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Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> JULIE ANNE PHILLIPS OR ZELENT (AP) v. ALAN SAVAGE [2012] ScotSC 38 (14 March 2012)
URL: http://www.bailii.org/scot/cases/ScotSC/2012/38.html
Cite as: [2012] ScotSC 38
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Sheriffdom of Grampian, Highland and Islands at Inverness
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Case No: F206/09 |
JUDGMENT by SHERIFF MARGARET M. NEILSON in causa JULIE ANNE PHILLIPS or ZELENT (A.P.) formerly residing at c/o 135 Wakefield Road, Garforth, Leeds, LS25 1AT and now c/o 101 Wild Oak Drive, Newport, North Carolina, U.S.A. 28570
PURSUER against ALAN SAVAGE formerly residing at Beech Tree, 13 Drummond Road, Inverness and now at Westwood, Stratherrick Road, Inverness, IV2 4JY
DEFENDER
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Act: Hajducki, Q.C., Kippen Campbell, Solicitors, Perth
Alt: Mitchell, Q.C., Stronachs, Solicitors, Aberdeen
INVERNESS, 14th March 2012
The Sheriff, having resumed consideration of the cause, finds the following facts admitted or proved:-
(1) The parties first met on a flight in mid June 2006. At that time the pursuer worked with the Royal Bank of Scotland ("RBS"). The defender was and still is the chairman and owner of Orion Engineering Services ("Orion").
(2) The pursuer left her job with RBS on 31st August 2006, having worked a one month period of notice, and started cohabiting with the defender in Inverness on 1st September 2006. That first period of cohabitation ended on 24th August 2007.
(3) In around mid October 2007 the pursuer contacted the defender's P.A. She wanted Orion to confirm that they would pay for the servicing of a BMW car owned by Orion which the defender had allowed the pursuer to retain following the end of the period of cohabitation in August 2007.
(4) Shortly after this initial contact through the defender's P.A. parties got in touch again and started seeing each other on an informal basis from late October 2007.
(5) The pursuer was offered a job by F.S.I. Solutions in around mid October 2007 but decided not to accept the offer. The defender was not involved in that decision.
(6) From late October 2007 until early February 2008 the pursuer ordinarily lived in her house in Houghton Regis, Bedfordshire, but would travel to meet the defender in Inverness or elsewhere most weeks. The parties also travelled abroad together on one of the defender's business trips. The pursuer was not living permanently in Inverness during this period but parties were seeing each other again, having sexual relations and were considering whether to rekindle their relationship on a more permanent basis.
(7) From around early February 2008 parties started a new period of cohabitation. They cohabited until 11th October 2008 when they separated permanently.
(8) Following the ending of the relationship the pursuer left Inverness and went to Perth to stay with a friend briefly, then to Leeds to stay with her daughter and then to New Zealand on 21st October 2008 using tickets provided by and paid for by the defender. These had previously been booked for the pursuer to accompany the defender on a business trip. The pursuer's return ticket was flexible and cost in the region of £2800. She stayed with her father in New Zealand. She applied for jobs there until 1st December 2008.
(9) In early January 2009 the pursuer returned to the U.K. on a temporary basis as she had, during December 2008, made plans to move to Washington State in the United States to be with Mr Michael McSwain. She first met Mr McSwain in the 1990s through work and had stayed in touch with him by email ever since.
(10) On 24th January 2009 the pursuer travelled to the United States to meet up with Mr McSwain.
(11) From January 2009 the pursuer was in a relationship with Mr McSwain and was living with him. She returned to the U.K. on 24th April 2009 then returned permanently to the United States on 29th May 2009. She married Mr McSwain on 17th October 2009 and remains married to him.
(12) At some stage before their marriage the pursuer and Mr McSwain moved from Washington State to North Carolina and set up home together there.
(13) While in the United States the pursuer worked as a sailing instructor at Camp Lejeune, a U.S. Marine Corps base, using her husband's boat between March 2010 and August 2011. Her husband is a former U.S. Marine who receives a Marine Corps pension and is also employed as a police officer.
(14) The pursuer is the joint-owner of the house at 101 Wild Oak Drive, Newport, North Carolina, U.S.A. 28570 with Mr McSwain. There is a bond (which is the equivalent of a U.K. mortgage) over it in their joint names.
(15) From 1st September 2006 to 6th November 2007 the pursuer was paid a package, through Orion, equal to her package with RBS.
(16) From 6th November 2007 to October 2008 the pursuer received £66,000, tax free, directly from the defender.
(17) During the relationship the pursuer received jewellery from the defender valued (conservatively) at around £25,000 which she has retained.
(18) The pursuer removed a van load of household goods from Drummond Road, Inverness when she left there in October 2008 and has retained them. She has also retained clothes bought by her during the period of cohabitation. She retained the use of a car provided and paid for by the defender following the separation until she demanded that he arrange for it to be uplifted when she moved to the United States.
Finds in Fact and Law
The pursuer having sustained no economic disadvantage in the interests of the defender and the defender having derived no economic advantage from financial or non financial contributions of the pursuer, the pursuer is not entitled to payment of a capital sum in terms of Section 28(2)(a) of the Family Law (Scotland) Act 2006
THEREFORE Repels the pursuer's first, second and third pleas in law, Sustains the defender's third plea in law, Repels the defender's first, second and fourth pleas in law as unnecessary, Grants Decree of Absolvitor and fixes a hearing on expenses.
Sheriff
NOTE
Introduction
[1] This is an action in which the pursuer seeks payment of a capital sum from the defender in terms of section 28(2)(a) of the Family Law (Scotland) Act 2006. After sundry procedure, including two debates and a number of amendments made by the pursuer, a proof before answer was fixed and evidence was led. The evidence, together with the submissions, was heard over seven days on 14th November, 5th, 6th, 7th and 8th December 2011 and 5th and 6th January 2012.
[2] To accommodate the pursuer, as one of her witnesses was not available until 6th January 2012, the court agreed to the defender's witnesses' evidence being heard before the pursuer's case was closed and the evidence led on her behalf completed.
[3] On behalf of the pursuer, evidence was led from the pursuer herself together with Mr Brian Keith, Employment Consultant, and Dr Ian Anderson, Chartered Psychologist. In addition, affidavits were lodged containing the evidence of Carrie Kirkham, the pursuer's daughter, and Robert Phillips, the pursuer's father.
[4] On behalf of the defender, evidence was led from the defender himself together with Dawn Munro, the defender's Executive Personal Assistant, Campbell Thomson, Facilities Manager at Orion and Maria Budayova, the defender's cleaner at the time in question.
[5] A joint minute was lodged, (No. 34 of process) agreeing that the reports of Dr John Pollock, Consulting Actuary, dated 1st February 2011 and 14th December 2011 (5/1/4 and 5/16), set out the evidence that the said Dr John Pollock would give on the basis of the hypotheses of fact presented to him for his opinion and that he should be certified as an expert witness. 16 Inventories of productions were lodged by the pursuer and 1 by the defender.
SUBMISSIONS
Pursuer's Submissions
[6] The pursuer's senior counsel submitted a typewritten valuation of her claim together with draft findings in fact. There were three distinct heads of economic disadvantage claimed by the pursuer, namely:
loss of income/earning capacity;
loss of pension rights; and
economic disadvantage relating to the house in Drummond Road.
[7] John Pollock's actuarial reports (5/1/4 and 5/16) set out the basis of the calculations. A statement (5/1/3) set out the pursuer's benefits she used to receive from RBS. The period from 31st August 2006 to 11th October 2008 is no longer being taken into account as the pursuer conceded on day three of her evidence that she was no longer seeking compensation for loss of earnings for that period. She also conceded that she was content for any ongoing claim for lost earnings/earning capacity to be capped as at 31st December 2011. She therefore claimed the sum of £116,800 for loss of earning capacity, income and benefits for the period 11th October 2008 until 31st December 2011.
[8] In relation to loss of pension rights, the pursuer's position was that she has suffered a loss from 31st August 2006, since when no pension contributions were made. She was prepared to make a concession to cap the ongoing loss at 31st December 2011 and therefore claims the sum of £55,000 under this head of loss.
[9] In relation to the Drummond Road property, the pursuer made certain financial contributions as outlined in condescendence 1 of £21,872.17, £843.68, £271 and £288.40 as well as non financial contributions, which benefited the defender's house which he retained. The house had been bought by the defender for £290,000. As shown in the valuation it was worth, at the date of separation, £450,000. The defender had spent £84,431.14 on renovation and improvement works which, when deducted from the value as at the date of separation showed an increase in value of the house during the cohabitation period of £75,568.86. The pursuer contributed £9,916.25 to the household goods which the defender had retained. It was argued that the pursuer is entitled to one half of the increase in value, together with a refund of her contributions of £9,916.25. Accordingly she was entitled to £47,700.25.
[10] Overall, the total claim has been reduced from the sum sued for of £500,000 to a sum of £219,500.25. Senior counsel was keen to point out that while this was less than the sum sued for, had the pursuer made no concessions it would have exceeded the sum sued for.
[11] Senior counsel accepted that, in terms of section 28(8), an application has to have been made not later than one year after the date on which parties ceased to cohabit. The gap between the two periods of cohabitation did not matter. There was no time limit specified where they might live apart. It was a continuing loss and any period where parties were not cohabiting between the two periods of cohabitation should, taking a broad approach, simply be ignored.
[12] Senior counsel conceded that he had a difficulty particularly in respect of the pursuer's evidence in relation to her marriage. He was anxious, however, that it did not colour the whole of the rest of her evidence. His position, in submission, was that the pursuer seemed to be "in denial" that she was married. He could not explain it and would not try to, but his position was that she was not trying to cover up the relationship and not deliberately trying to conceal anything. It was not relevant to her case whether she was married or not and it did not mean that she was a fantasist. The court should look at the evidence as a whole and decide whether it was credible or not and also whether what the defender was saying was credible or not. He conceded that the pursuer had not even told her own solicitors she was married.
[13] In relation to the suggestion that the pursuer should leave Bedfordshire and move to Inverness on the basis that the defender's job was more important than the pursuer's, the court should consider whose evidence was most likely on that point. The cohabitation came about as a result of the decision the parties made for the pursuer to move to Inverness and give up her employment. The pursuer thought that the employment with Orion was a proper offer. The defender had shown contempt for the pursuer by suggesting that she sat by the pool and went shopping when she accompanied him on business trips abroad. An intelligent woman would simply not do that. Her expenses had been charged to Orion. She attended one meeting in New Zealand. On that basis she must have been working for Orion and the defender must be lying about that. It was accepted that she got the benefit of travel to New Zealand and Australia to see her family. The defender had indeed told the pursuer that she could only wear clothes once. The fact that the parties had gone to Ladies' Day at Ascot supported this.
[14] The defender had benefited by the work the pursuer did in relation to Drummond Road. Her name was on a planning application. The defender had overstated matters by saying that she did not do anything when clearly she did the housework. She had kept her house on in England as somewhere to go to if things did not work out. When they met up again in October 2007, they discussed the offer of employment she had been given by the defender. This was backed up by the affidavit of her father. The defender's evidence on this should be considered critically. The parties agreed that he would pay her £4,000 per month.
[15] It was accepted that in terms of section 28(2), the use of the word "may" means that there is no mandatory payment due and that the question is one for the court's discretion bearing in mind all the circumstances of the case. In terms of subsections 3(a) and (b) and subsections 5 and 6, there were certain matters the court had to have regard to. Firstly, the defender gained economic advantage by the pursuer working for Orion. She attended business trips and networking events and for part of the time was paid by Orion and partly not. The defender did not have to make pension contributions for her and he benefited financially in that respect. She made contributions to the Drummond Road house. She was running the home and making financial contributions to it. There were, therefore, economic contributions. The offset should be nil. Where has the defender suffered loss? He asked the pursuer not to work, gave her housekeeping and an income, and directed her how it was to be spent.
[16] In terms of subsections 3(b) and 6, the pursuer suffered economic disadvantage in the interests of the defender. It was at his insistence she gave up her job. She lost income. She now concedes that the income she got from him should be offset. The pursuer's position was that by giving up the job in the interests of the defender she lost income and benefits and she lost benefit in relation to the house in Drummond Road. In terms of offsets, she did not have to pay rent but she already had a house which she could not use. She did not gain any advantage by gaining a salary from Orion or a housekeeping allowance from the defender. She has also conceded that she no longer claims anything in respect of loss of earning capacity during the cohabitation period. She did not have a pension but now accepts she no longer has any valid claim for the rest of the income. Had the pursuer argued that the commitment should be open-ended, there would be some validity in the defender's complaints. The pursuer's first two pleas in law should be sustained and decree should be granted in terms of craves 1 and 2.
Defender's Submissions
[17] The court should sustain the defender's third plea in law, repel the pursuer's three pleas in law and grant decree of absolvitor. The defender's further pleas do not need dealt with. It was noted that the court had asked and pressed for an explanation as to why 31st December 2011 had been taken as a cut off date by the pursuer but had not received any adequate explanation. In the defender's submission, a more natural end date would be 1st December 2008 which is the day that the pursuer gave up looking for employment. As a fallback position, the date of 24th January 2009 should be used which was the day that she acted on a prior plan to make a new life for herself in the United States in a manner inconsistent with seeking employment of a Royal Bank of Scotland type. The parties' and witnesses' credibility and reliability required to be looked at and then an analysis made. It can be shown without difficulty that the pursuer came out of the cohabitation in substantial profit.
[18] In terms of credibility and reliability of the witnesses, Dawn Munro, Campbell Thomson and Maria Budayova were all credible witnesses. Campbell Thomson was vague but Dawn Munro and Maria Budayova were quite clear and there would be no reason to doubt them. Carrie Kirkham and Robert Phillips' affidavits are in a different category. Most of what is contained in them is of no particular relevance. Some statements are quite emotional. Carrie Kirkham's complaint that her mother did not get a BMW at the end of the relationship but only a Mini was brass necked. Both affidavits should be treated with caution as there had been no opportunity to cross examine. There was no criticism of the pursuer's representatives for not calling these witnesses. They are not important witnesses. The content of the affidavits was so lacking in relevance that there would be no need to bring them. However, in the circumstances their evidence cannot be taken to contradict the defender's evidence.
[19] There was no basis to find the defender anything but credible and reliable. There had been detailed criticisms and attacks made on him in the witness box. He was being criticised for travel and other expenses being made by Orion in the first instance. His position was that to a large extent payments were made by Orion and then a reconciliation made with his directors' loan account as to what was to be paid by Orion and what to be paid by him. In one aspect he and Orion did get it wrong and the HMRC have already dealt with this. There was nothing in this to permit the pursuer to allege that the defender was attempting to defraud the tax authorities and there was nothing to say that the manner of payment was in any way inconsistent with his actions. It was also said that he treated her with contempt, saying that she was sitting at the pool and went shopping while he was on business trips abroad. It is not contemptuous or even critical as lots of people do that when abroad. The pursuer says that the defender untruthfully denies that he told the pursuer to buy clothes and wear them only once. Looking at the amounts paid for clothes and hairdressing it is clear that the pursuer was living to a high standard, whatever the amounts involved, but her own figures could not possibly be correct if she were wearing unique clothes at all times and only wearing them once. They would have to be much higher. In regards to the so called cohabitation period before February 2008, it is evident that the defender was telling the truth. The relationship resumed in October 2007 but on a different basis until into the new year. This is borne out by the pursuer's own bank statements where it is clear that until, and into, the new year her supermarket shopping was all being done in Milton Keynes. Maria Budayova could not lie if she wanted to given the language difficulties. The defender was credible and reliable in all matters. The pursuer has, however, throughout the action attempted to deceive. Reference was made to the case of Robertson and Gough v. HMA 2007 HCJAC 63 and the definition of prevarication and perjury. The pursuer has clearly misled her experts, in relation to Brian Keith, the employment expert at paragraphs 1.5, 2.6, 2.18 to 2.20 and 3.8 of his report (5/10/1). In relation to Dr Anderson, it is clear she consciously concealed the nature of her relationship by telling him about a "fiancée visa". It is not clear why she did it but she gave him a false account of her immigration history.
[20] It is now clear she has not been resident in Leeds since before the action was raised and that she left the U.K. permanently towards the end of May 2009. Since then she has had a permanent home in the United States. The action was raised in 2009 and she stated that she was then resident in Leeds. She made no mention of being resident in the United States until Dr Anderson and Mr Keith's reports were lodged on 31st May 2011. That was the first intimation to the defender and his representatives that she was not living with her daughter in Leeds. She received legal aid in late 2010. From the time she got legal aid it was pointless to try and obtain caution or ordain her to sist a mandatory. By her deception the defender was deprived of that right. The pursuer had tried to blame her solicitors regarding non disclosure of her true residence. It was not clear whether the fault lay with the pursuer or her agents but the responsibility had to lie primarily with her. It was unclear whether her solicitors knew she was in the United States. It was important to note that she ignored calls on record to specify where she was living. The record of 31st March 2011 contained specific calls. The reports intimated on 31st May 2011 stated she was living in the United States with a partner. There was no candour at all. There was a late flurry of amendments and the record of 14th October 2011, following her amendment of 20th September 2011, put an American address in with no further details. In her adjustments to that minute of amendment, the pursuer has made false averments. It is specifically stated that she and her now husband "met again around February/March 2009" and commenced living "in family" in March 2010. In fact, by March 2010 they had been married for six months. The marriage certificate shows that they were living together before that. The second note of adjustments on 25th October 2011 stated that she stayed with "family friends and parents" in the United States while looking for work. It was stated she was granted a further visa after moving in 2010, such visa being valid until 2012 and having with it a green card permit. The final version of the pleadings changed matters again. The entire history before the proof showed a refusal to come up with the truth until she has no option to do otherwise. It was Dr Anderson's report being intimated and lodged which gave her game away. She was called upon to explain this history and then lied more. She lied about her first meeting with Mr McSwain. Her evidence at first was that when she did so this did not take place when she first went to the United States. In cross-examination she said that the relationship in fact began after his father's funeral. In fact, his father's obituary mentions her as Mr McSwain's partner at the funeral in March 2009. When this was put to her she then admitted it. Eventually she admitted that she went in January 2009 to live with him. There has been "a campaign" of perjury and prevarication throughout. When she was asked when she first lived with Mr McSwain she initially said it was from March 2010. Eventually she had to concede it was much earlier.
[21] In relation to her marriage, this can be nothing other than straightforward perjury. On day one of the proof, in November 2011, when she was completely unaware that the defender had any information about her marriage, she claimed not to be married. At the end of that day the pursuer's solicitors were told that the defender's agents had proof of her marriage. Her solicitors must have told her so that by day two of the proof, in December, she produced a marriage certificate. She admitted the marriage only when she knew there was evidence of it. Her explanation that her marriage was not registered in the U.K. and therefore was not valid and that she had been told this by the British Embassy is another lie. The British Embassy is not in the business of telling people to commit perjury. It was inconceivable that they would have told her she did not have a valid marriage. Asked why she did not come clean before, she said she had never been asked. It is inconceivable that the question was not put to her given that there were specific calls on record.
[22] The pursuer specifically said in evidence in chief that she had no home and no means of transport. In cross-examination, she admitted that she was in fact the co-owner of a nice property. It was a pointless lie. It was obvious she had a home and somewhere to live. Her explanation that she did not regard it as her home as Mr McSwain had paid for it is odd given that the whole thrust of her claim against the defender was that the house in his name is one half hers.
[23] She claimed that she was not in employment; could not get employment. It is clear that the court has not been told the whole truth as to what she was doing. She had employment in the United States and she said so on Facebook. This was with the U.S. Marine Corps. It is inconceivable that she would say "employed by U.S. Marine Corps" if it was in fact voluntary work as she now claims. She said in evidence that she had a contract of employment. She later came out with another lie that she needed a contract of employment in the Unites States to get an insurance waiver. In spite of her admission she has never disclosed the true situation. She has never disclosed her financial position. No income tax returns have been lodged. She has produced complete details of her financial situation during the relationship with the defender and nothing after it ended.
[24] She said that the reason she could not go through a marriage ceremony in the U.K. was that her husband could not get away from his job as he was a high powered policeman in North Carolina and Washington State. At first she said that she had no idea what his income was and eventually said that he got a salary and a U.S. Marine Corps pension and then provided specific figures. It is not known if it is true or if the figures she gave bear any relation to the truth as nothing has been lodged by her. There was complete prevarication.
[25] The pursuer also lied in relation to her job applications. The basis of her claim on record was that she was using her best endeavours to get a job. She has lodged job applications from New Zealand. It is unbelievable that if she was genuinely applying in the United States there would not be any job applications. Oddly, a late inventory was lodged, not of applications, but of replies. She claims that there were e-mail applications but that these had been sent to her daughter and to her solicitors. When she was pressed on this she then said that they were somehow destroyed by a computer virus. The reality is that there is nothing to support that there were any job applications made during this period. She then added that she had periods of no access to the internet and she was going door-to-door. We have a copy of a C.V. and a résumé but no idea if they were ever sent to anyone. Both Brian Keith and Dr Anderson thought things were going wrong at the interview stage. On the numbers she was giving them she appeared to be good at getting the interviews but not the subsequent appointments. When she was asked in detail about this, it became apparent that she was door-stepping a bank and counting that as a job interview. She is, frankly, not that stupid. The truth is that having made a new life for herself in the United States she made no job applications at all until January 2011 when a strange sheaf of responses is produced. She has found a new man who supports her. She likes sailing and he has a yacht. She has been living in the United States, has got over the relationship with the defender admirably well, has a new relationship and a new husband. In the course of concealing this and claiming to be homeless in the United States and Leeds, she was seeking to deceive the court. While these matters all relate to post cohabitation there were a number of points looking at the pursuer's pre break up evidence where she makes obviously ludicrous claims. She claims that there were vast clothes bills and she was only allowed to wear them once at the defender's say so. It was accepted that some items may be a one off, for example a hat to wear at Ladies Day at Ascot. She said she got no value from these clothes, that she spent £500 on a dress and that it was money down the drain. From her own evidence, however, she has kept the dress; shipped it to the United States and kept it with a view, apparently, to give to charity after the case is finished. This is simply not credible. She said that she did not get any household goods but this is also incredible. She spent some money on the house but there is no reason to think that she did not get the goods. Her initial position that she project managed the alterations to the house was shown to be wrong in evidence and all she had done was to supervise the cleaning and pick the carpets.
[26] Both parties were spending money on the relationship, but the defender was spending considerably more than the pursuer. Two people were living together and one had a larger income and that was to be expected. She does not appear to recognise that the defender spent anything at all. She paid the council tax for two months and did not seem to understand that he paid the rest. It is simple self delusion. She thinks that the only money spent is what she spent herself. It is impossible to accept the pursuer as a credible and reliable witness on any matters in dispute between the parties and that is the end of the case.
[27] The defender's fallback position is that the pursuer is in profit in any event. Taking a broad-axe approach during the relationship she claimed she was not in receipt of the Royal Bank of Scotland package. In truth she was on a different package. Even on her admitted figures she ends up "a long way ahead of the game". Firstly there is an admission, on record, that until 8th November 2007 she got a package from Orion of the same value as the package from the Royal Bank of Scotland. So until 8th November 2007 she is as well off as she was before. Part of that period was not even a period of cohabitation. From 8th November 2007 onwards the pursuer accepted that she received £66,000 in cash, tax free. She was taken through it in evidence. There were monthly payments of £5,000 and £4,000 per month. There was a lump sum from Orion. There were some further payments of £8,000 for medical bills and bits and pieces. She accepted, in evidence, that she had received £66,000 and this ran into November 2008. Not only did the defender continue to pay her throughout this period but, compared to the package that she would have had, she was £30,000 better off receiving £66,000 in cash. This is backed up by Brian Keith's report at paragraph 3.14. Having regard to the jewellery, she was given it by the defender. There was a replacement valuation of £43,200 although it was accepted by the defender that she could not expect to receive that on re-sale. She gave very surprising evidence that she had sold it for gold scrap. The defender, for present purposes, was prepared to accept a valuation of around £25,000. She also had the expenses of the New Zealand trip paid for her which were quantified at £2,800 in production 5/4/8. She was also given a Mini which was an indication of the attitude of the defender who was prepared to give her a car. There was the complaint from her daughter that she should have got a BMW and not Mini. The defender received a letter from her solicitors telling him to pick it up which puzzled him. In fact it is now clear that that was because the pursuer had gone to the United States to live and no longer needed the vehicle. On all of the evidence she got a full Luton van load of stuff to take from Inverness when she left and she got other benefits from the fact that the defender was spending much more than her. She said that the cohabitation resumed in December 2007 but clearly she was not spending anything in Scotland. She said it was because he was spending the money which is yet more financial advantages she has received. By the point she has gone to New Zealand or the United States she has ended up, on a conservative view, £50,000 to £60,000 better off than if she had not been in the relationship. It is difficult to see what disadvantage she has post separation and why it would be in the interests of the other party if there was any disadvantage. The fact that she does not have a job was not to the defender's advantage. In fact she was £50,000 to £60,000 ahead of the game and this covers at least one year of her Royal Bank of Scotland employment, valued at £55,000. However, she was not paying tax on the money received from the defender. Production 5/1/4 deals with pension loss. It was clear that the pension was valued by her expert at £1,342 per year. Each year would accrue £644.50 and, applying the Ogden multiplier to age 60, if she were to lose one year pension contribution this would be a total value, on her own expert's figure, of £8,984. The Royal Bank of Scotland estimate is £8,593, which is roughly in the same ball park. On the hypothesis that her claim for loss of earnings was extended to one year, which was not accepted, and even rounding up the pension figure to £9,000 she would still be well within a credit balance. The cut off date is critical whether it is when she stopped looking for employment, when she started living with Mr McSwain or even when she married Mr McSwain. She married him one year after the split. All of these dates are covered and it is very clear how far she is ahead.
[28] In Mr Mitchell's submissions the questions of law in relation to section 28 therefore rather fall away. There is a difficult question as to how to look at the two periods of cohabitation and the time bar. At one extreme, short gaps can be ignored and at the other extreme, gaps are so long that they can be considered as two separate periods of cohabitation. The defender's analysis has been made on the basis of the pursuer's contention of one period of cohabitation with no effective break. The potential question is how one looks at disadvantage to the benefit of the other party. It is not clear why, post cohabitation, the pursuer's inability to obtain employment could possibly benefit the defender. What we have here is a claim for half a million pounds reduced to two fifths of a million pounds. The pursuer has given entirely dishonest evidence and her evidence can be disregarded. She has ended the relationship substantially better off than when she entered it. She has made a new life for herself in a way inconsistent with her claim. She has gone from being underwritten by cohabitee number one (the defender) to being underwritten by cohabitee number two. The action should be dismissed. A formal motion for certification of the suitability of senior counsel will be made but a full hearing on expenses should take place later.
The Law
[29] Section 28 of the Family Law (Scotland) Act 2006 provides as follows:-
"(1) Subsection (2) applies where cohabitants cease to cohabit otherwise than by reason of the death of one (or both) of them.
(2) On the application of a cohabitant (the "applicant"), the appropriate court may, after having regard to the matters mentioned in subsection (3)...
(a) make an order requiring the other cohabitant (the "defender") to pay a capital sum of an amount specified in the order to the applicant;
...
(3) Those matters are -
(a) whether (and, if so, to what extent) the defender has derived economic advantage from contributions made by the applicant; and
(b) whether (and, if so, to what extent) the applicant has suffered economic disadvantage in the interests of ....
(i) the defender; ...
(4) In considering whether to make an order under subsection (2)(a), the appropriate court shall have regard to the matters mentioned in subsections (5) and (6).
(5) The first matter is the extent to which any economic advantage derived by the defender from contributions made by the applicant is offset by any economic disadvantage suffered by the defender in the interests of
(a) the applicant; ...
(6) The second matter is the extent to which any economic disadvantage suffered by the applicant in the interests of
(a) the defender ...
is offset by any economic advantage the applicant has derived from contributions made by the defender. ...
(9) In this section -
"economic advantage" includes gains in -
(a) capital;
(b) income; and
(c) earning capacity;
and "economic disadvantage" shall be construed accordingly".
[30] I was referred briefly to the case of Gow v. Grant [2011] CSIH 25 which is the leading case on this section. While the Court of Session did not set out strict guidelines as to how the legislation was to be interpreted, the Second Division did make some helpful comments on the construction of section 28 at paragraphs 3 and 4.
"We do, however, make two observations. First, contrary to the view taken by the Lord Ordinary in M v. S 2008 SLT 871 at paras. [207] to [272] and by some sheriffs in the cases that we have cited, we are of the opinion that sections 8 to 10 of the Family Law (Scotland) Act 1985 have no bearing on the construction of section 28. Those sections are concerned with the rights of a spouse on divorce. They establish a scheme for, among other things, the fair distribution of matrimonial property acquired by one or other or both spouses during the subsistence of a marriage. That scheme operates by reference to the principles set out in section 9(1) of the 1985 Act. Section 28, by contrast, is not concerned with the distribution of property. It permits a court to make financial provision for a former cohabitant in certain defined circumstances. That financial provision is in the nature of compensation for an imbalance of economic advantage or disadvantage. Thus the scheme of section 28 is quite different, both in substance and in form, from sections 8 to 10 of the 1985 Act and cases on the latter provisions cannot be regarded as guidance in the construction of section 28.
Secondly, we are of opinion that in applying section 28 a court must have regard to the precise wording used in the section and in determining whether financial provision should be awarded it must ensure that the requirements set out in the section are satisfied on the evidence. Section 28 has been criticised for the lack of guidance that it gives to the court, and it is clear that first instance courts have had considerable difficulty in applying its provisions in particular cases. Indeed in the present case the sheriff (at paragraph [39] of her note) regretted that no clear statement of the approach which parliament intended is immediately discernable from the wording of the provisions. We can see considerable force in these criticisms. Nevertheless, we are of the opinion that the difficulties will be minimised if it is recognised that the objective of the section was limited in scope: it was intended to enable the court to correct any clear and quantifiable economic imbalance that might have resulted from cohabitation. The section was not designed to confer a general power to deal with any wider financial issues that might have arisen between the parties. Consequently, we consider that the section should be applied in accordance with its precise terms which appear to us to reflect its limited objective."
[31] It is immediately clear that the purpose of the legislation is to enable a court to correct any clear and quantifiable economic imbalance that might have resulted from cohabitation. It is not a general power to deal with any wider financial issues that might have arisen between the parties.
The Evidence
[32] Given that each party has put the credibility of the other party and/or their witnesses in issue, I will give an assessment of each witness separately from an assessment of the various chapters of evidence.
[33] I found the pursuer to be lacking in any credibility. After careful and detailed consideration of the evidence I have concluded that she has deliberately tried to mislead the court in a number of ways. The pursuer's demeanour in the witness box was revealing. She was very keen to add her own gloss to events and was not content to restrict herself to answering questions, frequently adding disparaging and unnecessary comments about the defender. For example, in relation to his company's tax affairs she suggested there was something untoward going on. She went into the details of a relationship the defender had at one point with another woman. She tried to show him in a bad light whenever possible. She clearly lied in examination in chief on a number of issues and only admitted the lies when faced in cross-examination with information (openly available on the internet), which contradicted what she had said in chief. When asked why she had lied in her evidence, some of her explanations would have been laughable were the situation not so serious, involving considerable expense to the defender and to the public purse in terms of her legal aid certificate. She was very keen to blame everyone else for the position she was in. For example she blamed her solicitors, to whom she claimed to have sent proof of job applications, a computer virus for losing the same e-mails, and then claimed that limited internet access had prevented her applying for jobs. It is scarcely credible that a person, particularly someone who considers herself an I.T. specialist, could not find internet access, even in an internet café, library or other public place to enable her to apply for jobs from 2009 onwards.
[34] In relation to her work situation in the United States, the pursuer stated clearly on Facebook that she was working, giving sailing lessons at Camp Lejeune (6/1/41). She updated her Facebook page at one point to say she was no longer working there (6/1/41) before removing the pages altogether. She then told the court it was not paid work but only voluntary work. She said at first she had a contract of employment, then she said she did not. Then she said she did but it was just so she could get an insurance waiver. Articles in the local (North Carolina) press (6/1/41) also suggested she was working and gave details of what her sailing lessons actually cost. No documentary vouching was produced by her. Either she was lying to the court about her work or she had lied on her Facebook page.
[35] She made constant reference to petty and trivial incidents apparently in order to either exaggerate her contribution to the parties' life together or to paint the defender in a bad light. For example, to support her claim that she worked for Orion organising the defender's work, she claimed that as part of these duties when the parties were driving down the A9, she would dial a number on the defender's mobile handset and switch it to hands-free so that he could do his business while driving. While I have no doubt that this was of assistance to the defender, it hardly amounts to anything of substance and certainly not in my view to some form of employment.
[36] The pursuer claimed that the defender had forced her to go on business trips with him which were of no interest or enjoyment to her. At one point she said that somewhere in Australia she drove a golf buggy while the defender was playing golf. She complained that she had got badly sunburnt. Quite why she thought her sunburn was the defender's fault is unclear but this sort of petty critical comment is typical of the attitude she displayed throughout her evidence. She came over at times as bitter and vengeful. She seemed to think that she should be entitled to money from the defender just because he is wealthy.
[37] As I will refer to later there were significant inaccuracies in the pursuer's pleadings which cannot be explained simply by lack of reliability due to the passage of time or other innocent explanation. I agree with the submissions made by the defender's counsel in respect of the pursuer's credibility. I consider these to be well founded on the evidence I have heard.
[38] Brian Keith was the pursuer's employment expert. He is an acknowledged expert in his field and this was not disputed by the defender. His report is, however, only as good as the information given to him by the pursuer. A significant amount of the information given to him was incorrect, (for example that contained in paragraphs 1.5, 2.6, 2.18 to 2.20 and 3.8). Accordingly his conclusions have to be viewed in that light. The information the pursuer provided was so wrong in a number of fundamental aspects that I cannot attach significant weight to Mr Keith's conclusions while respecting, of course, the validity of his thought processes and expertise in reaching them.
[39] An affidavit was produced from Carrie Kirkham, the pursuer's daughter. She was not called as a witness as she was pregnant and due to give birth around the time of the proof. Most of what is contained in her affidavit is of little consequence in relation to the action and largely consists of what the pursuer has told her. She clearly feels an understandable sense of loyalty to the pursuer and provides her views on how badly she feels the pursuer has been treated. Obviously the evidence has not been tested in cross-examination and therefore only limited weight can be attached to it. I certainly do not prefer her evidence on relevant matters to that of the defender, which has been fully tested in cross-examination.
[40] An affidavit was also lodged containing the evidence of Robert Phillips, the pursuer's father. He lives in New Zealand and is elderly. Again, limited weight can be attached to this given that it has not been tested in the court. Parties' senior counsel had agreed the content of the affidavit except for one small section (noted in square brackets at page 5, paragraph 6 lines 9 - 11) which was in dispute. The pursuer's senior counsel argued that this should be included and accepted as evidence and the defender's senior counsel thought not. The pursuer's senior counsel appeared to think that Mr Phillips' evidence in this respect helped to date a note written by the defender and produced by the pursuer. It seemed to me that that did not necessarily follow. There was no dispute that the defender had spoken direct to Mr Phillips. For what it is worth, my view is that this sentence should be excluded. If the pursuer thought that this evidence was of real significance she could have called Mr Phillips as a witness (I was told that it had been agreed between parties that a video link would have been used by parties if his evidence required to be given orally) so that it could be subject to cross-examination. However the pursuer chose not to do so. Even if I am wrong in excluding this sentence it is not clear to me that the sentence is itself crucial or indeed of any real significance. What the defender may or may not have told the father of an adult partner about looking after her in the future is really neither here nor there.
[41] Dr Ian Anderson is a Chartered Psychologist. Again, he is an acknowledged expert in his field. Again his report is only as good as the information it is based upon. He did not, for example, know that the pursuer was married. The pursuer tried to explain this away as a minor detail but it seems to me that it cannot be an innocent omission. It was a version of events designed to deceive. She invented a whole story about being in the United States on a fiancée visa (which apparently means one has to marry the fiancé within a 2 year period) when she met with Dr Anderson in Dallas-Fort Worth, Texas on 17th May 2011. In fact, by the time she saw him she had been married for 19 months. Dr Anderson, having a detailed knowledge of immigration procedures in the United States, on a personal level if not a professional one, was puzzled by her explanation. The reason for his puzzlement became apparent at the proof as this explanation was clearly a fabrication. He was asked in re-examination by the pursuer's own senior counsel, (following a comment from the defender's senior counsel in cross-examination), whether he thought that the pursuer was a fantasist. His position was that he would have expected to see evidence of grandiose ideas if she were a fantasist and he had not seen that. In my view this evidence supports the view that the pursuer had deliberately misled her expert witness and the court.
[42] I found the defender to be a generally credible and reliable witness. He was straightforward in his responses and gave the impression of someone who has worked hard and has been successful in business. He is financially well off. He carries out a lot of charity work. Throughout the case he restricted himself to answering the questions put to him and conducted himself with dignity throughout. He generally did not make adverse comments about the pursuer. His evidence was consistent and unshaken in cross examination. If he did not know the answer to a question he immediately said so. He was a man of few words and gave the impression of being down to earth with no airs and graces (this was an impression that the pursuer's daughter appeared to agree with in her affidavit). He kept calm throughout, with a couple of exceptions where he showed genuine anger or irritation. For example it was suggested to him in cross-examination, that he only or primarily attended charitable functions to network and assist his business. He replied that he did not attend charity events to "schmooze". Secondly, it was suggested that he, apparently "like most Scottish men", would not be capable of doing housework. Quite why the defender, who is not in any event Scottish, should have to answer for Scottish men in general is unclear but in any event the defender made it clear that having cared for a terminally ill person for some years, he was well able to do housework. These spontaneous flashes of anger throughout an otherwise calm and very measured period in the witness box if anything enhanced his credibility. They certainly did not detract from it.
[43] I found Dawn Munro, the defender's Executive Personal Assistant, to be an articulate witness. She appeared to take pride in her job and gave the impression of being very efficient. She gave clear and straightforward answers and if she did not know an answer, would simply say so. She kept clear diary records. I had no reason to disbelieve her and found her credible and reliable. Where her evidence differed from that of the pursuer, I preferred Ms Munro's evidence. It was clear that she controlled the defender's diary and organised his travel arrangements, appointments and so on. She certainly liaised with the pursuer, where necessary, and told her about anything she had arranged which might affect her. It was abundantly clear that she, not the pursuer, carried out these duties for the defender.
[44] Campbell Thomson, Orion's Facilities Manager, was, like his employer, a man of few words. He gave the impression he would rather be at work or possibly anywhere else, than in court. He gave clear evidence on matters he knew about or recollected but was understandably vague on certain issues he could not remember. For example, in cross-examination he was asked about accompanying the pursuer to an unspecified builders' yard, in an unspecified industrial estate in Inverness, on an unspecified date so that the pursuer could pick taps for the bathroom in Drummond Road. Mr Thomson said he did not remember the incident. He went on to explain that he spent a lot of his working life in just such places. He fairly conceded that such an event could well have happened but it was just not something he remembered. The fact that he was somewhat vague about this did not affect his overall credibility or reliability.
[45] Maria Budayova is Slovakian. Her English was adequate for the evidence she was giving, however it was clear that she had to make a significant effort to understand the questions and respond to them. I was content that she did understand the questions, however, as there were one or two occasions when she did not initially understand and she made that clear to the court. If she was asked about something she was not involved in she would quickly say so. I came to the conclusion that it would be very difficult for her to lie, even if, for what ever reason, she wanted to. I concluded that she was a credible and reliable witness.
[46] I now turn to deal with my assessment of the various chapters of evidence. For ease of reference I have broken these down into the following categories.
Beauty Treatments, Hairdressing, Clothes
[47] The pursuer claims that she should be entitled to reimbursement of the costs she paid for beauty treatments, hairdressing and clothes which she claims the defender insisted she undertake or purchase. She suggested that the defender insisted she buy "unique" clothes and should only wear them once. I do not accept that the defender forced her to do any such thing. There is no credible evidence of any coercion or abuse. The defender gave the impression, while being down to earth, of someone who could enjoy the good life (as evidenced, for example, by the spending on top class hotels and restaurants). He did not strike me as someone who would waste money. He said that it was ridiculous that anyone would tell someone to wear clothes only once although he did accept, quite properly, that for certain occasions clothes of a certain standard would be required. He said that anyone would know that. For the reasons already outlined, I prefer the defender's evidence to that of the pursuer. My views on this matter are supported by the pursuer's daughter who said in her affidavit that that the defender struck her as being down to earth with no airs and graces. In any event, if the pursuer were genuinely buying unique clothes and wearing them only once, her clothing costs would have been significantly higher than those shown in her bank and credit card statements. She also suggested that she should be reimbursed for every hairdressing appointment she ever went to during the periods of cohabitation. This suggests to my mind that she would never have had her hair done had she not met the defender. I simply do not accept this at all. It beggars belief that someone who apparently prides herself on being intelligent and wanting to retain her independence would agree to go for beauty treatments and hairdressing appointments if she did not want to. It seems to me that she spent what she wanted on clothes, hairdressing and beauty treatments (as she was not working she had the time to do so) and was funded to do so by the defender. This was her choice.
The Pursuer's House in Houghton Regis and the Defender's House in Drummond Road
[48] The pursuer chose to sell her house in Houghton Regis and the completion date as shown in the completion statement lodged by her ((5/7/1) was 12th June 2008. Again this was her choice. In her evidence the pursuer said that during the first period of cohabitation she had kept this house in case the relationship did not work out. It seems odd to me that she should sell it during the second part of the relationship when there had already been significant problems and a prior separation. She initially said in her evidence that the defender wanted her to sell this house because he wanted her to use the money to buy a flat in Manchester for him to use. At another point in her evidence she said that she decided to sell it as she felt secure because the defender had promised to marry her. This was a claim which he denied. I do not consider it particularly relevant whether or not parties ever discussed the possibility of marriage but it seems to me inherently unlikely that the defender would have asked her to sell the house so that they could buy a flat in Manchester when, financially, he was well able to buy a flat in Manchester himself if he so wished. What is clear is that the pursuer for whatever reason chose to sell her house.
[49] I also consider that the accounting used by the pursuer in relation to this house was flawed. She seemed unable or unwilling to understand when the figures were put clearly and methodically to her in cross-examination, that she had not made any loss when selling her house, even if the defender had been, for some reason, responsible for her having done so. After the pursuer was taken through the arithmetic at length, it was eventually quite clear, even to her, that she was not disadvantaged at all. I cannot accept she was in any way economically disadvantaged in this respect and her own counsel ultimately backtracked from this claim in his closing submissions.
[50] The pursuer now claims economic disadvantage on the basis that the value of the defender's property at Drummond Road has increased. She claims that she is entitled to recompense for the increase in value in the property at Drummond Road. This is not a section 9(1) claim. The defender paid for the property. He paid for all the alterations to the property. The alterations were project managed by Mr Thomson in consultation with the defender, although the pursuer did chose carpets, curtains and some fittings. When parties were living in the house a cleaner did most of the cleaning and the parties shared the residual day to day washing up. The pursuer did the ironing. The pursuer's financial contributions were significantly less than the defender's. It cannot, on any view, be said that the defender has derived any economic advantage from contributions made by the pursuer.
[51] The pursuer initially exaggerated the situation dramatically and claimed to have project managed major alterations to the property. I do not accept this evidence. I prefer the defender's evidence, supported by Campbell Thomson and Dawn Munro that Mr Thomson primarily project managed the alterations. I do not accept that the choosing of certain furnishing items can in any way be categorised as project management. The fact that the pursuer's name may have been on the planning application does not necessarily mean that she was actually doing anything active in relation to the project. Any financial contributions she made to Drummond Road were dwarfed by those made by the defender. She would have had living expenses wherever she was living. She did not require to pay rent or a mortgage. During her evidence, she seemed to suggest that she should be compensated for example for having paid two months council tax payment, ignoring the fact that the defender had paid the rest of the payments that year. She also seemed to ignore the fact that he was paying her the money which enabled her to make these payments. The pursuer approached this matter essentially as if she was claiming under section 9(1) of the Act i.e. she is looking for a distribution of property acquired by one or other of the parties during the period of the cohabitation. For the reasons set out in Gow v. Grant, this to my mind is clearly an incorrect approach.
Loss of earnings/earning capacity
[52] The pursuer claims on record that the defender's ending of the relationship caused a "reactivation of her previous vulnerability and caused her to suffer from depression and to develop an anxiety disorder, a loss of confidence, self esteem, mood and ability to cope which has made it extremely difficult for her to perform adequately in job interviews and applications." There is, in fact, quite simply no acceptable evidence of any applications for any employment after 1st December 2008. She went to live in the United States with Mr McSwain in January 2009 and appears to have been living off him ever since, supplemented by income from her sailing lessons. Sailing is clearly something that the pursuer enjoys and having found someone else who happens to own a boat and who is willing to support her and let her give sailing lessons, it is perhaps not surprising that she has not continued in her search for any other employment equivalent to her former RBS job. Even if, as the pursuer contends, the sailing instruction was done on a voluntary basis and was not paid work, it seems to me that she has made a deliberate choice to enjoy a certain lifestyle while being supported by Mr McSwain. For the reasons I have given I do not accept that she was in fact working on a voluntary basis. But in relation to whether or not she was actively seeking employment, I do not think that that particularly matters. Whether it was voluntary or paid work, she was not looking for other RBS equivalent employment.
[53] It is clear from Dr Anderson's psychological report (5/10/2) which contains certain extracts from the pursuer's G.P's records that the pursuer has had psychological difficulties and problems in the past, in some, but not all instances, arising out of relationships with men. Whatever problems she may have had in the past it is difficult to understand why she thinks that the defender should be responsible for paying her for the lifestyle that she has chosen to adopt. She is now living, apparently comfortably, and being supported by another man. She started living with him within a very few months of her cohabitation with the defender ending and was married to her new partner approximately one year after the end of her cohabitation with the defender. I do not accept that these psychological issues have any real bearing on her not having found an RBS equivalent job.
[54] In his submissions, the pursuer's senior counsel stated that the pursuer was capping her claim as at 31st December 2011. Try as I might, by pressing him on a number of occasions, I never got a satisfactory answer as to why this date had been fixed upon. Regardless of how many times I asked him, all I got in response was that the pursuer had made a concession in her evidence. Leaving aside the fact that until then the pursuer's case as pled made an open ended claim against the defender, for life, which was clearly unsustainable, I would like to think that the pursuer's representatives might have put some thought into an appropriate date rather than just relying on the pursuer for this. I finally asked if the date was an arbitrary one and still never got an answer, other than that the pursuer had made a concession. I could have understood if the pursuer's representatives had submitted that the appropriate date for any commitment to end might have been when the pursuer started living with Mr McSwain or even perhaps when she married him. The date of 31st December 2011 makes no sense whatsoever to me. It appears to be a totally arbitrary one. Given that no rational or logical explanation was put forward in evidence or submissions for this (or indeed any other) date, I have preferred the defender's submission that the appropriate date for any future loss to cease (were there was to be a finding in the pursuer's favour) would have been the date that she stopped looking for equivalent jobs to her RBS job. All of the evidence points to that date being 1st December 2008. Had she seriously been applying for jobs after that date there would be some evidence of those job applications. She did produce, at a very late stage (on the second day of the proof in December), some responses apparently from potential employers dated from January 2011 but these are vague and do not contain the original application or any covering letter so that it is impossible to know what they relate to. The pursuer's suggestion that there are numerous other e-mails containing job applications but that these have either been lost by her solicitor, her daughter (to whom she had e-mailed them for some reason) or had been deleted by some computer virus (although the previous ones apparently were not) was not credible. There is no vouching of any search for employment in the United States other than these "replies" from early 2011. There is in any event nothing at all to suggest any search for employment between 1st December 2008 and January 2011. It is evident in any event, that when she first went to the United States stating that she had gone there to look for work, she only had a visitor visa and would not have been eligible to work. Mr Keith was understandably puzzled by this account. His puzzlement is now easily understandable as it is clear that the pursuer was not telling him the truth. It is important to highlight that in cross-examination the pursuer eventually accepted that she had not in fact lost anything during the period of cohabitation with the defender "except her independence".
Employment Offer with F.S.I.
[55] The pursuer produced a written job offer (5/1/2) and claims to have discussed it with the defender who, she says, told her to refuse it. Under cross-examination it became clear that the date of the offer and the date of the required acceptance did not fit in with the dates when the pursuer's contact with the defender restarted sometime in late October 2007. The date for acceptance predated the parties' contact. The pursuer was completely unable to explain these discrepancies. It was clear that the offer was actually made as the defender confirmed in his evidence that a recruitment consultant had contacted him for a reference. I do not accept the pursuer's evidence on this chapter given her inability to explain the discrepancies identified. I prefer the defender's evidence that he had nothing to do with any rejection of the job offer and knew nothing about the pursuer rejecting it. He only knew about the offer having been made at all because he was asked for a reference which he gave. He did not hear about it from the pursuer. He could not have as the pursuer rejected the offer prior to the parties being in contact again.
Finances
[56] The court listened to parties and witnesses being taken through numerous spreadsheets, bank statements and credit card statements at length and in great detail. I should say at the outset that there was certainly a degree of double counting by the pursuer in respect that at times she counted payments made on a credit card and then counted again the payment from her bank account to pay the credit card bill as an additional payment. This double counting was obvious except to the pursuer and her representatives. For the reasons which I will outline, it is not necessary to carry out a detailed analysis of these figures. What I would say is that this exercise must have been extremely time consuming and expensive, involving accountants and the parties' own time. Moreover, given that the case pled was manifestly ill conceived and that the pursuer herself conceded during her evidence (when she was faced with the fact that her position was totally untenable) that she was no longer seeking payment of loss of earnings during the periods of the parties' cohabitation, most of this exercise was completely unnecessary. I note that this concession was accepted in the pursuer's closing submissions. The defender was put to expense in carrying out this exercise and required to do so to show that the claim was ill conceived. In detailed cross-examination of the pursuer she ultimately accepted that the defender had provided her with £66,000 net. This was made up of a payment of £20,000 together with regular monthly payments of £4000 and £5000 (which her senior counsel strangely insisted on calling "housekeeping money") together with other one off payments, such as £8000 for a medical procedure. This sum was completely tax free in the period from 7th November 2007 to 11th October 2008 and significantly exceeded what she would have received from RBS. In addition the defender paid by far and away most of the parties' living costs and expenses during the periods of cohabitation, as is to be expected when one partner in a relationship is significantly wealthier than the other. Eventually the pursuer also accepted she had kept a significant amount of jewellery given to her by the defender and benefited from a £2800 airfare. Accordingly I have no hesitation in holding on this matter that the pursuer substantially benefited financially from the parties' cohabitation.
Jewellery
[57] As noted above the pursuer retained jewellery that the defender had given her. This was valued at £43,200 for insurance purposes (see insurance valuation 6/1/37). She accepted she had kept this jewellery. She further accepted that the valuation was not complete and she had some more jewellery from the defender which was not included in the valuation (for example, the watch that she wore in court throughout her evidence). The defender accepts that the replacement valuation of £43,200 is not the resale value of these items and was prepared to, conservatively, accept the retail value of the items at £25,000. I hold that the pursuer's evidence that she sold all of the jewellery in the valuation for "scrap gold" for around $6,700 to pay her legal fees is inherently implausible. She produced no vouching to support this assertion. Furthermore, the valuation list clearly contains a large number of pieces of jewellery containing precious stones and not just gold. To my mind after considering the evidence it is inherently unlikely that the jewellery on the valuation list would only have achieved the sum of $6,700 on resale. The pursuer was given the opportunity to clarify her evidence on more than one occasion but stuck to her version of events notwithstanding the inclusion in the list of many items of jewellery containing precious stones. In this respect I prefer the defender's position that these items should be conservatively valued in the region of £25,000. The issue of the jewellery was raised by the defender in his pleadings. The pursuer had ample time to produce vouching of the sale price. She has been unable or unwilling to do so.
The Pursuer's whereabouts
[58] There have been numerous amendments to the pursuer's pleadings. The initial writ (No. 1 of process) was lodged on 27th October 2009 and gives her address as care of her daughter in Leeds. The first record (No. 10 of process) was lodged on 1st December 2009 and therein she is still designed as living in Leeds. An amended record (No. 11 of process) was lodged on 22nd January 2010 where she is again designed as living in Leeds. A fourth record (No. 16 of process) is dated 29th June 2010 where she is yet again designed as living in Leeds. A fifth record (No. 21 of process) dated 31st March 2011 still has her residing in Leeds. A minute of amendment dated 20th September 2011 (No. 23 of process) contains the pursuer's United States address for the first time and this was only disclosed months after various calls were made on her by the defender to state her current address. An amended record (No. 26 of process) lodged on 14th October 2011 is the first record containing the United States address. A subsequent record was lodged on 27th October 2011 (No. 29 of process) which is the record that has been used at the proof.
[59] The pursuer's legal aid certificate is dated 24th November 2010 (No. 5/9/1 of process). In that certificate she is designed as care of her solicitors, Kippen Campbell, and not at her United States address nor indeed at the Leeds address. I am not aware what address was in her legal aid application form. It is, I think, reasonable to assume that either the pursuer put her correct (United States) address or the previous (c/o her daughter in Leeds) address in the application but for some reason asked for it not to be disclosed on the certificate, or else the application was submitted with her being designed simply as care of her solicitors.
[60] The pursuer was asked in cross-examination whether she had carried out the appropriate procedures when applying for legal aid, given that she was living in the United States by that time. It was suggested to her that she might have had to swear the application on oath. She gave very vague answers in response. She was unwilling to assist the court much. She thought she had not sworn anything on oath but insisted she had told the Scottish Legal Aid Board that she lived in the United States. In any event, whether she complied with procedures or not, it is clear that the defender and his legal advisors had no way of knowing that she was living in the United States when the legal aid certificate was issued.
[61] It was only because Dr Anderson's report, which contained reference to her living in the United States, was lodged in May 2011 that the defender had any inkling of this situation. To say that there has been a lack of candour in the pursuer's position is a gross understatement. Clearly the defender has lost any opportunity to protect his position in the usual way when it is known that a party is living abroad, such as sisting a mandatory or moving for caution to be lodged. In this case, the pursuer has amended her pleadings on a number of occasions. On two separate occasions at debate she was found liable for the expenses of those debates and the subsequent amendment procedure. This was before legal aid was granted. In these circumstances it appears quite probable that a motion for caution or to sist a mandatory would have been successful had it been known that the pursuer was residing in the United States. Clearly, from the evidence and from the pursuer's own admissions, by the time her legal aid application was lodged, she was already living permanently in the United States. The only conclusion I can reach is that there have been deliberate attempts by the pursuer to hide her true residence from the defender.
The Pursuer's Pleadings
[62] I have already dealt with the pursuer's lack of credibility in general terms. The pursuer's pleadings on record contain numerous inaccuracies. What follows is not a conclusive list but simply some examples. All of the following points were put to the pursuer during her evidence.
[63] She claims on record that she has no home or accommodation of her own. In fact she jointly owns a house in the United States.
[64] She claims to have stayed in New Zealand from October 2008 until she returned to Leeds in January 2009 because her New Zealand visa expired. This is untrue. Her visa had not expired. It was valid for 6 months from October 2008. She tried to suggest in evidence that she had to use her air ticket by a certain date and her visa would not be valid without a return ticket. This was also incorrect as the ticket was a flexible one and lasted a year. Dawn Munro who had organised it and the defender who had paid for it both spoke to this matter. I accepted their evidence. The pursuer could change the dates any time and, in fact, did herself change the dates of travel.
[65] She claims to have entered the United States on 24th January 2009 and stayed with "family friends who were the parents of Mr McSwain". In fact Mr McSwain's mother had died a year before the pursuer went to the United States.
[66] She claims on record to have met Mr McSwain again for the first time in February/March 2009. This is clearly untrue. She met up with him in January 2009 when she went to the United States to be with him. She eventually accepted this in cross-examination.
[67] She claims on record to have returned to the United States in June 2009. In fact she returned in May 2009.
[68] She claims on record to have commenced "living in family" with Mr McSwain in or around March 2010. I regret to say that I can only describe this as a blatant lie. She was living with him in early 2009, was described in Mr McSwain senior's obituary in March 2009 as his partner, and was in fact married to him by October 2009.
[69] While it was stated, eventually, that she was living "in family" with Mr McSwain (albeit from an incorrect date), no mention was made of a marriage despite calls being made on record to disclose her status and her right to reside in the United States. Her evidence in relation to the nature of her relationship with Mr McSwain was, at times, astonishing. It was breathtaking how often she changed her story on this matter. It is now clear that on the very first day of her evidence on 14th November 2011, she was completely unaware that the defender's legal advisors had discovered, from information openly available on the internet, that she was married to Mr McSwain. Even so her evidence was extremely confused and confusing. When first asked, she told the court it was a "permanent relationship". She went on to describe some sort of irregular marriage law, apparently existing in the neighbouring state of South Carolina, whereby a couple would be considered married if locked in a hotel room for 24 hours together. She went on to say that she and Mr McSwain considered their relationship like that, the clear inference being that they were not officially married. She then went on to say that it was a sort of civil marriage but that it was not valid in the U.K. and she knew that because the British Embassy in Washington had told her. She also suggested at one point that she wanted all her family to be present at her wedding and therefore wanted to get married in the U.K. She would do that when Mr McSwain was able to get time off work as she "wanted it done properly this time with no half measures as before". She was given every opportunity to clarify this confusing chapter of her evidence in chief. Her final position, however, in response to a direct question from the court was that she was not married. It was only after the first day of evidence when, as I have now been told during submissions, the defender's legal team advised the pursuer's legal team that they had found an entry in the online Onslow County, State of North Carolina marriage register showing that the pursuer was married, did she accept, on the second day of her evidence (in December), that she was indeed married and in fact produced and lodged the marriage certificate (no 5/14/2 of process). Rather than being an informal relationship or an irregular marriage or indeed even a civil marriage, the marriage was clearly a religious one which had been celebrated by a U.S. Navy chaplain, the Reverend Myron D. McConville.
[70] It is difficult to understand why the pursuer chose to be so obscure and contradictory on this matter. Possibly she thought that the fact she was married to Mr McSwain might affect her claim against the defender and if she were not married it would enhance the value of the claim. Possibly she thought no-one would check the North Carolina marriage records. Her suggestion that the British Embassy might have told her that the marriage was not valid in the U.K. is to my mind risible. While on oath, she made all of these different claims. There can be no innocent explanation for them. They cannot be explained by memory loss over passage of time or by her confusing minor details. Her senior counsel's attempt to explain this in submissions as the pursuer being "in denial" about being married to Mr McSwain is plainly wrong. This claim was not backed by objective evidence. Even her own expert psychologist did not try to explain it in such a way. These lies have been flushed out by the defender's legal advisors' investigative work.
[71] I have found the conduct of the pursuer in this case to be extremely concerning. I assume that her legal team have not colluded with her to put forward untruths to the court. It seems all too possible that the pursuer has lied to them as well as to the defender, her own experts and the court.
Decision
[72] Faced with such a complete lack of credibility on the part of the pursuer, the law relating to s28 somewhat falls away as was submitted by the defender's senior counsel. She is a witness of so little credit that I cannot attach any significant weight to her evidence at all and where it differs from that of the defender, I have preferred the defender's evidence. The decision I have reached is that the pursuer is lacking in all credibility, has not proved any economic disadvantage (whether for the benefit of the defender or not), and has not therefore proved her case. To my mind that is an end to it.
[73] However I will deal with the defender's "back up position" that the pursuer was in any event "in profit" and the remaining issues which were addressed in closing submissions. Firstly was there one period of cohabitation with a gap in the middle or two? This could be critical although as it happens not in this case given my findings and the position the pursuer ultimately adopted. The pursuer's suggestion was that as there is nothing laid down in the legislation as to how a gap should be dealt with I should take a broad approach and consider that this was one period with a simple break in the middle. The defender's position was that there were two separate periods. If that were found to be the case then the first period is time barred as any claim has to be raised within 1 year. Parties were not agreed on when the second period started (or the break ended), with the pursuer claiming that they started cohabiting again in October 2007 (after a split in August 2007) and the defender claiming they started cohabiting again in early February 2008. For the reasons I have already given I preferred the evidence given by the defender on this matter. It was backed up by evidence from Dawn Munro and Maria Budayova. In addition it is supported by the bank and credit card statements of the pursuer herself which show that during the period from November 2007 to February 2008 she was doing her supermarket shopping in Milton Keynes and not Inverness. The pursuer's submission that they travelled together on a business trip abroad during this period (as they had done during the cohabitation period) must mean that they were cohabiting again made no logical sense. I have therefore found that the periods of cohabitation were from 1st September 2006 to 24th August 2007 and then from February 2008 to 11th October 2008. It is a question of fact in each case whether there are separate periods of cohabitation or one period with a break (such as is allowed in matrimonial cases when considering the length of separation). Given the short time periods involved and the length of the separation relative to the periods of cohabitation it seems to me that the "gap" in the middle should be considered as an actual break and that there are 2 separate periods of cohabitation. The first is for around 11 months, then there is a break of 6 months (although the defender accepts they were seeing each other "as boyfriend and girlfriend" from October 2007 to early February 2008), then a further period of cohabitation of around 8 months. On that basis, it follows that only the second period would be covered by the case, the first period being time barred. The defender's counsel however indicated that he had chosen simply to treat the claim as if there was only one period of cohabitation covering the whole period from September 2006 to October 2008 for the purposes of calculating any loss because it was clear on the evidence and the admission on record, that even if the pursuer's own dates were used (one period of cohabitation with a break), she could not succeed. On that basis, accordingly, I have treated the case as if the pursuer's submissions are correct in this respect.
[74] It was argued for the pursuer that the defender gained economic advantage by the pursuer working for Orion. I do not accept she actually worked for Orion (in terms of carrying out work related activity) although she clearly was (wrongly) paid through their payroll (which discrepancy was sorted out with HMRC). It was said she attended business trips and charity and networking events. I see no advantage to the defender in this. He would have attended these events anyway. There was no satisfactory evidence before the court to suggest otherwise, only suggestions made by the pursuer. The defender was happy to have her with him as company if she wanted to attend but I do not accept that he would not have attended these business trips without her as she claimed. Indeed it seemed the pursuer's senior counsel backtracked in submissions from the claim that she worked from home for Orion and accepted that she attended one meeting with the defender in New Zealand as the defender has spoken to. There was no evidence whether her attendance at that meeting benefited the defender or not. It was also suggested that the defender benefitted financially as he did not make pension contributions for her. I did not follow this argument. Clearly he made significant payments to her which would not have been made but for the parties' cohabitation.
[75] On day three of her evidence the pursuer, according to her senior counsel, made a "concession" that she was no longer seeking to claim loss of earnings for the period from 31st August 2006 (when she gave up work with the Royal Bank of Scotland) to 11th October 2008 (when the cohabitation period ended). In fact, to have continued with this claim, which was until then on record, would have been completely untenable given the position the pursuer was eventually forced to adopt in cross-examination when taken through the various figures. It was abundantly clear that she had not suffered any loss of earnings during that period as the defender, through his company in the first period, and by himself in the second period, was making payments to her equal to her RBS package until November 2007 (a fact that is admitted on record) and in excess of that package from then on. The "concession" is therefore simply an admission and acknowledgment that the claim as pled was unsustainable and unsupported by any evidence, even her own. After some painstaking and methodical cross examination taking her through the financial information she had lodged (credit card statements and bank statements) she eventually accepted she was in fact £11,000 better off in cash terms alone at the end of the relationship than at the start. She accepted Orion had paid her £46,123 and that the defender paid her £66,000 tax free. She eventually conceded that it was correct that she had not lost anything during the relationship "except her independence". Any remaining claim for loss of earnings/earning capacity could therefore only arise from 11th October 2008.
[76] I have already mentioned the pursuer's "concession" in that she was content to cap the loss of earnings capacity claim as at 31st December 2011. As already indicated, I found no logic to this at all. She claims £116,800 for loss of earnings capacity, income and benefits from 11th October 2008 to 31st December 2011. The only period during which it might be appropriate to consider a claim for loss of earnings capacity at all is the period until 1st December 2008 as there is no satisfactory evidence whatsoever that she continued to look for an RBS equivalent employment after that date. Accordingly her claim under this head, at its highest, should be restricted to the period from 11th October 2008 to 1st December 2008, a matter of weeks.
[77] The pursuer also claims a loss of pension rights from 31st August 2006 until 31st December 2011 (capped on the basis of the same "concession"). This was valued at £55,000 using Dr John Pollock's report. The defender's submission that until November 2007 the pursuer has already accepted on record that the defender paid her an equal package is correct. There can be no claim for pension loss until November 2007. That is the end of that matter.
[78] In addition, it is abundantly clear from November 2007 to 11th October 2008, taking the pursuer's evidence, and the reports from her experts, Mr Brian Keith and Dr John Pollock that she was paid by the defender grossly more than what she would have received from her RBS package, including loss of pension rights. It is clear from the additional payments and benefits given to the pursuer by the defender that what she ended up receiving was greatly in excess of what she would be entitled to in terms of pension rights. As the defender's senior counsel submitted, even if the date of 1st December 2008 were incorrect and the pursuer were found to be entitled to pension loss for a year, for example until the date of her marriage to Mr McSwain, she would be entitled, on Dr John Pollock's figures, to a figure of less than £9,000. Taking this sum from what the pursuer actually received from the defender still leaves her with significantly more than she would have received from the Royal Bank of Scotland and accordingly this claim must fail too. If the claim were restricted, as I have found, to 1st December 2008, any pension loss would be valued in the region of £1200.
[79] In terms of the Drummond Road property, the pursuer claims economic disadvantage in the sum of £47,700.25. The submission is flawed on a number of levels. It is made on the assumption that the pursuer's financial contributions on record were all proved and these, together with the non-financial contributions she said she made to the home (project management of alterations and the cleaning that she claimed to carry out), were all to the defender's benefit. The pursuer has, however, failed to take into account that the financial contributions made to the home by the defender were significantly in excess of the financial contributions made by her. She has also ignored the fact that she took a van load of property from the home away with her when the cohabitation ended. This was spoken to by the defender, Dawn Munro, Maria Budayova and perhaps more importantly by Campbell Thomson who actually drove the van to Leeds for her. Her claim to have taken only two cups and two plates lacks any credibility. Other than doing a share of the day to day washing up and doing the ironing, which she apparently enjoyed, I have found her evidence that she carried out all the cleaning lacking in credibility given Maria Budayova and the defender's evidence on this. Likewise, I found her evidence that she project managed the house alterations to be untrue. I do not see that the pursuer is entitled to anything under this head of claim. She seems to be seeking a share of the increase of the value of the property as if this were a s 9(1) claim. There is no basis for such a claim under s 28 of the Act.
[80] I consider that there is no need to carry out a laborious or detailed analysis of the figures, given the concessions eventually made by the pursuer's senior counsel as to the remaining heads of claim. A broad axe approach is sufficient in the circumstances. The pursuer accepted she had received from Orion a sum in excess of £46,000 up to 6th November 2007. She also admitted, eventually, receiving £66,000 cash from the defender during the period 6th November 2007 to 11th October 2008, tax free. In addition she received and retained jewellery worth (conservatively) around £25,000. Furthermore she received the airline tickets to New Zealand worth around £2800. She had the use of a BMW during the gap between the two periods of cohabitation. She also had the use of a Mini until she instructed her solicitors to demand that the defender pick it up after she went to the United States. She also took a van load of household goods from Drummond Road which she retained. By her own admission she retained a lot of high value clothes. Finally she accepted in cross examination that she was a great deal better off living with the defender and that by the time they separated in October 2008 she had no loss in monetary terms.
[81] Taking, (for present illustrative purposes only), an end date for any pension loss as the date of her marriage to Mr McSwain, namely 17th October 2009, which is almost exactly one year after the end of the period of cohabitation, on Mr Pollock's figures the value of the pursuer's loss under this head would be under £9000 a year. Looking at Mr Keith's report (5/10/1) the net value of her annual package with RBS amounts to £36,097 at 2009 figures. It is clear therefore that from 6th November 2007 to 17th October 2009 she would have received a package worth approximately £36,000 net per annum from RBS had she still been working there totalling less than £72,000 for the period in question. Adding in almost two years pension loss would give a total maximum possible claim of somewhat less than £90,000 from 6th November 2007 to 17th October 2009. Using any basic arithmetical calculation, given the figures contained in my findings in fact (based on the pursuer's own admissions and the evidence I heard), it is clear that the pursuer has received from the defender in excess of what she would have received from RBS during that period even including a loss of earnings and a pension claim for a whole year following the separation. If the appropriate end date were taken as 24th January 2009 (when she went to live with Mr McSwain in the United States) or 1st December 2008 (when she stopped looking for RBS equivalent employment), she would be even more significantly "in profit".
[82] As indicated earlier, when considering the case of Gow v Grant, the purpose of the legislation is to enable a court to correct any clear and quantifiable economic imbalance that might have resulted from cohabitation. In this case, the pursuer appears to have taken the view that because the defender is financially better off than her she is entitled to benefit from that fact, whether or not the defender has actually derived economic advantage from any contributions made by her and whether or not she has suffered any economic disadvantage in the interests of the defender as a result of the cohabitation. For the reasons I have given it is abundantly clear that the pursuer has suffered no economic disadvantage whatsoever in the interests of the defender resulting from the cohabitation. On the contrary, she has derived the significant economic advantage as outlined above. Her claim, or what is left of it after the concessions made by her senior counsel that parts of it cannot be sustained, taken at its highest, even if I had accepted her evidence to any material extent, is ill founded. In these circumstances, the defender is entitled to decree of absolvitor.
[83] I was referred by the defender's senior counsel to Robertson & Gough v. HMA [2007] HCJAC 63 where there is a quotation from Hume who describes prevarication as:
"the wilful concealment of the truth; which is next in degree to perjury, and seems chiefly to differ from it in the inferior boldness of the culprit; who though desirous to mislead the Judge, and make a false impression, has rather chosen to compass this object in the way of an artful and tricking oath, than by the direct averment of utter falsehoods; or, if he has ventured on any such, has not persisted in them till the close of his oath. This sort of guilt is chiefly to be gathered from the evasive and equivocal answers of the witness, the inconsistency of the different parts of his oath, and his affected ignorance and want of memory, with respect to things which he cannot but know; more especially if he is at last driven from all these shifts, and is constrained to emit a true, though, taken on the whole, an incoherent and a contradictory deposition".
[84] This quotation is from a High Court case dealing with contempt of court. In my view it is also an accurate description of the pursuer's behaviour throughout this case and, in particular, of her evidence in the witness box. It is rare indeed for a court to be put in the position where it has to disregard so much of the evidence of a party to an action. The pursuer is lacking in any credibility whatsoever. Her motivation is known only to herself. Whether she is simply bitter at the defender's ending of the relationship and seeking revenge for the emotional distress caused to her or whether she saw the raising of the action as a means to benefit financially on the assumption that the defender would not wish to incur the expense and publicity of court proceedings is not clear. A clue to her motivation might be found in her response to a question in cross examination when she was asked about suing the defender for half a million pounds. She replied "yes, but not half his millions". Whatever her motivation, it is of concern that anyone should use the court process in the way she has. I must pay tribute to the alertness of the defender's legal advisors. Had they not carried out such significant internet research the pursuer's deception might never have been discovered. It was only when the matters relating to her status in the United States and her relationship with Mr McSwain were put to the pursuer in cross examination did she finally accept they were true. She was thus forced to accept that a large part of her evidence, and her claim on record was based on lies. I am not clear whether the pursuer is or is not a fantasist. However the inescapable conclusion I am drawn to is that she has deliberately misled a number of people including the court, the defender, her own solicitors and her experts in her prosecution of this action.
[85] For these reasons I will arrange for a copy of this judgment to be passed to the Scottish Legal Aid Board for consideration.