Scottish Sheriff Court Decisions

SHERIFFDOM OF TAYSIDE CENTRAL &FIFE

At Kirkcaldy

YOLANDA LUCIA MARIA TURNER -v- HUGH TURNER F486/05

Act Hughes, instructed by Campbell Smith, Edinburgh

Alt Cooke, McKenzies, Kirkcaldy

Kirkcaldy, 22 September 2009

The Sheriff having resumed consideration of the cause finds no expenses due to or by either party.

NOTE :

I issued my decision in the divorce action on 6 August 2009, with the cause being continued to 15 September for a hearing on expenses. On that day I heard from Mr Cooke for the defender, who sought expenses from 25 October 2007, accepting that up to then, there should be no expenses due to or by either party. His main reason for seeking an award was that the defender had been successful in establishing that there was a binding agreement reached between the parties at court on 25 October 2007, and that the normal rule of expenses following success should be applied. The defender had been put to considerable time and expense due to the refusal of the pursuer to accept that there was an agreement, and therefore it was fair and reasonable that the defender should be relieved of any expense as a result of her actings. The pursuer had changed her position at least twice as could be seen by the two minutes of amendment that had been lodged on her behalf as numbers 15 and 26 of process. These required to be considered and answered by the defender. There had been considerable procedure culminating in a lengthy proof, where the defender had been successful in the principal issue. Accordingly, he was entitled to expenses.

This was opposed by Counsel for the pursuer. Her position was that there should be no expenses due to or by either party, both before and after 25 October 2007. This was justified, she argued because although I had found against the pursuer on the question of whether there was an agreement, I had preferred her evidence over that of the defender when it came to consideration of the section 9 principles, and my decision had made it plain that had section 9 been the basis for my decision on a fair and reasonable settlement of matrimonial assets, the defender would have received substantially less than had been contained in the minute of agreement. I had found that the pursuer had suffered economic disadvantage, that she had the substantial burden of childcare and that she had a reduced earning capacity. She would have difficulty in raising funds to meet the capital sum due to the defender. In these circumstances I should make no award of expenses.

I was referred to a number of authorities, and texts. In his book "Divorce and Dissolution of Civil Partnership in the Sheriff Court" Mr Bennett advises that "The question of expenses is bound up intimately with the division of the matrimonial ... property and the effects of that division on the parties' resources." Reference was made to Little v Little 1990 SLT 785, where at p790 B the Lord President (Hope) said "The question of expenses was pre-eminently one for the exercise of discretion, That is the effect of s22 which abolished the previous rule.... The error was said to lie in the failure to apply the normal principle that expenses should follow success. But that is not a principle which can be applied in its full rigour to cases of this type and it may be quite inappropriate to adopt it in a case where much trouble has been taken to achieve a fair division of the matrimonial property with the full co-operation of both parties. There is much to be said, therefore, for the view which the Lord Ordinary has taken that the parties conduct rather than the result itself should be the principal criterion upon which to proceed. The whole matter is bound up intimately with the division of the matrimonial property itself and the effects of that division on the resources of the parties." I was reminded that the pursuer had to embark on a particular course because of the actings of her agent. It was not unreasonable for her to maintain her position that the agreement was not made with her authority, or was not fair.

I was then referred to Whittome v Whittome (no2) 1994 SLT 130, where at p132, the Lord Ordinary gave a number of consideration which had caused him to act as he did, in awarding the wife her expenses, modified to 75%. These were that she was successful in some of the aspects of the dispute; that her conduct of the litigation was generally reasonable; and thirdly that weight had to be given to the practical effect of the determination of the question of expenses on the respective assets of the parties. I was also referred to DeWinton v DeWinton (no2) 1997 GWD 2-58; Adams v Adams (no2) 1997 SLT 150, and Cameron v Cameron 2002 SLT(Sh Ct) 22. Each of these cases required to be decided on its own merits, but in each consideration was given to conduct during the litigation, and the effect of an award of expenses on resources.

The pursuer's Counsel referred to the unusual features of the case. The pursuer had gone to considerable lengths in advancing her argument that no agreement had been reached with her authority, and esto there was an agreement, that it was unfair and unreasonable. It had to be conceded that the defender had been successful in his insistence that there was an agreement, but the pursuer had been preferred to the defender when consideration was given to all other factors, such as source of funds, acquisition of houses, the intended use of the bonds, the burden of childcare, and the effect of the marriage on her career. The defender had done "very well" out of the marriage, and the agreement. The pursuer would struggle to implement the agreement without selling the house, which had been her primary motivation and goal. Given the very wide discretion available to the court, and the fact that expenses can be dealt with in ways other than by following success, it would be appropriate for there to be no expenses due to or by either party.

I have considerable sympathy with the situation in which both parties find themselves. In particular, the defender has been able to maintain his position that an agreement was reached on 25 October 2007. On the other hand, the pursuer has been able to show that had there been no such agreement, the payment to the defender would have been substantially lower than he will now receive. Additionally, it is clear that any award of expenses will have a considerable effect on the pursuer's resources, having regard to what would have been a fair division of matrimonial property. I am also clear that had the agreement been implemented, it would have been during 2008, and there would in any event have been further court expenses, just to have decree of divorce awarded. It would be unreasonable for the pursuer to be responsible for those expenses which would have been incurred whatever the outcome. So the full award sought by the defender from 25 October 2007 is unreasonable. I must also have regard to the other factors. Firstly, the pursuer's success or otherwise in the dispute. The pursuer has failed in her primary objective, of having the court confirm that there was no binding agreement. She may well have satisfied me that any award that might have been made, but for the agreement, would have been substantially smaller, but that is of little consequence, given her loss of the principal argument. It can be argued that the defender's action for division and sale was unnecessary, and only added to expense. Ultimately, it was dismissed, so the pursuer in this action had a modicum of success there. The second factor, the conduct of the litigation, follows a similar fate. Had the pursuer accepted that there was an agreement, much of the expense post 25 October 2007 would not have been incurred. Additionally, there were two substantial amendment exercises, and the withdrawal of agents and counsel at an earlier proof diet, which can be directed at the pursuer, whilst the only criticism that can be levelled at the defender is that he refused to negotiate on the agreement, with some justification as it turned out. The third factor is the effect of an award on the resources of the parties. I cannot be blind to the fact that the defender is receiving some £20,000 more than I would have awarded but for the agreement. The pursuer will have to realise most if not all of the cash assets available to her just to pay the capital sum. To pay the defender's expenses as well as her own will be a significant burden which will require her in all probability to sell the matrimonial home. That was exactly what she did not want to do, and I do not consider it to be reasonable, for her or for the children.

A further factor, which was not advanced by parties, but which I consider material, is that the value of the matrimonial home, being retained by the pursuer, is substantially less than it had been at the time of the agreement in 2007. This downturn in value has not affected the defender at all, the 2007 value being the one used by agents in reaching the agreement on 25 October 2007. Considering all of the facts, and particularly the effect on the pursuer's resources of an award of expenses, I have come to the conclusion that the fairest disposal is for each side to bear their own costs.