Scottish Sheriff Court Decisions

Sheriffdom of Tayside, Central and Fife at Stirling

 

F12/08

 

JUDGMENT

 

of

 

SHERIFF A. WYLLIE ROBERTSON

in the case

 

 

NJDB

PURSUER

against

 

Mrs JEG

DEFENDER

and

 

John Noel James Andrew, Solicitor

 

CURATOR AD LITEM to [S] AND THIRD PARTY MINUTER

 

For the pursuer:

Halley, Advocate; instructed by Jardine Donaldson, Solicitors, Alloa

 

For the defender:

Buchanan, Advocate; instructed by Virgil Crawford, Solicitors, Stirling

 

For the Curator and Third Party Minuter:

John NJ Andrew, Party

 

 

Stirling 22 January 2009.

The sheriff, having considered the submissions on behalf of the pursuer, defender and curator, (1) refuses to allow the minute for the defender, tendered at the bar and forming number 64 of process to be received; (2) refuses to administer a warning to the defender against self-incrimination for contempt of court; and (3) allows the pursuer's counsel to continue to cross-examine the defender.

 

 

 

Note

Background

[1]   This proof, transferred from Alloa in circumstances it is unnecessary to rehearse and in which parties seek a variation of the contact interlocutors in relation to an eight-year-old child, [S], against a background of acrimony, bitterness and hatred, is now on Day 11. The defender, [Mrs JEG], who has been ordained to lead at the proof, is the child's mother and the only witness so far heard. She has been giving evidence now for eight days. Two and a half days were taken up with examination-in-chief. The curator-ad-litem, Mr Andrew, cross-examined [Mrs JEG] for half a day. At present, the defender has been cross-examined by Mr Halley, counsel for the pursuer, [NJDB], for five days although that cross-examination is not yet concluded.

 

[2]   Just before lunch on Thursday 12 January 2009, Mr Halley was cross-examining [Mrs JEG] about the events of 14 October 2005. The background to this is that the pursuer had enrolled a motion, heard that day, number 7/8 of process, on a reduced period of notice which, inter alia, sought a hearing to be assigned for the defender to be ordained to appear and explain her failure to allow recent contact and sought contact that day, 14 October, until 25 October. The sheriff at Alloa appointed contact to take place commencing 6 p.m. that day and also appointed that the curator should attend and supervise the handover arrangements at 6 p.m. Contact did not take place.

 

[3]   Upon reconvening after lunch, Mr Buchanan, counsel for [Mrs JEG], invited the court to warn [Mrs JEG] against self-incrimination or more particularly that she need not answer any question that might expose her to risk of a finding of contempt of court. Due to the stage that this was raised, the implications for the remainder of her evidence and against the background of Mr Halley making it plain that he would be seeking a finding in fact that she was in contempt of court, I adjourned until the following morning for parties to address me thoroughly on the issue with reference to authorities.

 

Submissions on behalf of the defender

[4]   When he addressed me the following morning, Mr Buchanan's position was more comprehensive and far-reaching. He referred to the following authorities:

Macphail, Sheriff Court Practice, third edition, paragraphs 2.16-2.25;

Walker and Walker on Evidence, paragraphs 12.13.1 and 12.13.2;

Aamer Anwar, Respondent [2008] HCJAC 36, at pp 22-25, 26 and 28;

Beggs v The Scottish Ministers 2007 SLT 235, at pp 235, 236, 238, 239, 240, 242 and 243;

Byrne v Ross 1993 SLT 307, at pp 307, 309 and 310;

Forbes v Forbes 1993 SC 271, at p 273;

Johnston v Johnston 1995 SCLR 888, at pp 888C-889B, 889F-G, 890D and 891C-D;

Macivor v Macivor 1996 SLT 733, at pp 733 and 735;

McFarlane v McFarlane [2007] CSOH 75, at paras [1]-[2], [41] and [42];

Memory Corporation Plc v Sidhu [2000] Ch 645, at pp 645B-D and 660D-F;

Milburn 1946 SC 301, at p 313;

Robertson, Petitioner; Gough v McFadyen 2008 SCCR 21, at pp 21D, 22B-E, 30B-E, 30G-31A, 42A-B and 45A-C;

Sovereign Dimensional Survey Ltd 2008 SCLR 569, at pp 575G-576D and 576E-577B.

 

[5]   His primary position was that because issues of alleged historic contempt, such as the matter involving compliance with the interlocutor of 14 October 2005, had been the subject of proceedings by way of minute for contempt and answers which had been discussed and settled between agents leading to formal dismissal of the minute, he should be allowed time to lodge a further minute setting out the terms of the agreement between agents, the pursuer given time to answer and a hearing assigned to establish the terms of that agreement. Because this would involve issues of credibility and reliability of solicitors who regularly appear before this court it was suggested that I would require to recuse myself from that hearing. Consequently, the present proof would inevitably be interrupted while the facts of the agreement were established.

 

[6]   By the time Mr Buchanan came to respond to Mr Halley's submissions in reply, he had prepared a minute, which he tendered at the bar and forms number 64 of process. This minute craves the court (1) to find and declare that in February 2006 agents for the pursuer and defender compromised issues of alleged contempt of court from events said to have occurred prior to the date of the agreement; (2) to find and declare that the pursuer was barred from insisting on any purported right to complain about issues of alleged contempt of court prior to the date of that agreement; (3) to ordain the pursuer to withdraw and depart from (i) his likely submission that he would invite the court to make findings in fact that the defender is in contempt of court in relation to matters prior to this agreement and (ii) any intention to have the defender found in contempt of court and have her punished in respect of matters prior to the agreement.

 

[7]   I pause to observe at this point that, procedurally, the sheriff at Alloa had, curiously, assigned a proof on the merits in relation to contact to be conjoined with the proof on the pursuer's minute alleging contempt of court. It was stated by Mr Buchanan that in preparing for this proof the agents agreed that the issue of contempt was distracting parties from preparation for the proof on the merits in relation to contact. It was against that background that the agents agreed to compromise the contempt minute.

 

[8]   In formal terms, on 24 February 2006, the sheriff at Alloa, on the pursuer's motion unopposed by the defender, dismissed the minute for contempt with no expenses due to or by either party.

 

[9]   It is condescended upon in the defender's minute tendered before this court that it was agreed, ironically on St Valentine's Day 2006, between the respective solicitors for the pursuer and defender that '(i) the Minute in relation to contempt of court was not to be insisted upon; (ii) the pursuer would make a motion to dismiss the Minute in relation to contempt of court with no expenses due to or by either party; and (iii) the only matter in relation to the action would be restricted to the question of variation of contact.'

 

[10]      Mr Buchanan's secondary position is that until the submission, that the court could make a finding of contempt against her, is withdrawn and departed from, [Mrs JEG] would be entitled to a warning in relation to possible contempt arising from these historic events. Furthermore, she would be entitled to legal advice and that of necessity could not be tendered by her present counsel conducting the proof. It created a difficulty because counsel's instructing solicitors were placed in a position of potential conflict. It was part of Mr Buchanan's submissions that there were no pleadings raising the issue of contempt in relation to these historic matters and that the defender had had no notice of a case in which the court would be invited to make a finding of contempt in relation to them.

 

[11]      In the course of his submissions, Mr Buchanan raised a separate issue of potential difficulty, which was in relation to a suggestion from Mr Halley that a submission might be made on the nature of advice given by the defender's present solicitors, I presume at the time of the police investigation about which I have heard some evidence, for which there was no line on record and, if insisted upon, would create a potential conflict of interest between agent and client. As this was no more than a comment in passing and no substantial argument was presented on it, it is unnecessary for me to deal with that issue at this stage.

 

Submissions of behalf of the pursuer

[12]      Mr Halley, in opposing the invitation to warn the witness, began by seeking to remind the court of the purpose of these proceedings which was, as he saw it, an overdue proof regarding the welfare of a child against a background of significant obstruction on any view on part of the defender and delay adverse to the interests of the pursuer. Mr Buchanan's submissions fall to be considered, in Mr Halley's view, as an inappropriate mechanism that would inevitably cause further delay prejudicial to the pursuer's legitimate interests and, factored into those interests, harmful to the welfare of the child.

 

[13]      He emphasised that the present proceedings were not contempt proceedings. There is no crave seeking contempt and there are no averments about contempt 'as such'. Mr Halley observed that he was cross-examining [Mrs JEG] on evidence her counsel had elicited in chief, evidence which had, no doubt, been given with the benefit of legal advice, and in the context of which the defender had made it quite clear that in this case she had seen fit to decline to obtemper interlocutors of court not just in 2005 but prior to and, as evidence will show, after that. This is the defender's own evidence, elicited in examination-in-chief and is being subjected to cross-examination. Mr Halley submitted that he was entitled to have the witness explain and clarify evidence already given including admissions made on oath. He is entitled to cross-examine [Mrs JEG] to test her credibility and reliability. Evidence having been admitted, it is at large in this proof hearing. What will be made of it is another matter.

 

[14]      Mr Halley confirmed that he may well ask the court to make findings in fact such as that on 14 October 2005 sheriff at Alloa issued an interlocutor providing that contact take place; that contact did not take place; that the defender decided instead that [S] should go to his aunt's house. What is made of the evidence and any proposed findings in fact are matters for submission about which the court can entertain, evaluate and exercise its judicial function in relation thereto.

 

[15]      In his submission, [Mrs JEG] was not entitled to a warning about contempt of court because she is only being asked about matters that counsel has already asked her about and about which she has given forthright and direct evidence. He referred to the definition of contempt contained within Macphail at paragraph 2.18 and, with reference to paragraph 2.19, submitted that wilful refusal to obey a court order could be contempt. In Mr Halley's submission the witness has admitted such conduct. No question of a warning arises because principally the admitted behaviour was elicited in chief and therefore, one assumes, with the benefit of legal advice. Mr Halley emphasised, however, that it is the court's jurisdiction and power to deal with contempt if and when a finding is made. Reference was made by Mr Buchanan to various cases in which a finding was made where minute and answer or petition procedure had been adopted. Mr Halley submitted that we are not in that particular area. Under reference to Robertson and Gough, he submitted that the court could only make a decision that a prima facie contempt has been committed after hearing all the evidence and the submissions of parties. Only at that stage does the issue of having the witness independently legally advised arise. Those circumstances do not pertain at the moment. She is merely being cross-examined on evidence she has already given in chief. She does not require, and should not be given, any warning.

 

[16]      Mr Halley also considered that his view was fortified by what is averred on Record, number 60 of process. He referred to the following averments for the pursuer:

On page 2:

'Following 7^th July 2004, the Defender refused to allow contact to happen on numerous occasions. The Pursuer raised Contempt of Court proceedings.';

On page 11:

'Explained and averred that the Pursuer having grave concerns in respect of the safety of his son instructed that a motion be lodged at court for interim residence and having concerns that his contact period granted by Interlocutor of 20^th September 2005 would be in jeopardy and believing in the circumstances that the Defender would fail to allow the contact to [S], requested an interim interdict be granted against the Defender taking [S] on holiday with her or making other arrangements for [S]'s care other than that ordered by the court. During a Hearing on 5^th October 2005 the Defender stated to the court that [S] would not wish to go for contact as he was looking forward to going on holiday, this despite the order of court for residential contact commencing the following day and for a period of six consecutive days. The court recommended the Curator at Litem attend in case there were any difficulties on the 6^th October 2005.

 

Further explained and averred the Pursuer attended for contact as ordered on the 6^th October 2005 at 6pm and was informed by the Curator ad Litem that [S] would not attend for contact. The Defender and her husband had taken [S] upstairs and would not allow him to come down. The Curator ad Litem stated to the Pursuer that even if the Defender and [S] wished contact to take place that the Defender's husband would have prevented it. The Pursuer was not allowed to speak with [S]. Contact did not take place. The Curator ad Litem informed the Defender she would be in contempt of court to which she indicated she would take that on the chin.'

On page 12:

'The Defender continues to disregard orders made at court. ... Explained and averred that because the Defender has not adhered to the terms of the orders of court this has caused [S] to be upset and confused.'

On page 13:

'The pressure from the Defender on [S], her constant disregard for the orders of court and enticements, under explanation these are for example explained and referred to be such as organising holidays during court ordered contact and encouraging [S] to wish to go on family visits or outings instead of contact are blatantly contemptuous of the orders of court.'

On page 14:

'In respect of the Defender being happy for the Pursuer to continue to have contact to [S], explained and averred that she continues to fail to obtemper the courts [sic] interlocutors, two motions for contempt of court having already been lodged in process, following the Minute for Contempt. Explained and averred that the problems with the present contact arrangements are clearly at the instigation of the Defender.'

 

[17]      Mr Halley submitted, particularly having regard to the averments on page 13, that one could hardly have clearer notice that contempt is a live issue at the stage of this proof. However, apart from that detail in the pursuer's pleadings, the curator's pleadings contain numerous references to contempt of court. For example:

On page 23:

'The defender had earlier in the meeting indicated to the Curator ad litem that she understood that there was a Court Order for contact but that on her own responsibility it was not going to happen. The Curator ad litem indicated to her that consequences would follow. Believed and averred she had had appropriate prior legal advice from her solicitor to whom the Curator ad litem spoke by telephone after the unsuccessful handover. The defender did not say that she would not take anything "on the chin": that was the Curator ad litem's paraphrase of the consequences when he subsequently spoke with the pursuer. The terms of the defender's letter of 31 August 2005 to the Curator ad litem are admitted. Admitted the defender continues to breach orders of the Court, maintaining she has justifiable reasons for doing so. Admitted [the defender's husband] is now trying to frustrate contact for the same reasons.'

On page 24:

'In view of the alleged disclosures, and their nature, the Curator ad litem had and has reservations about whether anything remotely resembling an amicable relationship between pursuer and defender and [the defender's husband] can ever be restored. The Curator ad litem was instructed to observe a contact handover on 14^th October 2005 at 6 pm. The Curator ad litem attended. Both the defender and [the defender's husband] expressed vocal opposition to the Court's decision of that date. He indicated they were unaware of the fact that more contact was being sought and had only been told in advance of the motion being heard that the only subject for discussion at Court was to have been the alleged contempt on 5^th October 2005.'

 

[18]      In Mr Halley's submission, issues of contempt scream out from the pursuer's pleadings and he hypothesised that this was why Mr Buchanan raised them in his examination-in-chief of the pursuer. In that situation Mr Halley is obliged to cross-examine her on these issues. The court can safely proceed on the assumption that they were raised on legal consultation and advice and in no circumstances is the witness entitled to a warning at this point.

 

[19]      As a fallback, in the event that the court was against Mr Halley in his principal stance, or, he submitted, if the court was in significant doubt having regard to what is said in Robertson and Gough and other cases cited, then the court should warn the witness in the normal fashion, the authorities not supporting the submission that contempt is in a different position from other matters. Mr Halley considered that it was not necessary for a different counsel to advise the defender at this stage. However, he observed that issuing a warning would potentially disable him from cross-examining the witness on matters upon which she had already given evidence in chief.

 

[20]      Having regard to the reference by Mr Buchanan to the agreement reached between solicitors on the previous minute for contempt, Mr Halley observed that Sovereign Dimensional Survey Ltd pointed to any discussion between those agents being privileged. However, it was not accepted that any agreement as contended for on behalf of the defender was reached. This is not a matter the court can deal with or should entertain. Nevertheless, if it was contended that there had been such an agreement, exception would and ought to have been taken to the averments he had highlighted. Nowhere on Record was there any averment about an agreement between agents. It is clear on the face of the Record that contempt has been around and the issue was still around at this proof. The article 6 and article 8 rights of the pursuer and [S] are engaged. The defender's minute should not be received.

 

[21]      So far as it was suggested there was potential conflict between the defender and her agents and counsel, this is not a matter that the court can deal with. He described Mr Buchanan's submissions as bizarre and, if followed, exposed the court to the distinct possibility of ridicule. The primary issue is the welfare of the child. The sooner that issue is resolved, the better. Mr Buchanan's submissions will result in delay in a case that Mr Halley, in his submission, had already been blighted by deliberate delay and frustration.

 

Curator's submissions

[22]      Mr Andrew's position so far as any agreement is concerned was hindered by the fact that he was not a party to that agreement. Accordingly, he could not assist the court in that regard. In any event, he did not know how important this agreement would be because Mr Halley, as he understood the position, would be founding on subsequent actings too. He observed that if the agreement between agents was as Mr Buchanan contended then he would have expected to see absolvitor, rather than dismissal, to put the matter beyond doubt.

 

[23]      So far as the issue of a warning is concerned, Mr Andrew was cognisant of the opinion of Arden J. in Memory Corporation Plc v Sidhu at page 660E: 'In this case the defendant is subject to cross-examination which may or may not lead to proceedings for contempt. It does not seem to me to be a valid distinction that he is giving evidence at this earlier point in time rather than in proceedings for contempt. It seems to me to follow from the fact that Mr Sidhu is not a compellable witness in any contempt proceedings that he should be entitled to the privilege against self-incrimination in these proceedings, particularly as he is sought to be cross-examined on an affidavit sworn pursuant to an order of the court.' However, in discussion he accepted what would appear to be an inherent unfairness in [Mrs JEG] having answered questions in regard to these matters asked by her counsel without a warning and then being potentially disabled from being cross-examined upon them should she be warned and elect, in conformity with the warning, not to answer Mr Halley's questions. His concluded view was that the issue of a warning comes too late, and should not be given.

 

Discussion

[24]      In my view, Mr Buchanan's primary and secondary submissions fall to be rejected for a number of reasons.

 

[25]      This is an action in relation to contact to [S]. It is not an action to find the defender in contempt and to punish her. While, of course, it is always pars judicis for the court to notice contempt, that is quite a different matter from an action, for instance, as has already has been taken on one or two occasions in this process, by one party, normally in the form of minute for contempt, to find the other party in contempt of court and to inflict punishment. That is a distinct process, which has particular formalities such as the standard of proof being beyond reasonable doubt and the suspected contemnor not being compelled to give evidence (Macphail, paragraph 2.21). It is all the more surprising in these circumstances that, at one stage in the lengthy and tortuous procedural history of this litigation, it was seen fit to conjoin a contempt hearing with a proof at large on the question of contact.

 

[26]      This proof is to determine what variation, if any, should be made to contact. That determination will be made on an assessment of the evidence, [S]'s interests being paramount, and the civil standard of proof on the balance of probabilities will apply. The defender, [Mrs JEG], is a compellable witness in this process, but of course she has already elected to give evidence and has been doing so now for many days.

 

[27]      I am indebted to Mr Buchanan for providing an impressive array of authorities in relation to the issue of contempt at such short notice. None of the authorities arose from circumstances akin to those in the present case. Perhaps the closest is Memory Corporation Plc v Sidhu, but that, as Mr Buchanan readily accepted, is an English case arising out of a particular procedure whereby a defendant had been ordered to make disclosure of and swear an affidavit as to his assets which were subject to worldwide freezing orders and to attend for cross-examination thereon. There was a proviso to the order that no record of the cross-examination was to be used by any person other than the defendant for any purpose without his consent or the court's leave, and he declined to answer any question relating to the assets by virtue of the privilege against self-incrimination. Now, I readily accept, as did the curator, that it was recognised when cross-examined, that it may or may not lead to proceedings for contempt and that the defendant would not be a compellable witness in any contempt proceedings. Because of that, it was considered that he would be entitled to the privilege against self-incrimination when being cross-examined. In my view this authority, which is not binding on me in any event, arises out of peculiar and particular circumstances whereby the defendant was ordered to swear an affidavit about assets that were subject to a worldwide freezing order. The very nature of the proceedings in that case were more directly engaging issues of potential contempt of court than in the present litigation where the principal object, and indeed the only issue from a proper reading of the craves, averments and pleas-in-law of parties on Record, is whether contact should be varied.

 

[28]      It is quite apparent from the pleadings, particularly those referred to by Mr Halley in the pursuer's pleadings but also from the pleadings of the curator quoted, that the issue of whether the defender had acted in defiance of court orders, and even behaved contemptuously towards them, is an issue that the pursuer and curator would be attempting to prove. It follows that the court would be asked to make findings in fact based on the evidence led about these matters on record. That is an obvious and inevitable inference from the pleadings. Mr Halley accepted that he could ask the court to make a finding that the defender had acted in contempt of court's interlocutors, but could go no further than that.

 

[29]      He considered, nevertheless, having made such a finding, that it would be an inevitable consequence that the court had power to punish the defender. With that consideration, I do not agree. Any finding in this process that, as a matter of fact, the defender has behaved contemptuously in relation to a court order would be a finding that is made on the balance of probabilities and not on the sterner, criminal standard of proof beyond reasonable doubt. It would be a finding that is made in a process where the defender is and has been treated as a compellable witness. It would not, in my view, be open to the court in this process to inflict punishment on the defender where the civil standard of proof had been applied and the defender had not been warned that she was not a compellable witness. That is one reason why I consider that it is not necessary and is, indeed, inappropriate, to warn [Mrs JEG] at this stage that she is not obliged to answer any question the answer to which might incriminate her in contempt of court.

 

[30]      Furthermore, it is in my view inherently unfair and inappropriate to administer a warning to [Mrs JEG] at this stage when she has already given evidence in chief elicited by her own counsel in relation to the matters upon which Mr Halley seeks to cross-examine. If the defender elected, in light of the warning, to refuse to answer Mr Halley's questions in cross-examination I would be left in the invidious position of having to assess her evidence on this issue on the untested testimony given in chief when it is clear from the pleadings, and in the clearest terms, that her behaviour is said by the pursuer to be wilfully defiant and contemptuous of court orders. That, in my view, is an impossible task for any fact-finding tribunal to undertake. It is most definitely in the interests of [S] that the evidence which his mother has given in chief in relation to her attitude to court orders should be subject to scrutiny, in conformity with the pleadings, so that her evidence can be properly assessed and evaluated. It is necessary, for such an exercise to be carried out, that she is obliged to answer questions in cross-examination in relation to issues about which she has given evidence in chief. To administer a warning to her at this stage to the effect that she is not obliged to answer such questions would be fundamentally unfair and improper and would in my view contravene the pursuer's article 6 rights to a fair trial.

 

[31]      In proceedings such as the present in which the court is engaged, it is common for there to be averments that one party, or both, will have acted contrary to orders of court in relation to the question of contact. It would, in my view, be contrary to the interests of justice, contrary to the interests of the child and perhaps also contrary to the interests of parties having regard to their right to a fair trial in terms of their article 6, and perhaps also article 8, rights, if the court was disabled from inquiring into circumstances in which, for instance, a contact interlocutor had not been adhered to when those circumstances might be relevant, and indeed perhaps even fundamental, to considerations of the child's welfare and whether contact should be allowed, withdrawn or varied. That is, however, the potentially repercussive effect if, because of the spectre of possible contempt of court proceedings, a party was not obliged to answer questions on these material issues, or even might be held, logically, not to be a compellable witness. It would be absurd that a party could ignore, disobey or defy a court order for contact and not be compelled, in proceedings such as the present, to explain why he or she had done so.

 

[32]      In the context of proceedings such as the present case, motions or minutes seeking to invoke the court's power to find a party in contempt of court are commonly enrolled, often too readily. The nature of contempt, when it is alleged, is such that it must be dealt with summarily. By that term, I mean that it must be dealt with without delay. There must of course be proper inquiry and an opportunity for the suspected contemnor to oppose it. Often, after such a motion or minute is enrolled, agreement is reached in relation to contact and the issue of contempt is then continued or otherwise held in abeyance as a sword of Damocles over the suspected contemnor as a means of compelling a party to allow contact. That is, in my respectful view, an improper use of contempt proceedings and should never be countenanced by the court. Proceedings for contempt of court should not be engaged upon lightly. When they are enrolled, the serious nature of them and the potentially penal consequences should always be recognised. They should be the subject of separate, distinct and immediate inquiry in circumstances where the suspected contemnor will be afforded the protections to which I have already alluded at a hearing to establish whether or not he or she is in contempt of court.

 

[33]      What I take from the authorities, when dealing with issues of this nature as opposed to issues of contempt which arise directly in the presence of the judge or sheriff, is that if a party or a witness is to be subject to proceedings in which that party is sought to be found in contempt of court and punished therefor, then that can only arise in circumstances where that party is made expressly aware that he or she is to be specifically brought before the court for that particular purpose. Normally, it would be done by the enrolment of a minute for contempt, as has been done on more than one occasion in this process. The party would then be on notice that he or she may be held in contempt of court, entitled to obtain legal advice thereon, lodge answers and at any hearing, if contempt is not admitted, the party would not be a compellable witness and a finding of contempt could only be made on proof beyond reasonable doubt.

 

[34]      I turn now to the issue of the alleged agreement. When counsel for the defender first raised this matter, the precise terms of the agreement were not specified. It is to be observed in the minute that Mr Buchanan has now tendered, that the averments of fact as to what was agreed between the solicitors for the pursuer and defender in February 2006 are, firstly, that the minute for contempt was not to be insisted upon; secondly, that it would be dismissed with no expenses due to or by either party; and, thirdly, the action on the merits would be restricted to the question of variation of contact. That last averment is vague and imprecise. It does not say that the pursuer agreed that he would not complain about the defender's conduct that had been the subject of the contempt minute. That minute had merely been dismissed, which leaves the prospect open that it might be raised again, subject, of course, to all defences that might be open to the defender. It is not averred on behalf of the defender that the pursuer had given up his right to complain about the defender's behaviour in relation to court orders. In my view, that averment of fact, in the minute tendered on behalf of the defender, is wholly insufficient and imprecise to found any plea of personal bar against the pursuer.

 

[35]      In any event, such an issue comes too late. If the defender was taking exception to the averments of the pursuer and curator about her behaviour and attitude towards court orders, that should have been raised long before now by the introduction of averments about this agreement in her pleadings with relevant pleas-in-law, before the defender could found upon it in the manner she now seeks to do. That has not been done and it would, in my view, be entirely improper for this issue to be introduced at this very late stage after the defender has given evidence for eight days. For these reasons, the defender's motion to allow his minute to be received must be refused.

 

[36]      In any event, it cannot be said that the defender's behaviour and attitude to court orders would not be relevant to 'the issue of variation of contact'. So, even taking what the defender seeks to prove in relation to this agreement at its highest, it cannot reasonably be argued that such evidence would be excluded. Such evidence would almost always be relevant in considering any variation to a contact order.

 

[37]      Although not a basis for my decision, it is instructive to consider what implications flow from my decision. The implication for this process is that the defender's evidence, given in chief, can be properly tested in cross-examination in relation to issues which are crucial and relevant to the central issue in this case of determining, having regard to [S]'s best interests, what contact, if any, there should be between [S] and his father. Whether the defender has complied with court orders in the past and, if she has not, her reasons therefor, may be relevant to the determination of that issue. It means that the evidence so far given by the defender can be properly tested and the defender given an opportunity to reply to the propositions that will be put to her in line with the pursuer's pleadings. It is as much in the interests of the defender that she is given that opportunity as it is for the pursuer to have the opportunity to test her evidence. It has the result that the defender's evidence is not tainted or weakened when it is evaluated for weight, similar to evidence given, for instance, by affidavit that has not been able to be cross-examined. It is difficult to see what prejudice there can be to the defender in this process.

 

[38]      While I was not addressed on this aspect and I have not come to any concluded view, I am not immediately persuaded that any evidence the defender gives in this proof could necessarily, in the absence of a warning, be founded upon as proof that she is in contempt in any future, separate proceedings that may be initiated to find the defender in contempt of court and punish her.

 

[39]      It would also be incongruous that I should, by warning the defender now at her own counsel's invitation, seek to protect or preserve the integrity of future proceedings for contempt of court that may never arise, at the expense of weakening the weight of her own evidence in this case when it comes to evaluating her testimony, particularly when, arguably, it could be said that crucial testimony has already been given in chief. For example, in chief [Mrs JEG] was examined on the issue of whether contact took place on 14 October 2005, which is precisely the aspect upon which Mr Halley was about to cross-examine her when the issue of a warning arose, and although at this stage I am unable to come to any view on the importance or effect of this evidence, the following exchange took place in chief:

'Did [S] go for contact on the 14th October? - No, he did not.

And what was the reason for him not going for contact? - Well, the reasons for him not going for contact were (a) he did not wish to go for contact and was making that very clear both vocally and through his actions and (b) my husband and I still did not feel that contact with [NJDB] was in his interests so it was very difficult for us to encourage contact.'

 

[40]      On any view, this evidence is a legitimate and obvious area upon which Mr Halley would wish to cross-examine the defender. It would be detrimental to the interests of a fair trial and the determination of what may be in the best interests of [S] that Mr Halley might be disabled, by the giving of a warning to the defender, from cross-examining her on this evidence.

 

Decision

[41]      Accordingly, for the reasons I have given, I shall (1) refuse to allow the defender's minute to be received; (2) refuse to administer a warning against self-incrimination to the defender; and (3) allow the pursuer's counsel to continue to cross-examine the defender.