SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS at ABERDEEN

 

B718/09

 

		JUDGMENT   by   SHERIFF J K TIERNEY
		in the cause
		STUART McCALLUM MELVILLE
		Pursuer
		against
		JEANETTE MACLEAN RITCHIE or MELVILLE
		Defender

 

Act: Mrs Mennie

Alt: Mrs McTaggart

 

 

 

 

 

 

ABERDEEN, 9 June 2010.

 

The Sheriff, having resumed consideration of the cause Finds in Fact:-

 

(1) In November 1999, the parties entered into a minute of agreement settling all financial claims arising from the breakdown of their marriage.

 

(2) Included in the minute of agreement was a provision that the pursuer would pay aliment in respect of the child of the marriage, Craig Melville, at the rate of £400 per month as at the date of the agreement with a provision for this sum to increase in line with the UK Retail Price Index. As at September 2009 the amount payable by the pursuer to the defender in respect of remit was £630 per month.

 

(3) Payment was normally made by the pursuer by transfer directly into the defender's bank account. In addition to sums payable under the Minute of Agreement the pursuer would pay additional sums in respect of the child, such as for school uniform and school trips. These payments were normally made by cheque.

 

(4) On or about 13th August 2009, the defender contacted the pursuer by telephone and requested urgent financial assistance in the sum of £2000 to be paid in cash.

 

(5) The pursuer agreed that he would pay the defender the sum of £2,000 but only by way of advance payments of aliment for the months of September October and November 2009 with a small balance carrying forward to the month of December. In addition, the pursuer agreed to pay the defender £187 in respect of a new school uniform for Craig. He offered to give the defender a cheque but she said she wanted cash as a cheque would take too long to clear .

 

(6) On Friday, 14^th August 2009, the pursuer withdrew £2,000 in cash from his bank account.

 

(7) On 16^th August 2009, the pursuer put the cash sum of £2,000 which he had withdrawn from the bank together with a further £200 in cash into an envelope and attended at the defender's house for the purpose of his regular contact with Craig.

 

(8) He handed the envelope containing the cash to the defender and asked the defender to sign a receipt.

 

(9) The defender signed a receipt (No 5/1/3 of process) in the following terms:-

 

"Received £2,200 cash for school uniform and advance in maintenance payments."

 

 

(10) The pursuer countermanded the instructions given to his bank in respect of the payments of aliment which would normally have been made to the defender at the end of August September and October 2009.

 

(11) On 7^th September 2009, the defender's solicitor contacted the pursuer's solicitor advising that the defender's solicitors were instructing sheriff officers with regard to non payment of aliment. The pursuer's solicitors responded on 8^th September narrating the arrangements contained in Finding in Fact (5). On 10^th September 2009, a charge for payment in the sum of £630 in respect of arrears of aliment in terms of Clause 2 of the extract registered minute of agreement was served on the pursuer by a messenger-at-arms. The charge also required payment of a solicitor's fee of £17.95 and a charge fee incurred by the messenger-at-arms of £52.30.

 

(12) As at the date of service of the charge the pursuer was not in arrears in terms of Clause 2 of the agreement. He had made payment of the sum of £630 in respect of the payment of aliment for Craig due in September 2009 by means of the cheque for £2000.

 

(13) As at the same date and by means of the same cheque, the pursuer was in credit in respect of the payments due to be paid to the defender as aliment for Craig for the months of October and November, and was partly in credit in respect of payment due for the month of December. In December 2009 he paid the balance of aliment due for Craig for that month.

 

 

 

Finds in Fact and in Law

(1) The pursuer not having been in arrears of payment of aliment when the charge of 10^th September 2009 was served upon him, the charge should be suspended.

 

(2)                           The defender having wrongly instructed a charge in respect of the payment for the month of September, and the pursuer having paid aliment for Craig for the months of September, October and November all 2009 the pursuer is entitled to (a) interdict against the defender instructing any further diligence in respect of said charge dated 10^th September and (b) interdict against the defender serving a charge for payment under the minute of agreement in respect of the months of October 2009 and November 2009.

 

 

 

THEREFORE (1) Sustains the pursuer's first and second pleas-in-law; (2) Suspends the charge served by messengers-at-arms on behalf of the defender on the pursuer on 10^th September 2009 proceeding upon the minute of agreement executed by the parties and registered in the Books of Council and Session on 22^nd November 1999; (3) Interdicts the defender from instructing any further diligence in respect of said charge dated 10^th September 2009 (4) Interdicts the defender or any agent acting on her behalf from instructing messengers at arms or sheriff officers to serve a charge for payment on the pursuer with regard to any sum due as aliment for the child Craig Melville for either or both of the months of October 2009 and November 2009 in terms of the minute of agreement between the pursuer and the defender registered in the Books of Council and Session on 22^nd November 2009 (5) Finds the defender liable to the pursuer in the expenses of the action; Allows an account thereof to be given in and remits the same when lodged to the auditor of court to tax and to report.

 

 

 

 

 

 

 

NOTE:

[1] The question in this case is whether, as the pursuer contends, he paid the defender £2,200 on the 16^th August 2009 and the defender signed a receipt for the sum of £2,200 for the school uniform and advance in maintenance payments or, as the defender contends, the pursuer gave her the sum of £200, she signed a receipt for £200 for school uniform only, and that the pursuer has falsified the document of 16^th August (No.5/1/3 of process) by inserting the figure 2 before the sum of £200 in the receipt, thereby making the sum read £2,200, and inserting after the words "school uniform", the words "and advance in maintenance payments".

 

Defender's evidence

[2] The receipt 5/1/3 is prima facie evidence of the pursuer's contention and the solicitor for the defender readily conceded that the onus of proof was on her.

 

[3] The defender accordingly gave evidence first and stated that there was no truth in the allegation that she had asked the pursuer for money, other than £187 for a school uniform. She said that the pursuer had only given her £200 in an envelope which she had brought into the kitchen and put on the table where her mother, who was visiting at the time had seen it. She had signed the receipt for £200, not for £2,200, and the receipt had not contained the words "advance in maintenance payments" when she had signed it. She had also inserted the date of 16^th August at the time of signature.

 

[4] The defender's mother gave evidence to the effect that she was aware of the general nature of the maintenance arrangements for Craig, namely that the regular monthly payments, which she believed were in the region of £600, were paid directly into her daughter's bank account, and that any other payments, for example, school uniform were paid by cheque.

 

[5] She had been in the house when the pursuer and the defender had met outside and had not heard or seen anything of what transpired between them. She saw money in her daughter's hand after her daughter had come back into the house, but did not see an envelope. She saw a small handful of notes. Her daughter had told her that she had been given £200 for the uniform and had to sign a receipt but had not been asked for change. She considered the matter unusual because she would have expected a payment of this kind to have been made to her daughter by cheque.

 

[6] The defender also lodged an affidavit by a Mrs Lillian McIntosh who, according to the evidence of the defender and her mother, had been present in the house at the time of the meeting between the pursuer and the defender. According to her affidavit she was in the living room with the defender's mother, the defender went out to see the pursuer and to hand over Craig and a few minutes later the defender came back with some bank notes in her hand and saying she had been given £200.

 

Pursuer's evidence

[7] The pursuer gave evidence to the effect that shortly before 16^th August 2009, the defender contacted him by telephone and requested financial assistance. She said that she had urgent financial commitments which she could not meet and which were having an adverse effect on her health and on Craig's health. He agreed to pay her £2000 by way of an advance against aliment. He had offered to give her a cheque but she had said that a cheque would not clear quickly enough for her requirements. He also agreed to pay her for a school uniform for Craig. He withdrew £2000 from his bank (which appeared on his bank statement for the 14^th August (Production 5/1/4) and on 16^th August attended at the defenders house to pick up Craig for a contact visit. He paid the defender £2200 in cash (being the advance of £2000 plus £200 for a school uniform for Craig) which was in an envelope. He had written out a receipt for the defender to sign, stating the amount he was handing over, namely £2200, and the nature of the transaction, namely payment for a school uniform and an advance of maintenance payments. He had thought it prudent to get a signature because he and the defender were engaged in another litigation wherein the defender was seeking to have the payments under the minute of agreement increased. The defender took the money, counted it and signed the receipt. He identified the receipt, No. 5/1/3 of process as the one which he had written out and which the defender had signed. He said he had given the defender a copy of it. The defender then contacted him in early September 2009 to say that he had missed an alimentary payment and he had reminded her of the payment which he had made in August, being £2,000 in advance of aliment and £200 for school clothes. .

 

[8] He rejected the suggestion that the receipt which had been signed was only for the sum of £200. He denied that he had made any alterations to the wording of the receipt, and in particular that he had inserted an additional "2" in the figure, and the words "and advance in maintenance payments" on the receipt. He stated "It is as signed".

 

[9] He said that he had paid the £2,000 as aliment, and had always paid his aliment for Craig. He maintained this position throughout cross-examination.

 

Submissions.

[10] Mrs McTaggart, the solicitor for the defender, submitted that the defender's evidence had been clear and should be accepted. She had established on the balance of probabilities that the receipt produced (No. 5/1/3 of process) was not as signed by the defender. The defender had signed the receipt for £200 and the receipt had been altered to show the sum of £2,200. The receipt had been simply for "cash for school uniform" and had been altered by the addition of the words "and advance in maintenance payments". She submitted that certain matters, namely the allegation that there were two copies of the receipts and an alleged telephone conversation where the pursuer said he had reminded the defender of the advance of the money had not been put to her in cross-examination. She said there was no evidence that the defender was in any financial difficulties.

 

[11] The solicitor for the pursuer, Mrs Mennie, submitted that only the two parties had been present at the time the money was handed over. There was evidence of the pursuer going to the bank to withdraw £2,000 in cash only two days before the meeting on the 16^th August. This supported the pursuer's position.. The pursuer had given his evidence in a clear and straightforward manner and should be believed. The defender had not discharged the onus of proof.

 

Decision

[12] The defender rightly accepted that she had the onus of proof in this case. She was faced with a receipt bearing her signature but which she said was a forgery in that the amount had been changed and words had been added to it after she had signed it.

 

[13] She was clear in her evidence that only the sum of £200 had been given to her. She was adamant that the receipt that she had signed had been for £200 and that it had stated only that it was for the school uniform.. .

 

[14] The pursuer was equally clear in his evidence that he had been asked to provide £2,000, that he had only been prepared to do so as an advance of aliment, that the defender had accepted this, that he had paid £2,000, that he had sought a receipt because of the circumstances between himself and his wife, including an existing court action for an increase in aliment brought by the defender, that the receipt had contained the sum of £2,200 and had stated that this was in respect of the "school uniform and advance in maintenance payments"

 

[15] Both of the witnesses gave their evidence in an apparently straightforward way, though one of them had to be lying.

 

[16] There was one curious aspect of the defender's evidence when she was asked by her own solicitor:- "When you signed the document that you say you signed, did you think there was anything unusual about the document itself?" Her response to this was "I did hesitate at the time thinking that this was highly unusual to receive cash and not a cheque and also it did enter my mind I would have liked to copy of it if I could".

 

[17] At a later stage of her evidence I asked her which of the figure 2s in the sum £2200 she said had been added, she said it was the first figure 2 and that at the time she had noticed that there was a large gap between the £ sign and the figure 200, and quite a big gap for signature between the narrative of the receipt and the line for signature. The question which had been put to her by her solicitor was very clear and yet she had not mentioned these matters in her answer to her.

 

[18] That concern apart, however, there was not much in the manner of the parties' giving their evidence to assist in assessing credibility and reliability. I did not attach much weight to the evidence of the defender's mother, Mrs Ritchie who did not see the transaction take place and who only saw the notes after the defender had come back into the house and put them on the table. She had been told by the defender what had taken place and how much money had been given to her. Her evidence was consistent with the defender's evidence, but in so far as it related what she herself had observed, it was not inconsistent with the pursuer's evidence. I attached very little weight to the affidavit of Mrs McIntosh. In a matter where the credibility of the two parties was crucial it would not in my opinion be right to attach much if any weight to a witness who cannot be cross- examined or give a personal impression of her truthfulness. The content of her affidavit was broadly in line with the evidence of the defender's mother in that she too did not see or hear what transpired between the parties and only spoke to what the defender had said later.

 

[19] In these circumstances it is, I think, appropriate in determining where the balance of probability lies, to look at just how inherently probable is the scenario put forward by the party who has the onus of proof.

 

[20] What the defender alleges the pursuer has done amounts to an allegation of the commission by the pursuer of the serious crime of forgery. The great majority of the citizens of this country do not commit serious crimes. The defender's case is that the pursuer conceived a scheme to save himself £2000 by altering a receipt which the defender had granted for £200 for a school uniform to read as being for £2200 for a school uniform and an advance payment of aliment. The original receipt, she says, contained spaces into which the alterations could be written. If by design the pursuer must have planned this in advance. If by accident the pursuer must have realised after the transaction had been completed that there were gaps which would support a forgery of this kind and taken advantage of the opportunity. Either way what the defender says the pursuer did amounts to a serious and nasty crime in which the real victim would have been his son

 

[21] It is difficult to see why an ordinary law abiding citizen would do this for such a small reward. The pursuer in this case is, according to the evidence, a business man in Aberdeen. He is the director of a company. If he were to do what he is accused of he would himself benefit to the extent of £2,000 (which there was no suggestion he needed) and he would do so at the expense of his son in respect of whom he had regularly paid aliment over a period of 10 years, not just paying the contractual aliment but in addition paying sums for school uniforms, school events and the like. In addition there is the fact that the pursuer withdrew £2000 from his bank account just two days before the date of the receipt Either this would have been part of the criminal scheme to provide evidence of money being available to be paid in cash, or the pursuer took advantage at a later date of the fact that he had withdrawn the money to set up the alternative scheme of taking advantage of the gaps in the receipt.

 

[22] Not only does the defender not satisfy me on the balance of probabilities that the pursuer forged the receipt in the manner in which she says, it also seems to me that it is fundamentally improbable that that is what he did. In all the circumstances therefore, and on the balance of probabilities, the defender fails and I prefer the evidence of the pursuer.

 

[23] The defender has therefore failed to prove that the receipt was a forgery to the extent of £2,000. I have therefore found as a fact that the receipt was issued in the terms in which it appeared before me in court, namely for £2,200 for a school uniform and as an advance against aliment. That finding having been made, I have also found, consistent with the terms of the receipt, that the pursuer in fact made payment to the sum of £2,200, rather than the £200 contended for by the defender.

 

[24] I accordingly have granted decree in terms of crave 1 of the writ and suspended the pretended charge served by the defender on the pursuer on the 10^th September. I also grant the interdicts sought by the pursuer, with a slight modification to include messengers at arms as well as sheriff officers.

 

[25] The pursuer has enjoyed complete success in the case. I was asked by each party to award expenses in their favour in the event that they were successful. There is no reason not to make such an award in favour of the pursuer and I have done so.