weeks of warrant. If opposed, there would be an order for answers and a hearing assigned within three to four months. The whole procedure would take about five months. Using ordinary cause procedure, a very much longer period was involved. The respondent was prejudiced, not only by the time taken, but by the cost of an Options Hearing, a Continued Options Hearing, a discharged diet of debate, a debate discharged due to lack of court time and four different debate callings. In a summary application there would be one hearing. There was substantial prejudice to the respondent on all these issues.

(ii) The nature of the claim and the remedy sought had been made clear to the respondent. It was accepted that this test had been met.

(iii) The error has been formal rather than substantial. It was submitted that the error was substantial for two reasons.

(a) although it was accepted that, at first appearance, a summary application may look like an initial writ, for reasons set out under para (i) more than one hearing was involved in an ordinary cause and the procedures were more complex and expensive.

(b) the appellant had been able to circumvent the requirement of caution. There were specific rules regarding caution in the Act of Sederunt which have already been set out. The appellants had avoided dealing with caution by their raising this as an ordinary action.

I was referred to Borthwick v Bank of Scotland 1985 SLT (Sh Ct) 49 where Sheriff Principal Caplan said at page 52:

"The Sheriff has a discretionary power to remove a case from a roll where it has no right to be, when it can properly proceed on a different roll. If such a power exists it can be aptly exercised in a case such as this where there has been a simply formal error which has caused the defenders no prejudice ... Given that the pursuer sought to cure his error at the earliest possible stage of the action the procedural errors have been formal rather than substantial."

In this case, for the reasons set out, the error was substantial and had caused prejudice.

(iv) The procedural rule contravened had been directory rather than mandatory. I was referred to page 12 of the Sheriff's judgment:

"The procedure rule contravened in terms of the Act of the Sederunt was directory rather than mandatory. The terms of the Act of Sederunt are quite clear and there is no doubt that this action ought to have been raised summarily. The pursuer was aware at a preliminary hearing some seven months prior to the diet of debate that the matter of competency was an issue. The terms of the Act were referred to by the defender in his Rule 22 Note lodged on 16 February 2006 yet it would appear that no action was taken to address this point."

The Sheriff took the view that the terms of the Statutory Instrument were mandatory.

 

18.         In summary, the appellant had not sought to cure the issue when the matter was first raised in the Rule 22 Note in February 2006. The delay created prejudice. Provisions as to procedure were mandatory. The Act of Sederunt were quite clear. It was submitted that the answers to all four tests required to be examined. Only the second test had been met. The respondent had suffered prejudice; the error was substantial, and the procedural rule contravened was mandatory. The action should be accordingly be dismissed.

 

Decision

 

19.         I accept the analysis given by solicitor for the respondent in respect of the four tests which should be met before a case can be transferred to another roll. The answers to the four tests should be examined, and a Sheriff should exercise his discretion in considering the matter in the round. In my opinion, the respondent has suffered prejudice. First, had this case in November 2005 been dealt with as a summary application in terms of the appropriate statutory instrument, the question of caution would have immediately been determined. By raising the action as an ordinary action the appellant has avoided having to put caution forward. Secondly, had this case proceeded by way of a summary application, it would have been dealt with quickly. At the first calling there would have been an order for answers and a hearing fixed. In this case there was an Options Hearing, a Continued Options Hearing and two discharged diets of debate before the case eventually came to debate some 10 months after the case had been raised. Thirdly, expenses on the ordinary scale are very much greater than on the summary application scale and the respondent has had to bear these expenses as the result of the appellant's decision to proceed with an ordinary action. There accordingly has been prejudice.

 

20.         I respectfully agree with the dicta of Sheriff Principal Caplan in Borthwick v Bank of Scotland supra:

"The Sheriff has a discretionary power to remove a case from a roll where it has no right to be, when it can properly proceed on a different roll. If such a power exists it can be aptly exercised in a case such as this where there has been a simply formal error which has caused the defenders no prejudice ... Given that the pursuer sought to cure his error at the earliest possible stage of the action the procedural errors have been formal rather than substantial."

In this case there has been prejudice. The appellant, despite notice that this matter should be raised as a summary application in the Rule 22 Note lodged by the respondent on 16 February 2006, has not sought to cure his error. As a result of the failure of the appellant to remedy the position, the respondent has been denied the opportunity of obtaining caution, there has been substantial delay in progress being made, and the expense to which the respondent has been put has been very substantially increased. The error is not formal. It is substantial.

 

21.         In my opinion the Sheriff was correct to take the view that this action had not been raised in the correct forum. He was entitled to dismiss the action.

 

B. The Sheriff erred in refusing to allow the crave for interdict on the basis of personal bar to go to probation

 

Submissions for appellant

 

22.         It was submitted by solicitor for the appellant that the Sheriff erred in refusing to allow the crave for interdict to be admitted to probation. The appellant sought interdict against the background of facts which had been set out. I was referred to condescendence 2:

"The pursuer avers that the defender are personally barred from enforcing diligence against the pursuer."

It appeared to have been accepted that the appellant had missed one monthly payment of £85 in respect of the first liability order and had maintained his payments in respect of the second order. The further agreement, said to have been made on 26 May 2005 was, in the submission of the appellant, an agreement which the respondent were not entitled to seek. The new agreements related to £85 per week in respect of each of the liability orders. It was submitted that the respondent was personally barred from making these new agreements. I was referred to the principle in the maxim:

"Nemo contra factum suum venire potest translated this means "no one can go against his own act".

I was referred to Reid & Blakely on Personal Bar para 1.05:

"... the plea was not merely dilatory but peremptory: if pled successfully, the action failed on a basis that precluded it from being raised again. The classification of this principle as a personal objection emphasises that it barred the party against whom it has pled ..."

 

23.         It was submitted that the respondent could not go against his own undertaking of 14 February 2005 that this agreement would be subject to review at the instigation of the Child Support Agency

 

24.         In presenting the initial writ to the court, the appellant was seeking interim interdict from preventing the respondent from exercising a right of diligence. It was submitted that interim interdict at this stage was not incompetent. It was suggested that the interim interdict crave merited consideration on its own in the process. I was referred to page 12 of the Sheriff note:

"I considered the submission by Mr Carty that the interim crave could stand alone as an ordinary action. I interpreted his submission to be that I could treat this process as an ordinary action of interdict with a suspension application hanging on its coattails. I found no merit in this submission. Primarily the pursuer's object in raising the action was to suspend the right of the defender to effect diligence. Interdict was an ancillary crave since otherwise the pursuer's object could be defeated. There was no separate plea in law relevant to the interdict craved and the pursuer's second plea in law did not support such a crave since that referred to personal bar. Without the suspension crave the crave for interdict had no relevance."

 

25.         Solicitor for the appellant disagreed. His second plea in law was:

"The defender being personally barred from enforcing the liability orders as condescended upon decree should be granted as craved."

Even if I was with the respondent in respect of crave 1 and upheld the Sheriff's findings, it was submitted there was a stateable case for interdict and interim interdict based on personal bar which is pled against the respondent and in respect of which there was an appropriate plea in law.

 

26.         In summary it was submitted I had three alternatives:

1.             Uphold the appeal and allow the action to continue as an ordinary action based on interdict.

2.             Remit the whole action to the summary application roll on the understanding that outstanding issues of expenses and caution would require to be dealt with; and

3.             Refuse the appeal.

Solicitor for the appellant invited me to take the first course and, if I was not with him on that, to take the second course.

 

Submissions for the respondent

 

27.         Solicitor for the respondent indicated that he accepted the background history set out in this note. However he referred to the sentence in 6/1/2 of process, confirming the original telephone conversation of 14 February 2005 which provided:

"Failure to meet this obligation will result in further action being taken to recover the unpaid maintenance you owe. No further reminder will be sent."

It was submitted that it was not open to the appellant to plead personal bar as it was quite clear, if the appellant failed to obtemper the agreement undertaken, further enforcement action would be taken. I was referred to condescendence 4 page 6 line 11:

"Admitted that one monthly payment of £85 was missed in respect of one of the liability orders. The defender are called upon to specify which liability order was the subject of the missed payment."

On page 8 of the record line 21 at page 8 in Answer 4 the respondent answered:

"With reference to the pursuer's call, the monthly payment of £85 was missed in respect of the liability order granted in the sum of £15,727.18 on 24 March 2005. On the basis of the failure of this payment, the defender served a charge for payment against the pursuer on 22 April 2005. The defender did not serve a charge for payment in respect of the liability order granted in the sum of £25,740.42 at this time. The defender served a charge for payment in respect of this liability order on 27 July 2005 following the pursuer's failure to comply with the agreement made with the defender's officer by telephone on 26 May 2005 which states inter alia that "should you default on this agreement enforcement action will commence without prior notice". Explained and averred that the defender is not personally barred from taking enforcement action against the pursuer under explanation that said enforcement was predicted on the pursuer's default on the agreements of 14 February and 26 May 2005 respectively."

 

28.         The first liability order was breached because the appellant missed a monthly payment of £85. A charge was served on 22 April 2005. In respect of the second liability order, a telephone conversation of 26 May 2005 (recorded in 6/1/9 of process), confirmed in letter from respondent to appellant dated 26 May 2005 (6/1/11 of process) indicated a further agreement of £85 per week towards arrears in respect of the liability order £25,740.42. This letter provided:

"Should you default on this agreement enforcement action will commence without prior notice."

No payments were made on this agreement. A charge was served in respect of the second order on 27 July 2005. It was the respondent's position that there was no foundation for any plea of personal bar.

 

29.         It was noted that, in respect of the issue of whether the interim interdict crave could stand on its own, the Sheriff had stated:

"I considered the submission by Mr Carty that the interdict crave could stand alone as an ordinary action. I interpreted his submission to be that I could treat this process as an ordinary action of interdict with a suspension application hanging onto its coattails. I found no merit in this submissions. Primarily the pursuer's object in raising the action was to suspend the right of the defender to effect diligence. Interdict was an ancillary crave since otherwise the pursuer's object could be defeated. ... Without the subsection crave the crave for interdict had no relevance."

In this case I was referred to Macphail para 24.20:

"The procedure is by way of summary application. In the initial writ craves for interdict and interim interdict are often added to the crave for suspension, for example where a poinding has been executed or a warrant for sale of a poinding breach granted. It is usual to grant interim interdict because in most cases the pursuer's object in raising the action would be defeated if diligence were to be executed. ..."

 

30.         In this case if only interim interdict were granted from exercising further rights of diligence against the property and assets of the appellant, but nothing was done to suspend diligence which had already been done, then, when the charges had expired, they would provide a foundation for a petition for sequestration, which is not a "right of diligence" in terms of crave 2. There required to be suspension of the existing diligence to protect the debtor.

 

31.         Further it was said that interdict could not stand on its own because of the terms of plea in law 2 which related to personal bar. The averments regarding personal bar concerned the question of the respondent not carrying out an assessment. That had nothing to do with interdict. Plea in law 1 related to both suspension and interdict. There was no plea in law for interdict alone. There had been no motion to amend plea in law 2.

 

32.         It was submitted that it was not appropriate to allow, in the pleadings in this case as they stood, the case to proceed only on the basis of interdict.

 

Decision

 

33.         The factual position is set out in the background section of this note. It is enough at this stage to state that the respondent carried out a charge for payment on the first liability order on 22 April 2005 in respect of the appellant's failure to obtemper the original agreement made on 14 February 2005 to pay £85 per month towards child maintenance arrears. The respondent executed a charge in respect of the second liability order on 27 July 2005 following the appellant failing to make any payments in terms of the agreement made on the telephone on 26 May 2005 of £85 per week which was recorded in the letter 6/1/11 of process. The agreements regarding payments were said to be "subject to review at the instigation of the Child Support Agency". No timescale is set out in the agreements for such a review. There is no provision to the effect that a review must take place if there has been a breach by the appellant of his obligations under the agreement. On the contrary the agreement stated:

"Failure to meet this obligation will result in further action being taken to recover the unpaid maintenance you owe"

 

34.         It was said on behalf of the appellant that the respondent in these circumstances was personally barred from executing diligence in respect of the liability orders. I do not agree. The agreements were made on the basis that in due course there would be a review at the instigation of the Child Support Agency. In the meantime the agreement was that the agreed payments should be made. These payments were not made and in these circumstances the respondent is not personally barred from enforcing the liability orders.

 

35.         In any event, be that as it may, I do not consider that the crave for interdict in this case can stand alone. I refer to the dicta from Macphail at para 24.20:

"The procedure is by way of summary application. In the initial writ craves for interdict and interim interdict are often added to the crave for suspension, for example where a poinding has been executed or a warrant for sale of the poinded goods granted. It is usual to grant interim interdict because in most cases the pursuer's object in raising the action would be defeated if diligence were to be executed. ..."

In my opinion the interdict here is clearly ancillary to the suspension crave. If the suspension crave is incompetent, the interdict crave falls as well. The whole purpose of a summary application under the relevant statutory instrument is to deal with matters quickly. Crucial are the provisions in the statutory instrument regarding sist of diligence namely:

"3. 1. On sufficient caution being found or other security given for-

(a)   the sum sued for with interest and expenses; and

(b)   a further sum to be fixed by the Sheriff in respect of expenses to be incurred in the suspension process;

the Sheriff may sist diligence, order intimation and answers, and proceed to dispose of the cause in a summary manner."

Accordingly, under the correct procedure using the statutory instrument, it is only when caution has been found that the court will consider interim suspension of the right to effect diligence on the defender's property and assets and interim interdict preventing the exercise of further rights of diligence. In my view, it is not appropriate to raise an action for interdict alone. Both suspension and interdict are inherent parts of the procedure to protect the debtor's position in terms of the statutory instrument. To allow the defender the privilege of having diligence sisted in terms of section 3 of the Act of Sederunt, Summary Suspension, SI 993 No 312 caution must be found. If an action for interdict only is raised, it would be raised as an ordinary action and not in terms of the statutory instrument. There would be no requirement for caution. To raise an action for interdict alone would then be a method of avoiding the need for caution. The intention of the statutory instrument is clearly that, before there can be a sist of diligence, the debtor requires to find caution. When he has done so the question of interim suspension and interim interdict can then be considered.

 

36.         I accordingly consider that the Sheriff was correct to take the view that the crave for interdict and interim interdict cannot stand alone. The action accordingly should be dismissed. If the appellant remains of the view that he wishes to sist diligence, it is open to him to raise the appropriate summary application in terms of the statutory instrument and to find caution before moving for interim orders to be granted.

 

37.         Accordingly, for the reasons I have given, this appeal fails. Parties were agreed that expenses in the appeal should follow success. I have accordingly granted the expenses of the appeal to the respondent.