Scottish Sheriff Court Decisions

B2050/05 Secretary of State for Work and Pensions v James McCulloch

Glasgow 6 January 2009           Sheriff Principal Taylor

Act: Sirc

Alt: Personally Present

The Sheriff Principal, having heard the solicitor for the appellant and pursuer and the respondent and defender personally, Allows the appeal; Recalls the interlocutor of 25 July 2008; Assigns 13 February 2009 at 10.00 am in Glasgow Sheriff Court, 1 Carlton Place, Glasgow as a hearing to enable inquiry to be made in terms of Section 39A of the Child Support Act 1991 as to whether the pursuer is entitled to the sanctions craved; quoad ultra Remits the case to the sheriff to proceed as accords.

Sheriff Principal

NOTE:-

Ms Sirc appeared on behalf of the pursuer. Mr McCulloch was personally present.

Ms Sirc explained that a liability order had been made in this court on 22 November 2004 finding the pursuer entitled to payment of £25,013.09 from the defender.

The present action had been raised in 2005. There had been thirteen callings of the case, six of which had been diets of proof. Each proof diet had been discharged either to allow the defender to make payments to account of his indebtedness or to allow the defender further opportunity to vouch his current financial position. Repayments had not been adhered to and the vouching of the defender's financial position had never been made available to the court. I was informed that various requests had been made directly to the defender by the pursuer for details of the defender's financial position but nothing had been received.

At the proof hearing on 28 May 2008 the case had been continued to allow the defender to provide the relevant financial information. At that hearing the learned sheriff had very helpfully discussed with the defender his income and outgoings and explained to him what the court would require. Further time was allowed to provide for vouching of the income and outgoings and the case was continued to 25 July 2008.

At the hearing on 25 July 2008 the learned sheriff inquired of the defender if he had produced the requisite financial information to the pursuer. The defender indicated that he had sent the information directly to the Department for Work and Pensions. The learned sheriff, as it appears from her Note, accepted that he had so sent the information. As the interlocutor accurately records, the solicitor for the pursuer sought time to ascertain from her clients if they had received anything recently. The learned sheriff refused this motion and dismissed the action.

It was submitted that the learned sheriff erred. She had failed to make inquiry as is provided by Section 39A. Upon the pursuer's motion for a continuation being refused the learned sheriff ought to have followed the terms of the statute.

Mr McCulloch, in addressing the court, confirmed that at the hearing on 28 May 2008 the learned sheriff had explained to him what was required. His position was that he had subsequently sent the information to the Department. He had not lodged any documents in the process. He confirmed that at the hearing on 25 July 2008 there had been no inquiry as to his need for a driving licence, his means and whether there had been any wilful refusal or culpable neglect on his part. He confirmed that what had been stated by Ms Sirc to have taken place at the hearing on 25 July 2008 was essentially accurate.

Section 39A(2) and (3) of the Child Support Act 1991 is in the following terms:-

"(2) An application under this section is for whichever the court considers appropriate in all the circumstances of -

(a) the issue of a warrant committing the liable person to prison; or

(b) an order for him to be disqualified from holding or obtaining a driving licence.

(3) On any such application the court shall (in the presence of the liable person) inquire as to -

(a) whether he needs a driving licence to earn his living;

(b) his means; and

(c) whether there has been wilful refusal or culpable neglect on his part."

I note from the terms of the section that the requirements are mandatory. The court must make inquiry as to the factors set out in that sub‑section. The Note by the learned sheriff does not record that there was any such inquiry. Both Ms Sirc and Mr McCulloch were at one in stating that there had been no such inquiry. Accordingly I allowed the appeal.

Given the history I hope that when the case calls on 13 February 2009 it will be given priority and that the hearing will proceed. At the conclusion of the appeal hearing I explained to Mr McCulloch that he would require to produce to the court details of his income and outgoings all as had been explained to him by the learned sheriff on 28 May 2008.