SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT DINGWALL

		JUDGMENT by CHARLES NORMAN STODDART, Temporary Sheriff Principal
		in
		APPEAL
		in the cause
		MURRAY BLACK (Assisted Person), presently residing at c/o 20 Seymour Street, Dundee.
		Pursuer and Appellant
		against
		ANITA McKEEVER or BLACK (Assisted Person), residing at 19 McKenzie Place, Avoch, Ross-shire, IV9 8QW.
		Defender and Respondent ___________________________

For the Appellant: Mr Harold Joseph, Solicitor, Glasgow.

For the Respondent: Mrs Helen Forbes, Solicitor, Civil Legal Assistance Office, Inverness.

DINGWALL, 16 December 2010.

The Sheriff Principal, having resumed consideration, FINDS AND DECLARES that the house at 19 McKenzie Place, Avoch, Ross-shire, IV9 8QW is a matrimonial home as defined in Section 22 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981; quoad ultra REFUSES the appeal; ADHERES to the interlocutor pronounced by the Sheriff on 17 June 2010; REMITS to the Sheriff to proceed as accords; FINDS no expenses due to or by either party in respect of the appeal.

NOTE:

Introduction

[1] In this action Murray Black ("the Appellant") craved two orders under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 ("the 1981 Act") in which he sought (1) to enforce his right to occupy the matrimonial home in Avoch which, until May 2010, he occupied with his wife Mrs Anita Black ("the Respondent") and (2) to protect his occupancy rights in the home by means of an interdict against her from preventing him (in various ways) from such occupation. These craves were respectively brought under sections 3(1)(b) and 3(1)(e) of the 1981 Act. The Respondent is the tenant of the matrimonial home, while the Appellant is a non-entitled spouse under the Act. The parties have one son, now aged 17, who continues to live with his mother.

[2] The case called before the Sheriff on 17 June 2010 for a hearing on interim orders sought by the Appellant under section 3(4) of the 1981 Act in respect of both of these craves. Having heard parties, he refused to grant both interim orders and added a comprehensive Note to his interlocutor explaining his reasons. It is against that refusal that the present appeal has been taken.

[3] While the appeal was pending, the original Note of Appeal appears to have been amended by the Appellant's former agent and it was this amended Note which came before me at the hearing of the appeal in Dingwall on 26 November 2010. At the commencement of the hearing I dealt with a motion made at the bar on behalf of the Appellant to add a new crave 1 with a supporting plea-in-law, seeking declarator that the house in which the Respondent resided was indeed a matrimonial home as defined in the 1981 Act. This amendment was not opposed on behalf of the Respondent and I granted the relative motion.

Submissions for Appellant

[4] Mr Joseph confined his submissions to the new first ground of appeal and the renumbered second and third grounds. He explained that his client suffered from mental illness, which took the form of a bi-polar disorder. The action had been raised because, after his client had undergone a period of hospitalisation, he had returned home to find that his wife had changed the locks. He then took me through section 3(3) of the 1981 Act, which set out the test for applications under section 3(1). This made it clear that a court might make such final order under section 3(1)(b) or 3(1)(e) as appeared to be "just and reasonable" having regard to all the circumstances of the case, including the list of matters set out in subparagraphs (a) to (e). So when a court came to consider an order under section 3(3), the existence of that list did not preclude other circumstances from being taken into account. But section 3(3) related to the grant of a final order and was to be contrasted with section 3(4), which set out the test for an interim order under section 3(3); such an order had to be "necessary or expedient" in relation to three matters listed, which included "(a) the residence of either spouse in the home to which the application relates". The term "expedient" was defined in the Shorter Oxford Dictionary as:

"advantageous; fit, proper or suitable to the circumstances of the case"

while in Cassell's Dictionary it was defined as:

"promoting the object in view; advantageous; convenient; conducive to personal advantage".

It was clear that "expedient" did not mean "necessary"; and that the grant of a final order under section 3(3) might be justified on circumstances different from those which might justify an interim order under section 3(4).

[5] Mr Joseph then submitted that the sheriff had erred in paras. 3 and 4 of his Note. The net effect of his decision had been to exclude the Appellant from the matrimonial home, even although no exclusion order (interim or final) had been sought by the Respondent under section 4 of the 1981 Act. A non-entitled spouse could only be excluded by means of such a court order; the Respondent had taken the law into her own hands by changing the locks on the matrimonial home.

[6] Further and contrary to the views of the Sheriff, Berry v Berry 1988 SLT 650 did have some relevance to the present case; in particular section 3(3)(a) of the 1981 Act required to be considered. Berry made it clear that the phrase "conduct of the spouses in relation to each other and otherwise" related primarily to their conduct in relation to the occupancy of the matrimonial home; here, the Respondent had changed the locks, a highly relevant circumstance and one which alone would entitle the Appellant to succeed in the present appeal.

[7] Mr Joseph then submitted that both interim orders sought were merited and ought to have been granted; in particular the test for an interim interdict in terms of the original crave 2 was satisfied. In the discussion at paras. 4.2 and 4.3 of his Note, the Sheriff had erred in his assessment of what was "expedient". The need for the Appellant to receive regular medical treatment had been recognised, but although the Sheriff had described the fact that the Appellant would require to travel to get treatment and to see his son at Avoch as perhaps even "a significant inconvenience", he had been wrong to hold that it was not "necessary or expedient" for him to live in the matrimonial home in the interim; indeed at para. 4.3 he had recognised that this would be "convenient". The term "expedient" extended to the Appellant being with his son in the matrimonial home; insufficient weight had been given by the Sheriff to this consideration, as also to matters of medical treatment and travel. If the present situation continued, the Appellant might have to live in a hostel, something not conducive to his health.

[8] On the whole matter, Mr Joseph moved me to grant summary decree in terms of the (new) first crave, to recall the interlocutor of 17 June 2010, to grant the interim orders craved and thereafter to remit to the Sheriff to proceed as accords.

Submissions for Respondent

[9] Mrs Forbes stressed that section 3(4) of the 1981 Act gave the court a wide discretion to make an interim order. It was not clear that any such order need necessarily be a mirror of any final order which might be pronounced under either of the two original craves. The Sheriff had clearly taken all relevant factors into account and had applied the correct test by focussing on what was "necessary or expedient". Further, the Sheriff was correct to hold that Berry v Berry was not relevant to the present case; but even if the court did have to consider section 3(3)(a), the conduct of the spouses in relation to the occupancy of the matrimonial home included an incident where the Appellant had allegedly attacked his son. This was the last straw for the Respondent, who had then changed the locks. But Mrs Forbes accepted that the Sheriff had not been able to come to a view on which version of the facts was to be preferred.

[10] Nor could it be said that the effect of the Sheriff's decision was to exclude the Appellant from the matrimonial home. His son could let him into the house, if he wished. In any event, if I was minded to recall the Sheriff's interlocutor, the issue whether an interim order in terms of crave 2 should be granted would require a reconsideration of where the balance of convenience lay; it would certainly not be convenient for the Respondent and the son to leave the matrimonial home. In the whole circumstances the appeal should be refused.

Decision

[11] The first matter I require to consider is whether summary decree should be pronounced in terms of the new first crave. The relative motion was not opposed by the Respondent and there is clearly no controversy about this. I shall therefore grant the declarator sought.

[12] Turning then to the substance of the appeal, I observe at the outset that regulatory orders under section 3 of the 1981 Act appear to have been little used, compared to the other remedies set out in the statute. I note that the Sheriff was not referred to any case law in which the section had been used and neither was I. This means that in construing section 3, the usual canons of statutory interpretation have to be used, without the benefit of any guidance that might be gleaned from previous judicial decisions.

[13] However, I can quickly dispose of the argument about the applicability or otherwise of the decision in Berry v Berry. Like the Sheriff, I have no doubt that an interim order under section 3(4) of the 1981 Act is quite unlike an order under section 19 relating to an action of division and sale. The respective criteria for the grant of the two orders are expressed in wholly different terms; as the Sheriff says at para. 3.1 of his Note, in the case of orders under section 19 the court is directed specifically to have regard to the matters set out in paras. (a) to (e) of section 3(3), which is not so in the case of interim orders under section 3(4). Berry v Berry has no relevance to the situation in the present case.

[14] The remaining issue is whether the Sheriff misused his discretion in refusing the interim orders sought under section 3(4). It is important to remember that the Sheriff considered not just the Appellant's averments and the submissions by both sides, but also a number of affidavits from various witnesses and letters by the respective doctors for each party. In his Note he explains what he made of all this material, identifying only a small amount of common ground. This is set out in para.1.4 of his Note where he records a history of marital disharmony between the parties culminating in their separation when the Appellant had to go into hospital. The Sheriff records that the Respondent visited the Appellant in hospital and advised him then that he was no longer welcome in the matrimonial home; she changed the locks before his return. The Sheriff then explains his conclusion in respect of the facts alleged, which was that (apart from that common ground) he found it impossible to form a view as to which version of events was to be preferred but that on the view he took, he did not require to prefer either version. He was entitled to come to that view, for the matter turns on whether the two interim orders sought were "necessary" or "expedient" in relation to the residence of either spouse in the home to which the application related.

[15] Like the Sheriff, I do not propose to look at section 3(4) from any technical standpoint and neither party before me suggested that I should. I am clear that the Sheriff asked himself the correct question on the correct basis: whether the test in section 3(4) was met on its own terms. I agree with him that an interim order under section 3(4) is not an interim version of an order under section 3(3); if it was, there would be no need for any of the subparagraphs of section 3(4), which clearly point to a different test. Further, the Sheriff did not make an order which contravened section 3(5); he did not exclude the non-applicant spouse from the matrimonial home.

[16] It is to his analysis at para. 4.2 of his Note that attention requires to be given; and I cannot find in that analysis anything which amounts to a misuse of discretion. There was no error of law, no failure to take into account a material fact and nothing to suggest that immaterial facts were taken into account. The Sheriff has explained why he did not think an interim order was either "necessary or expedient" and has not misunderstood the meaning of these terms. Nor do I think that the Sheriff's decision can be described as "plainly wrong" or "wholly unwarranted" as these terms have been used in the copious authorities on discretionary judgments, such as Britton v Central Regional Council 1986 SLT 207. Whether I would have come to the same decision as the Sheriff is neither here nor there.

[17] I reject the contention that by refusing to enforce and/or protect his occupancy rights, the Sheriff has (in effect) granted an interim exclusion order against the Appellant. If that were so, it is hard to see how orders for enforcement or protection could ever be refused (either at the interim or final stage), at least where the other spouse was residing in the matrimonial home.

[18] Finally and on the question of whether either interim order would be "necessary or expedient", the rights of a non-entitled spouse to the occupation of the matrimonial home and to the protection of his occupancy rights cannot be seen in some sort of vacuum; as the Sheriff says, at the interim stage orders have to be seen as fit and proper as a means of achieving an end in particular circumstances. I could well understand why regulatory orders might be necessary or expedient where occupancy rights have been threatened by a third party (such as a squatter) in a situation where both spouses have been living together in harmonious circumstances, but in the present case it is implicit in the Sheriff's judgment that to grant the orders sought would not be conducive to peaceful relations between the parties. Further, the term "expedient" cannot just mean "expedient from the standpoint of the Appellant"; that is not what section 3(4) says. Section 3 of the 1981 Act makes it clear that regulatory orders competent thereunder are a matter of discretion and that occupancy rights are not unqualified. Here and at the very least, the circumstances of the case leave room for the view that the interim orders sought are neither necessary nor expedient. Whether final orders ought to be pronounced must await proof and the application of a different test.

Disposal

[19] For these reasons I shall grant the declarator sought in crave 1, but otherwise refuse the appeal and adhere to the interlocutor complained of. The case will be remitted to the Sheriff to proceed as accords.

Expenses

[20] I was told that both parties were in receipt of legal aid. In these circumstances, I will make no finding of expenses due to or by either party in respect of the appeal.