Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS   Case Number: F311/11 2014SCEDIN15
	Judgment by   SHERIFF PRINCIPAL MHAIRI M STEPHEN   in appeal by   RICHARD ALEXANDER MILLER Appellant   in the cause   CATHERINE SALVADORI or MILLER Pursuer and Respondent   against   Richard ALEXANDER Miller Defender and Appellant   ___________________________

 

Act:  Party, Appellant

Alt: Innes, Advocate for Respondent

 

 

EDINBURGH, 30 April 2014

The Sheriff Principal having resumed consideration of the cause of consent allows the appeal quoad the first ground of appeal and appoints interest to run at the judicial rate on the capital sum of £207,607.10 from the date of decree until payment;  quoad ultra refuses the appeal and adheres to the sheriff’s interlocutors of 28 June and 7 August 2013;  finds the respondent liable to the appellant in the expenses of the appeal up to 1 October 2013 thereafter finds the appellant liable to the respondent in the expenses of the appeal from 2 October 2013;  allows an account of expenses to be given in and once lodged remits same to the Auditor of Court to tax and to report.

(signed) Mhairi M Stephen

 

NOTE:

1. This is a divorce action at the instance of the wife who seeks divorce, together with an exclusion order in respect of the husband’s occupancy rights in the former matrimonial home and certain interim and protective orders.The appellant who is the husband seeks certain financial orders.The action commenced in the summer of 2011 and proceeded to proof before the sheriff in Livingston over four days commencing on 5 April 2013.Proof was restricted to the evidence of the parties and each led evidence from a chartered surveyor.By interlocutor of 28 June 2013 the sheriff granted divorce in terms of the pursuer’s first crave and otherwise dismissed the remaining craves and pleas in law for the pursuer.The sheriff granted decree for transfer of the property at St John’s Road, Edinburgh from the pursuer to the appellant and awarded a capital sum to the appellant of £207,607.10.The sheriff continued consideration of expenses and the timescale for payment of the capital sum until a hearing on 26 July 2013.Following certain undertakings given by the pursuer or on her behalf the appellant did not insist on his crave for periodical allowance or the transfer of the motor vehicle.

    

2. The appellant’s original ground of appeal relates to the sheriff’s failure to award interest at the judicial rate on the capital sum from the date of decree.That ground of appeal now forms the first ground of appeal in the amended note of appeal.Subsequently, a further 10 grounds have been added by way of amendment.The first and original ground is conceded.

    

3. Ground 11 strictly speaking does not articulate any point of law far less an error in law but rather refers to a typographical error.This was accepted by the appellant and, indeed, by the respondent at the outset of proceedings.Nothing turns on this error which relates to the year when the appellant ceased to occupy the former matrimonial home namely 2012 not 2013.Grounds 7 to 10 inclusive relate to the sheriff’s findings on expenses following the hearing on expenses on 26 July 2013.The sheriff’s judgment and reasoning on expenses can be found in the second or supplementary judgment dated 7 August 2013.

    

4. The appellant’s sixth ground of appeal challenges the competence of the sheriff’s order dated 28 June 2013 in respect of the deferment of payment of the capital sum.At the commencement of the appeal hearing counsel for the respondent indicated that the sale of the former matrimonial home was due to settle the day following namely, Friday 17 January 2014.She produced an irrevocable mandate from the pursuer whereby the proceeds of sale were to be consigned in the hands of her solicitors in order to discharge any standard security or debts, marketing fees and thereafter to satisfy the decree in respect of the capital sum due to the appellant.Standing the terms of the irrevocable mandate this ground of appeal, although argued by the appellant, was essentially academic.

    

5. Grounds of appeal 2 to 5 inclusive relate to incidental orders in respect of interest and the parties’ overdraft (Grounds 2 and 3) and the sheriff’s approach to special circumstances in the division of the matrimonial property (Grounds 4 and 5).

    

6. The record (as further amended) sets out the parties’ respective positions.The pursuer, who is the wife, seeks divorce based on the appellant’s adultery.The appellant has a counter crave for divorce based on the parties’ non-cohabitation for two years.There is a dispute as to the date of separation or “relevant date”. The pursuer maintains that the relevant date is June 2011 whereas the defender contends for February 2009.Clearly this is of some importance not only for the purpose of valuation but also due to the appellant’s contention that divorce should be based on two years separation.Shortly prior to the proof the appellant conceded the relevant date as June 2011 as averred by the pursuer.The relevant date having been conceded it would appear that the pursuer’s live craves for proof related to divorce and expenses.It is not clear from the pleadings on what basis the pursuer was arguing for an unequal share of the matrimonial property as at the relevant date.It is a feature of this case that the preponderance of the matrimonial property is in the sole name of the pursuer.There are averments to the effect that the appellant transferred the title to the heritable property into the name of the pursuer during the marriage for reasons of tax efficiency and to protect or shelter the property against attachment or inhibition in the event of there being a dispute with his business partner.

    

7. The sheriff makes findings in fact with regard to the financial matters

   “13    The defender was the main breadwinner and the pursuer was the main carer of the two children.  Both contributed equally to the marriage.

   14.    The defender was in complete charge of the financial affairs of the marriage until the pursuer began to question him about such matters in 2008.

   15.    The defender made the decisions about title to the various heritable properties purchased throughout the marriage.  The Mill House was purchased in joint names but he decided to transfer it into name of the pursuer.  He purchased two other properties – a shop at 70/71 Main Street, Newtongrange (“the shop”) and an office at 263B St John’s Road, Edinburgh (“the office”) which he put into name of the pursuer.  He did that for tax reasons but also to avoid attachment or inhibition of any heritable property in his name.  He also arranged for bank accounts to be in name of the pursuer for the same reasons.”

    

8. The sheriff heard evidence over three days from the parties and their respective surveyors.The sheriff deals with two of three disputed areas briefly. These are the grounds for divorce and the value of the Mill House at Leithhead Farm being the former matrimonial home.The appellant admits his adultery and divorce is granted on the basis of that admission together with the evidence of the pursuer and the corroborating affidavits.With regard to the disputed value of the former matrimonial home the sheriff accepts the valuation given by the appellant’s surveyor who was able to give a valuation as at the relevant date.The pursuer’s surveyor had not valued the property as at the relevant date. The value is therefore £390,000.

    

9. The principal area of dispute relates to the sharing of the matrimonial property.In that regard the sheriff required to apply the statutory rules laid down in the Family Law (Scotland) 1985.(“the 1985 Act”)Section 8 is the operative section and is subject to the principles which follow in sections 9, 10, 11 and 12.In section 8 after enumerating the orders that either party may apply to the court for, the operating provision for the court is sub-section 2 in the following terms:-

   “Subject to sections 12 to 15 of this act, where an application has been made under sub-section (1) above, the court shall make such order, if any, as is –

   1. Justified by the principles set out in section 9 of this act; and
   2. Reasonable having regard to the resources of the parties.

       

      Thus before making any order or incidental order in relation to financial provision the court must have regard to the principles set out in section 9 and whether the order is reasonable having regard to the “resources of the parties”.

       

10. Section 14 deals with incidental orders.

     

11. The Sheriff dismisses all of the pleas in law for the pursuer apart from the first plea in law.She repels the sixth plea which seeks an unequal division of the matrimonial property based on section 11(7) of the Act.That section deals specifically with the conduct of either party to the marriage and states that the court shall not take that into account unless that conduct has adversely affected the financial resources which are relevant to the decision of the court.The sheriff rejects the argument that the appellant’s conduct leading to his dismissal from employment as a solicitor with the Registers of Scotland due to gross misconduct has adversely affected the financial resources relevant to the claim.She does so as there was no evidence to link the dismissal with a negative or adverse effect on the net matrimonial property.The sheriff likewise rejects the pursuer’s arguments relating to economic disadvantage there being no averments on record to support a case under s.9(1)(b) of the 1985 Act.The sheriff accepts the contingent CGT (Capital Gains Tax) on the transfer of the office to be a special circumstance in terms of section 10 of the 1985 Act.The sheriff accepts that there are special circumstances advanced on behalf of the appellant such as to warrant an unequal division of the matrimonial property.In particular, the sheriff accepts as a special circumstance the source of funding of the property once owned by the appellant in Murrayfield Avenue and applies that towards an unequal division of the matrimonial property.On the other hand the sheriff rejects the contention made on behalf of the pursuer that the sum of £34,000 inherited from the pursuer’s father should be regarded as a balancing special circumstance.She does so as there is no evidence which would allow the court to quantify the benefit conferred on the parties and the matrimonial property by that inheritance.

     

12. The sheriff rejects the appellant’s contention that special circumstances exist in terms of section 10(6)(c) of the 1985 Act in respect of the destruction dissipation or alienation of the appellant’s personal belongings, clothing etc.Her refusal to find that the dissipation of these items constitutes a special circumstance is the fifth ground of appeal.The sheriff’s finding that the pursuer’s contingent CGT liability is a special circumstance for the pursuer forms the fourth ground of appeal.

     

    SUBMISSIONS FOR THE APPELLANT

13. The appellant presented written submissions in support of his grounds of appeal together with authorities numbered in excess of 30.The appellant’s written note of argument extends to some 75 pages.The appellant, who is a solicitor, addressed me on the grounds of appeal by reading his submissions and where appropriate referring to the authorities lodged by him.In order to allocate to the respondent’s counsel opportunity and time to reply I required the appellant to summarise his submissions in support of the appeal.Such prolixity in argument causes difficulty not only with the fair allocation of time in court but it does nothing to assist in understanding the legal propositions which the appellant wishes to rely upon.The legal propositions on appeal should be succinct and clear.See Tortolano v Ogilvy Construction Limited [2013] CSIH 10 and the opinion of the Lord Justice Clerk at paragraph 10.

     

14. Accordingly, I do not propose to rehearse the appellant’s argument in detail but will deal with the grounds of appeal sequentially.The appellant’s motion in respect of his grounds of appeal is set out on page 2 of his note of argument in the following terms:-

     

    “Motions

    To recall/vary the sheriff’s interlocutor of 28^th June 2013 insofar as it relates to the matters being appealed and to:

    To sustain the defender’s third plea-in-law and grant decree in terms of crave 2 ordering the pursuer to pay a capital sum and to substitute the figure of “£240,.333.80” for the figure of £207,607.10 and to delete the words “within a timescale to be after wards fixed” in relation to the order for payment of the capital sum.

    To sustain the defender’s fourth plea-in-law and to grant an incidental order in terms of crave 5 ordering the pursuer (a) to pay interest on the capital sum at a rate of 8% in respect of the period from the relevant date (17^th June 2011) to the 28^th June 2013 [742 days] and (b) at a rate of 8% per annum from 28^th June 2013 until payment.

    To sustain the defender’s fourth plea-in-law and to grant an incidental order in terms of crave 6 ordaining the pursuer to clear the overdraft on the parties’ joint Royal bank of Scotland Account, to pay all interest and charges accrued thereon in the meantime, and to deliver to the defender a signed RBS form requesting her removal form the account all within four weeks from the date of decree to follow hereon.

    To recall/vary the sheriff’s interlocutor of 7^th august 2013 insofar as it relates to the matters being appealed and to:

    Grant sanction for junior counsel for the proof and the hearing on expenses.  Award expenses to the defender for the period from 14^th December 2012 on an agent/client, client-paying basis.

    Award an uplift in expenses to the defender for the period from 14^th December 2012 at the rate of at least 50%.

    Award expenses to the defender for the period from date of service of the action (9^th September 2011) to 13^th December 2012, insofar as not already dealt with by the court, on an agent/client, client-paying basis and, in addition or in the alternative, to award an uplift of at least 50% on such expenses, and which failing to award such expenses on a party and party basis.

    Delete the order for deferment for a period of 6 months of the payment of the capital sum award.

    To grant an incidental order in terms of section 14(2)(f) and/or (k) of the Family Law (Scotland) Act 1985 for the pursuer to provide security for the payment of the capital sum, interest and expenses both in the form of a standard security (postponed to any existing security) over the shop property at 70/71 Main Street, Newtongrange, (and that within 10 days of the date of the court’s order in this regard and failing execution and delivery of the same by the defender by the said date to authorise the sheriff clerk to execute and deliver the same on behalf of the pursuer) and to require the pursuer to lodge the net free sale proceeds (under deduction of (a) the sum required to discharge the security over the property and (b) the sum required to meet the legal and estate agency expenses of sale) from the sale of Mill House on deposit receipt in the joint names of the pursuer and the defender until final determination of this appeal in order to meet the defender’s award in full in respect of capital sum, interest and expenses.

    For the expenses of the appeal.”

     

    The appellant was made aware that the sale of the former matrimonial home was due to settle the day following the appeal hearing (17 January 2014).  The wife had executed an irrevocable mandate in respect of the free proceeds of sale from which would be met in full the capital sum payable to the appellant (together with interest from the date of decree) and the overdraft.  The appellant nevertheless maintained his argument in support of ground of appeal 3 – relating to the overdraft and ground 6 relating to the deferral of payment of the capital sum which he argues is incompetent.

     

    SUBMISSIONS FOR THE RESPONDENT

15. Ms Innes, for the wife respondent, also lodged submissions and briefly replied to the appellant’s submissions.The respondent had conceded the original ground of appeal some time ago prior to the fixing of the appeal hearing.

     

16. I was informed that the pursuer had signed an irrevocable mandate to the effect that the capital sum due to the appellant in terms of the sheriff’s decree would be paid from the free proceeds of sale of the matrimonial home, Mill House.That transaction was due to settle on 17 January 2014.The pursuer has also undertaken to give effect to the sheriff’s decision on the joint overdraft which would be paid off from the free proceeds of sale and as this is a joint responsibility 50% of the overdraft repaid will be deducted from the capital sum due to the appellant.Accordingly, it was suggested that grounds 1 and 6 were now conceded or academic given (a) the concession on judicial interest from the date of decree and (b) the terms of the irrevocable mandate.

     

17. In essence Ms Innes argued that the appeal should be refused on both the merits and expenses.The sheriff had given reasons for her decisions on the parties’ respective craves.The sheriff’s function in determining financial provision was governed by the terms of the Family Law (Scotland) Act 1985.In this case sections 8 to 14 are relevant.The sheriff had a wide discretion and her decision did not disclose any error in the exercise of her discretion.

     

18. I was referred to the following authorities by Ms Innes:- Little v Little 1990 SLT 785;Geddes v Geddes 1993 SLT 494;Welsh v Welsh 1994 SLT 828;Sweeney v Sweeney 2006 SC 82;W v W 2013 FAM LR 85; Jacques v Jacques 1997 SC (HL) 20 and Ali v Ali (No 2) 2002 SLT 602.On the matter of expenses I was again referred to Little (supra); Sweeney (No 2);Macphail on Sheriff Court Practice;Whittome v Whittome (No 2) 1994 SLT 130 and McKie v Scottish Ministers 2006 SC 528.

 

19.       The respondent’s motion is to adhere to the sheriff’s interlocutors subject to the concession on the judicial rate of interest applicable on the capital sum from the date of decree.  Ms Innes did not seek the court’s sanction for the employment of counsel in the appeal but sought the expenses of the appeal in the event that the appeal was refused.

 

decision

20.       The sheriff’s function is to consider and evaluate the evidence led at proof; make findings in fact arising from the evidence and then apply these facts to the respective craves and pleas in law of the parties applying the statutory rules and principles set out in the Family Law (Scotland) Act 1985.  In so doing the sheriff has a wide discretion within the framework of the legislation.

 

21.       On the other hand the function of the appellate court is quite different.  The principles which apply to the appellate court in deciding appeals against discretionary decisions are well settled.  A series of decisions have stated and repeated the dicta of Lord Thankerton in Thomas v Thomas 1947 SC (HL) 45.  The passage from Thomas v Thomas is conveniently set out in Macphail on Sheriff Court Practice (18110 to 18112).  The law as to the appellant court’s function should therefore be well known.  The appellate court should only intervene if satisfied that the judge or sheriff at first instance has got it plainly wrong by misdirecting himself or herself in law or failing to take into account a relevant and material factor or placing weight on an irrelevant factor or reaching a decision which is manifestly inequitable or plainly wrong.  When the appeal court is concerned with the exercise of judicial discretion it is necessary to bear in mind that on the same evidence two different minds might reach widely different decisions without either being challengeable or appealable.  The sheriff at first instance has the benefit of hearing and seeing the witnesses.  The sheriff, therefore, is in the unique position of being familiar with the evidence and the nuances which arise from the witnesses who gave evidence.

 

22.       Lord Hope considered the appellate court’s function specifically in cases involving financial provision of divorce.  He did so in Little v Little.  Having considered the structure of the legislation he has this to say at page 787:

“But despite all the detail much is still left to the discretion of the courts.  This is clear from an examination of section 8(2), which provides that the court shall make such order, if any, as is justified by the principles set out in section 9 and reasonable having regard to the resources of the parties.  The concept of sharing the net value of the matrimonial property fairly, the flexibility which is given by the expression ‘special circumstances’ in section 10(6) and the repeated references in section 11 to all the other circumstances of the case serve to emphasise that, despite the detail, the matter is essentially one of discretion, aimed at achieving a fair and practicable result in accordance with common sense.  It remains as important as it always has been that the details should be left in the hands of the court of the first instance and not opened up for reconsideration on appeal.”

 

That being so it is for the appellant to demonstrate that the sheriff was plainly wrong or misdirected herself in law or proceeded upon a misapprehension or misconstruction of the evidence.  Of course, the evaluation of the evidence is a matter primarily for the sheriff.

 

SECOND GROUND OF APPEAL

23.       The first ground of appeal having been conceded, I turn to the second ground of appeal in which the appellant seeks to argue that the sheriff erred by refusing to grant an incidental order in terms of the defender’s fifth crave - That is to award interest at the judicial rate on the capital sum from the relevant date which has been set at 17 June 2011 to the date of decree.  The interest provision from the date of decree forming ground of appeal 1 is now satisfied.  The appellant’s argument in support of this ground of appeal relates firstly to the failure on the part of the pursuer to articulate any detailed grounds of opposition.  It was the appellant’s view that in the absence of pleading a reasoned argument or authority to the contrary the sheriff had no option but to find in favour of the defender and award interest.  The appellant cited three cases in support of that contention Terry v Murray 1947 SC 10; Cadbury Brothers Limited v Thomas Maben Limited 1962 SLT (Sh Ct) 28 and United Dominions Trust v McDowall 1984 SLT (Sh Ct) 10.  Secondly, it was argued that the pursuer having retained title to both commercial properties and the income generated from the lease she enjoyed an economic advantage whereas the appellant suffered economic disadvantage and this ought to be balanced or corrected by the award of interest.  The appellant relied on Geddes v Geddes and Welsh v Welsh.

 

24.       The sheriff gives her reasons for refusing the defender’s crave for an incidental order for interest from the relevant date under section 14(3)(j) of the 1985 Act in a passage of the judgment under this heading.  She considers the authorities of Geddes and Welsh.  She evaluates the evidence of the parties’ respective income positions over the relevant period.  She is well aware that the pursuer has retained rental income amounting to approximately £61,000 together with her salary.  She considers the disbursements which the pursuer has required to make.  She considers the division of matrimonial property.  It is abundantly clear that the pursuer having title to the bulk of the heritable property requires to make a capital payment in addition to transfer of the office.  The legislation requires the sheriff to look at both the justification for and reasonableness of the award.

 

25.       The appellant’s claim for interest from the relevant date is opposed.  Whether opposed or not the sheriff requires to consider not only the justification in terms of the principles but also whether it is reasonable in terms of the parties’ respective resources.  The sheriff is not obliged to make any award at all opposed or unopposed.  The authorities cited by the appellant are of no assistance in the circumstances of the present case.  They are undefended causes.  In this case the sheriff requires to undertake a balancing exercise and is not obliged to make any incidental order unless she considers that the dual test under section 8(2) of the Act is met.

 

26.       The appellant’s argument that the pursuer had “already conceded the question of resources” is a curious argument.  The sheriff is obliged to consider the question of the parties’ respective resources before considering any order or award in terms of the 1985 Act.  Any incidental order for interest in terms of section 14 is an integral part of an order for financial provision in terms of section 8.  This much is clear from the decision of Lord President Hope in Geddes v Geddes.  The sheriff gave consideration to the appellant’s application for an incidental order and refused it.  She gives reasons for so doing.  These are based upon the resources of the parties including not only the income of the respective parties but also their employability.  She considers the manner in which the pursuer had used the rental income including disbursements in connection with the lease, mortgage payments and payments in respect of the children’s tertiary education.  The evidence as to resources comes from the joint minute and from the oral evidence of the parties.  In considering the resources of the parties the sheriff is looking at the actual income and expenditure.  She is not looking at the economic disadvantage argument made under section 9(1)(b ) on behalf of the pursuer which she specifically rejected.  The second 9(1)(b) argument considers future liability and in that connection the sheriff noted that there was no evidence to support the figure of £40,000 suggested by the pursuer as future liability for University fees.  There was no evidence as to how much longer the parties’ daughters would remain at University.  That is quite a distinct and distinguishable consideration from the exercise she is conducting with regard to interest which is intended to supply recompense or balance for past imbalance.

 

27.       The appellant criticises the conclusions which the sheriff draws from the evidence relating to the parties’ current and future resources.  He takes issue with the sheriff’s comment at page 30 of the judgment relating to the appellant’s capital position and earning potential post decree.  The appellant argues that there is no evidence as to what the appellant might do with the capital payment or that he could set up in business on his own (presumably as a solicitor) and takes issue with the assertion that “he is well qualified as a solicitor to work in many areas”.  In my opinion, the appellant’s criticisms of the sheriff are disingenuous.  The comments reflect the evidence and the facts as the sheriff finds them.  The sheriff is entitled to comment that a capital payment is available to any party to invest either for income or for the furtherance of a professional career.  It is entirely proper for the sheriff to make these observations given the facts.  There is no evidence to the effect that the appellant is incapable of pursuing his profession.  The findings in fact which support her reasoning can be found at Findings 17, 18 and 19.

 

28.       The decision in Geddes v Geddes and indeed Welsh v Welsh make it clear that the decision whether to award interest and from what date is a matter which lies in the discretion of the court.  The sheriff has declined to exercise her discretion in favour of an award of interest from the relevant date.  The court is not obliged to make any back-dating award of interest on any application opposed or unopposed.  It is a matter largely for the sheriff who has considered the resources of the parties as she is entitled and indeed, obliged to do.  She has come to a decision that the resources of the parties point away from making a further award of interest to the defender.  This is to be balanced with the sheriff’s finding that the defender is entitled to an unequal division in his favour.  The overall approach to financial provision is to achieve a fair and practical result.  I therefore detect no error on the part of the sheriff in the exercise of her discretion.  She has considered the matter and she has applied her mind to the matter of interest and has declined to make the order sought by the appellant.  The appeal on this ground falls to be refused.

 

THIRD GROUND OF APPEAL

29.       The appellant argues that the sheriff erred in refusing to grant an incidental order in terms of the appellant’s sixth crave requiring the pursuer to repay the overdraft accruing on the parties’ joint account.  Again the appellant relies on a lack of substantial opposition on the part of the pursuer either in submissions or in pleadings.  The appellant suggests again that the sheriff was not entitled to have regard to the resources of the parties.  The appellant argues that the refusal of this incidental order renders the sheriff’s decision manifestly unjust towards the appellant.

 

30.       In my view, the same considerations apply with regard to the incidental order sought in terms of the sixth crave as applied to the previous ground of appeal.  It is worthwhile to note that the sixth crave is a general crave to give effect to the principles contained in section 9 or to any order made under section 8 of the Act.  The sixth crave does not specify the incidental orders sought.  The pleadings insofar as they can readily be deciphered do not specifically support an incidental order in respect of the overdraft.  The overdraft is mentioned by way of explanation at the end of Answer 4.  Neither party appears to have any plea in law directed towards the appellant’s sixth crave.  The fifth plea in law for the defender bears to relate to the sixth crave but, in fact, relates to the obligation to aliment and there is no plea in law supporting the sixth crave.

 

31.       The sheriff gives brief reasons for declining to make an incidental order in respect of the Royal Bank account subject to the overdraft.  Again the sheriff has given consideration to the resources of the pursuer before deciding whether to require her to clear the overdraft.  The sheriff has to have regard to the overall division of matrimonial property.  It is necessary for the sheriff to do so in order to fulfil her function in terms of the 1985 Act.  The sheriff requires to have regard to the division of matrimonial property which she will put into effect in granting decree for an unequal division of the capital assets.  The sheriff takes account of the respective resources of the parties as previously noted in Findings in Fact 17, 18 and 19.  The sheriff’s consideration of this incidental order follows her decision on the division of the matrimonial property.  The sheriff’s emphasis on the resources of the pursuer as the party who would have to pay off the overdraft leads the sheriff to take the view that it would not be reasonable to make the order.  Having regard to the context in which the sheriff makes this decision I cannot detect any material error which would vitiate her decision.  The sheriff’s reference to the resources of the pursuer does not mean that the sheriff has failed to give weight to the overall matrimonial assets and resources of both parties.  Accordingly, this ground of appeal also fails.

 

FOURTH GROUND OF APPEAL – CAPITAL GAINS TAX

32.       The object of the 1985 Act is to achieve a fair and practicable result in the sharing of matrimonial property in accordance with common sense.  When the sheriff required to undertake the exercise of considering “special circumstances”, the pursuer had agreed that the office at St John’s Road would be transferred to the appellant.  That is the context.  The amount of capital gains tax payable to HMRC on any transfer was likewise agreed in the joint minute.  An unusual factor in this case is that the pursuer’s title to the preponderance of the heritable property was directly as a result of the appellant requiring that to be so for tax or business reasons (Finding in Fact 15).  He wished to avoid the risk of the heritable property being subject to any diligence.  He wished to protect these assets in other words.  There is no suggestion that the pursuer arranged that she would take title.  The appellant seeks transfer of the pursuer’s title to the office and, indeed, to the shop.  That involves a “disposal” whether achieved voluntarily or by order of the court.  That gives rise to capital gains tax liability potentially.  That is reflected in the joint minute and the amount of the contingent capital gains tax agreed.

 

33.       The pleadings are far from easy to read far less understand.  The craves appear to be wrongly numbered or otherwise do not match the pleas in law which are there to support them.  The articles of condescendence and answers thereto do not follow sequentially.  There is no specific plea in law for the pursuer in respect of “special circumstances” in terms of section 10 of the 1985 Act.  Nevertheless section 10(6) states that special circumstances may include…(e) the actual or prospective liability for any expenses of valuation or transfer of property in connection with the divorce.  Accordingly, if it is clear that the sharing of the matrimonial property involves giving effect to a property transfer then it is only proper that the court have regard to the factors which have a bearing on that matrimonial property and the fair sharing of that property.  CGT on transfer is such a factor.

 

34.       In these circumstances it is difficult to accept the appellant’s contention that it was manifestly inequitable for the sheriff to take account of the CGT at all.  Standing the terms of section 10(6)(e) I cannot agree that the CGT component in W v W 2013 CSOH 136 became “special” simply due to the liability being transferred from one party to another.  What, in fact, was transferred was property in the form of shares which would just as easily fall within the same provision (section 10(6)(a)).

 

35.       To put the matter in another way, standing the agreement that the heritable property at St John’s Road was to be transferred from the pursuer to the appellant and given the agreement about that and the prospective CGT liability, the sheriff required to have regard to that fact in her assessment of the fair sharing.  The effect of the sheriff’s decision did not result in the CGT figure being deducted from the appellant’s share of capital.  It should properly be seen as being taken into account in assessing the equitable division of the matrimonial property.  The sheriff’s decision on CGT fell within her discretion.  The appellant has not established that the sheriff was plainly wrong and this ground of appeal falls to be refused also.

 

FIFTH GROUND OF APPEAL – DESTRUCTION, DISSIPATION OR ALIENATION OF DEFENDER’S PROPERTY BY THE PURSUER

 

36.       The appellant argues that the sheriff clearly erred in refusing to find that special circumstances exist in terms of section 10(6)(c) of the 1985 Act in respect of the destruction, dissipation or alienation of the defender’s clothing, camera and other equipment and belongings.  Thereby she has refused to take fair account of such in the division of the matrimonial property.  The appellant relies significantly on the fact that he was not cross-examined on his own valuation of the property.  The appellant has produced a schedule which values clothing, camera and golf equipment in excess of £30,000.  This has been lodged as a production (6/5/21 of process).  The figures are based on the appellant’s information and opinion as to their replacement value.  In his submissions the appellant relies on Stewart v Glasgow Corporation 1958 SC 28 and the dicta of Lord Russell:-

“it seems to me that, where a witness in chief has deponed to (a), (b) and (c) and he is challenged and questioned in cross-examination on (a) and (b) but not on (c), the proper inference is that quoad (c) he is to be accepted.”

 

Reference was also made to Walker v McGruther & Marshall Limited 1982 SLT 345;  Keenan v The Scottish Wholesale Co-operative Society Limited 1914 SC 959;  Currie v Clamp’s Executor 2002 SLT 196 and Beasley v Fife Health Board 2001 GWD 32-1300.  According to the appellant as no corroboration is required the court was bound to accept the appellant’s evidence as to the value of the missing property and to take that into account as a special circumstance.

 

37.       The sheriff deals with the missing clothing and other belongings at Finding in Fact 23.  That is in the following terms:-

“23.   It is not known what happened to the defender’s clothes, camera equipment, golf clubs, dyson vacuum cleaner, Honda rotivator, various tools and a writing desk.  It is not known what condition these items were in or the valuation at the relevant date.”

 

38.       In my view this ground of appeal is simply misconceived.  The appellant has not proved what happened to the items far less their value.  The list contains both specific and inspecific categories.  There is an unspecified category of clothing amounting to £3,000. (Misc shirts, ties, shoes and casual clothing).

 

39.       Stewart v Glasgow Corporation is simply not in point here.  The significance or otherwise of cross-examination is irrelevant where the onus lies on the party claiming that specific items of property have been destroyed or dissipated and the value that should be placed on such items.  The appellant places before the court the averment that his property was “destroyed, dissipated or alienated” by his wife.  The sheriff is simply not satisfied as to what happened to these items, far less their value.  She is not satisfied about their value due to the complete lack of vouching.  Calls had been made on the appellant with regard to vouching but these have not been answered.  Oral evidence is not sufficient.  Even if the receipts are not available there was a complete lack of other documentary evidence which would assist with regard to what the replacement value might be against which the court could take into account the age and condition of the item or item of clothing and come to assess what a reasonable value might be.  Accordingly, the difficulty for the appellant is satisfying the court about what had happened to the property.  He did not get off first base about that and his unchallenged evidence as to his own valuation carried no weight and was of little effect.

 

40.       In my opinion, this ground of appeal proceeds on a misunderstanding of the authorities upon which the appellant relies.  Stewart v Glasgow Corporation and the other authorities mentioned in the appellant’s submissions Walker and Keenan relate to a failure by a party on whom the onus lies to cross-examine on a material issue.  The issue was corroboration of a material fact (Stewart) and prejudice (Keenan).  In Walker Lord Stott deals with a submission by the defenders on the inference be drawn from the failure by the pursuer to cross-examine on the issue which was the de quo of that case ie who was driving?  Lord Stott repelled the submission but principally on the basis that the witness Ross was wholly unreliable.

 

41.       The point here is that the failure to cross-examine on valuation had no effect at all given that the appellant had not established what had happened to the property and that his evidence as to value was unvouched.  The appellant places the destruction, dissipation and alienation of his property in issue as a special circumstance.  The pursuer denies destroying the property.  It is for the appellant to satisfy the court as to his contention that the pursuer destroyed or otherwise got rid of the property.  The sheriff is neither satisfied as to what happened to the property nor on the valuation (FF23).  The sheriff has no material other than the appellant’s assertions on this issue.  The appellant accordingly does not get off the ground with this argument.  The sheriff is not prepared to accept the appellant’s oral testimony as to these items and their value.  This is entirely understandable.  In the absence of receipts it is reasonable to expect evidence as to the replacement cost of the item, its age, wear and tear etc before a value can be placed on these items.  The criticism of the sheriff’s decision on this matter is without foundation and I will refuse this ground of appeal.

 

SIXTH GROUND OF APPEAL – DEFERMENT OF PAYMENT OF CAPITAL SUM

 

42.       This ground of appeal is somewhat academic given that six months have elapsed and the appellant was due to receive the capital sum together with interest from the date of the decree in January of this year.  Nevertheless, the appellant challenges the competence of the sheriff’s interlocutor of 28 June 2013 insofar as it purports to appoint a hearing to fix the date for payment of the capital sum award.  It is suggested that this was not in accordance with section 12 of the 1985 Act which stipulates that an order for payment of a capital sum or transfer of property “may be made (a) on granting decree of divorce or (b) within such period as the court on granting the decree may specify”.  Sub-section 2 provides that the court, “on making an order referred to in sub-section (1) above, may stipulate that it shall come into effect at a specified future date”.

 

43.       It is suggested that this power cannot be exercised ex proprio motu.

 

44.       Lord Tyre in W v W at the conclusion of his opinion refers to the fixing of a by order hearing to discuss inter alia the timing of the transfer of property and also the date for payment of the first instalment of capital together with interest.  This was done with the agreement of parties.  Nevertheless, it is consonant with the power invested in the court by section 12 of the 1985 Act and it falls squarely within the judge or sheriff’s power.  It is abundantly clear from the schedule of matrimonial property that the capital sum due to the appellant could only be satisfied once the pursuer realised heritable property.  It is obvious and equitable to permit consideration to be given as to how that may be effected and in what timescale.  The sheriff’s decision firstly to consider a period of deferral and then to settle on six months was plainly well within the limits of her discretion and her statutory powers.  She had material on which she selected that figure – the surveyor’s evidence.  It appears that the period selected (six months) has been entirely appropriate given the anticipated settlement of the sale of the former matrimonial home in January 2014.  This ground of appeal is not only academic it is without merit.

 

EXPENSES

45.       I now turn to consider the remaining grounds of appeal (7, 8, 9 and 10) which relate to the sheriff’s decision on expenses and sanction for junior counsel.  The sheriff’s interlocutor on expenses and other ancillary motions is dated 7 August 2013.  She sets out the submissions and her reasons in the note attached.

 

46.       Following the issue of the sheriff’s judgment on the merits the cause was continued to a hearing on expenses which took place on 26 July 2013.  The appellant’s counsel sought firstly, an award of expenses against the pursuer for the whole of the action, which failing from 14 December 2012 and failing that the expenses of the proof.  The sheriff awarded expenses to the appellant from 14 December 2012 onwards following a concession by the solicitor for the pursuer.  She decided that each party should bear their own expenses in respect of the procedure prior to December 2012 unless otherwise dealt with.  The sheriff refused to sanction the employment of junior counsel for the proof;  refused the appellant’s motion for an uplift or additional fee in terms of Schedule 1, Regulation 5(b) of the Act of Sederunt (Fees of Solicitors in the Sheriff Court) 1993.  It is recorded in the sheriff’s judgment that the appellant’s motion to have expenses awarded on the agent and client, client paying scale was made as an alternative to the motion for an additional fee but in any event was refused.  The appellant appeals these decisions on expenses with the exception of the decision to award expenses in his favour from 14 December 2012 albeit he has a ground of appeal maintaining his insistence that the appropriate scale is the agent/client scale.  The appellant’s grounds of appeal in respect of these aspects of expenses are Grounds 7 to 10 inclusive.

 

47.       Ground 7 – The appellant argues that the sheriff erred in deciding that each party should bear their own expenses from the commencement of the divorce action up to 14 December 2012 from which point the appellant was awarded the expenses of process.  The appellant submits that the sheriff applied her mind to the wrong test by stating “There is nothing unusual or different about this period of the case”.  In so stating she applied the wrong test and fell into error.  She failed to consider the conduct of the action and which party had been successful.  The appellant having been successful in his financial craves and having been obliged to answer the irrelevant and scandalous averments advanced by the pursuer is entitled to an award of expenses against the pursuer for the whole of the action.

 

48.       Ground 8 – The appellant argues that the sheriff erred in refusing sanction for junior counsel at the proof and at the subsequent hearing for expenses.  The sheriff applied an incorrect test when she referred to the case lacking complexity or requiring other unusual forensic skill such that a solicitor of reasonable competence practising in the sheriff courts in matrimonial matters could have undertaken the case.  She ought to have applied the test set out in Macphail 12.25 and looked at the matter from the point of view of the difficulty, complexity, importance or value of the claim.

 

49.       Ground 9 – The appellant argues that the sheriff erred in refusing to award expenses to the appellant on the agent and client scale (client paying).  The sheriff was wrong to consider the punitive component of awarding expenses on this scale from the point of view of the pursuer alone.  The appellant’s submissions made reference to the judgment of Lord Hodge in McKie v The Scottish Ministers 2006 SC 528 and in particular the passage at paragraph 3 where Lord Hodge sets out the court’s approach to the scale on which expenses are awarded by the court.  I was also referred to the decision of Lord Woolman in Tods Murray v Arakin 2013 CSOH 134;  the decision of Lady Stacey in Scottish Ministers v Stirton & Anderson 2012 CSOH 166 together with the authorities referred to in these cases.  It is the appellant’s submission that the conduct of the pursuer in this action is such that it can be said that “the litigation has been conducted incompetently or unreasonably and thereby caused the other party unnecessary expense”. (quoting from Lord Hodge’s decision in McKie).  It is the appellant’s position that the sheriff clearly erred in not awarding expenses on the agent/client, client paying scale and failed to take account of the relevant and material points in counsel’s submissions.  The decision was manifestly unreasonable in the circumstances of the case.  He submitted that this case is the (appellant’s emphasis) prime example where the agent/client scale of expenses is appropriate in a matrimonial action.

 

50.       Ground 10 – additional fee.  After pointing out that it was competent for the court to consider and make an award of expenses on the agent/client scale (client paying) and award an uplift on fees or additional fee at the same time, the appellant argued in this case that the sheriff erred in not awarding an uplift to the appellant and failed to take account of the matters enumerated in Schedule 1 Regulation 5(b)(i), (v), (vi), (vii) these being the complexity of the cause (or the number or difficulty or novelty of the questions raised);  the importance of the cause or the subject matter of it to the client;  the amount or value of money or property involved in the cause;  and the steps taken with a view to settling the cause, limiting the matters in dispute or limiting the scope of any hearing.  In particular the sheriff was wrong to disregard the fifth category – (f) - importance of the cause to the client by making the trite statement “every case is of importance to a client”.  Securing a fair sharing of the matrimonial property was critical to the appellant’s future financial security.  The appellant argued that the value of the property made it noteworthy and high value for the sheriff court.  The appellant argued that the case was unusual because over 80% of the matrimonial property was held by one party and that party was not engaging in discussions with a view to achieving a fair sharing of the property.  The appellant renewed his submission that the additional fee or uplift should be in the range of 50% to 100%.

 

51.       Ms Innes, for the respondent, in reply stressed the discretionary nature of the sheriff’s function with regard to expenses.  Applying Little v Little and Sweeney v Sweeney the sheriff properly discriminated between the earlier stages of proceedings and the preparation for proof and conduct of the proof post 14 December 2012.  It was within the sheriff’s discretion to discriminate in this manner.  Likewise the sheriff having heard the evidence is best placed to deal with the application for sanction of counsel and the additional fee.  She was best placed to judge the circumstances of the action and the difficulty, complexity, importance and value of the case.  Finally, in considering the appellant’s application to have expenses awarded on the agent/client scale the sheriff was correct to note that this was a punitive sanction and one which she should only consider if the litigation had been incompetently or unreasonably conducted.  Again, the sheriff is best placed to exercise her discretion on the basis of the evidence she heard at proof.  The points of appeal relating to expenses should be refused.

 

DECISION

52.       The starting point is to emphasise the discretionary nature of the sheriff’s function with regard to expenses particularly following proof.  The sheriff or judge at first instance is best placed to deal with the subtleties of the evidence and the issues and is therefore best suited to exercise discretion appropriately.  The sheriff at first instance is close to the pleadings, the evidence and the manner in which the case has been conducted.  On the other hand, the appeal court is dealing with discreet points of law in a telescopic fashion far removed from the heat of battle.  Accordingly, the appeal court will not intervene on the issue of expenses unless there is a clear error or failure to properly exercise discretion at all.  These will be exceptional cases.  If authority is required to emphasise this it comes from Lord President Hope in Little v Little which is a decision of particular importance in cases of divorce and financial provision on divorce.  The Lord President emphasises the discretionary nature of the judge or sheriff’s function with regard to expenses in the following passage at page 790 to which I was referred:-

“I do not think that the Lord Ordinary’s decision on this matter should be disturbed.  The question of expense was pre-eminently one for the exercise of his discretion.  That is the effect of section 22 which abolished the previous rule.  That being so we would only be entitled to interfere with the Lord Ordinary’s decision on this matter if what he did was plainly wrong.  The error was said to lie in the failure to apply the normal principle that expenses should follow success.  But that is not a principle that can be applied in its full rigour to cases of this type and it may be quite inappropriate to adopt it in a case where much trouble has been taken to achieve a fair division of the matrimonial property between the parties with the full co-operation of both sides.  There is much to be said, therefore, for the view that the Lord Ordinary has taken that the parties conduct rather than the result itself should be the principal criterion upon which to proceed.  The whole matter is bound up intimately with the division of the matrimonial property itself and the effect of that division on the resources of the parties.”

 

53.       It is not difficult to understand why it is often inappropriate to apply the rule of expenses following success strictly in matrimonial proceedings.  Success is more difficult to assess in such proceedings which can be complicated due to the court requiring to deal with the unhappy aftermath or fallout from a once happy marriage or other intimate relationship.  Assessment of success is rarely easy.  A broad assessment of success and conduct requires to be made when the expenses of the cause are at issue.  It is not unusual for the bitterness surrounding the failure of a marriage to contaminate the more objective and commercial aspects of a divorce action namely the financial issues.  Nevertheless it is not appropriate to view this as a commercial proceeding.  When a marriage breaks up there is of necessity a requirement to deal with the question of the continuing status of the married couple and their matrimonial property.  In the absence of agreement it is necessary to raise ordinary proceedings to achieve divorce.  In other words, there are costs associated with the matter of status and the fair sharing of matrimonial property.

 

54.       The sheriff, in my view, correctly states that there is nothing particularly complex about the financial craves in this case.  It is correct to say that it is unusual for the lion’s share of the matrimonial property to be in the name of the wife but any complications following from that are more apparent than real.  The property is in the name of the wife because the appellant chose to transfer title to the heritable property into the wife’s name for reasons associated with his own business or fiscal affairs.  That may make matters more problematic for him in the event of the marriage failing but I cannot say that it makes the case complex or difficult standing the fact that the valuations of the properties were in the main agreed and the valuation of the former matrimonial home was not a significantly contentious issue.  It is an issue which the sheriff deals with in a short sentence.

 

55.       In assessing the question of expenses from the period of the raising of proceedings until 14 December 2012, at which point the appellant had made very meaningful settlement proposals, the sheriff has noted the unremarkable progress of proceedings including a period when the cause was sisted on the appellant’s motion (for legal aid).  It is noted that there were several issues between the parties one of which was the relevant date.  The date the appellant contended for was some two years prior to the pursuer’s – quite a gulf.  Clearly, the relevant date has an impact both with regard to the craves for divorce and also the valuation of matrimonial property.  The appellant only conceded and accepted the pursuer’s date shortly prior to proof and after 14 December 2012.  There is nothing in the period leading up to December 2012 which would warrant the sheriff marking the pursuer’s conduct by awarding expenses against her.  When proceedings were raised it is only the pursuer who had a ground of action and she was entitled to exercise her right to apply to the court for divorce based on the appellant’s adultery.  The sheriff has made a finding in fact with regard to that ground of action.  In my view, this ground of appeal is unarguable.  The sheriff was perfectly entitled to reach the decision she did.  The appellant has been awarded expenses of what I call the business end of proceedings.  Preparation for and the conduct of a proof are by far the most expensive stages in any litigation.  The award of expenses to the appellant for this period followed a concession by the pursuer’s solicitor but nevertheless an assessment of success would have favoured the appellant.  The sheriff approached the matter of expenses very much in line with the authorities – Adams v Adams (No 2) 1997 SLT 150 and Sweeney v Sweeney (No 3).  In Adams Lord Gill in effect took a similar approach to that which the sheriff has adopted and awarded the expenses of the proof to the husband having asked the decisive question why the parties had to go to proof at all.  He decided that there should be no expenses due to or by either party in respect of the earlier part of the proof.  In the current case the sheriff has asked the decisive question about the proof and the proof expenses have been awarded against the wife.  The sheriff’s decision falls squarely within her discretion and this ground of appeal must be refused.

 

56.       An award of expenses against a party on an agent/client scale (client paying) allows charging of fees in the account of expenses considerably greater than the normal or party/party scale which in effect involves reasonable expenses for the conduct of proceedings.  The difference is significant and the authorities make clear that the award of expenses on an agent/client scale is a punitive measure designed to reflect conduct of the litigation which is incompetent or unreasonable causing the other party unnecessary expense.  It is clear that the court comes under no obligation to award expenses on the higher scale even if the conduct has been unreasonable.  It is important to note that in McKie Lord Hodge stressed that when considering reasonableness the court may take into account all relevant circumstances.  There is no question of delay in this case.  The appellant complains that the pursuer’s pleadings contain scandalous averments relating to his behaviour and probity.  In my view, the averments have to be seen through the prism of a bitter separation caused by the appellant’s adultery.  This much is clear from the findings in fact.  The sheriff also makes findings in fact with regard to the appellant’s dismissal from his previous employment as a solicitor.  These are matters of fact.  The appellant argues that his reputation has been impugned by the pursuer.  He therefore required to mount a robust defence and is entitled to have these scandalous and irrelevant averments marked by a punitive award of expenses.  In my opinion, the appellant has chosen to exaggerate the import and effect of the averments.  The pursuer avers matters which can be characterised as conduct on the part of the appellant which is controlling:-  physically, mentally and financially.  That is what the averments amount to.  In the main the averments are not relevant to the issue of financial orders albeit the appellant’s decisions with regard to the heritable property do have a bearing and they constitute the reason why the majority of the matrimonial property ended up in the hands of the pursuer.  The sheriff has some comments to make about the conduct of both parties.  The sheriff has made findings in fact based on the pursuer’s averments.

 

57.       In my view, this ground of appeal must fail.  The appellant refers me to no authority which supports a punitive award of expenses in matrimonial proceedings.  He does, however, refer to certain other cases including Tods Murray v Arakin and Scottish Ministers v Stirton & Anderson.   One would have to look very far to find a case as extreme as Tods Murray v Arakin.  Lord Woolman’s opinion on expenses has been cited.  Lord Woolman refers to his previous two opinions.  To begin to obtain a flavour of the conduct of that litigation it is necessary to look at all three opinions.  That case involved a 17 year litigation where there was no substantive defence at all.  The conduct in that case comes close to litigation terrorism where the defender had made extravagant and vindictive allegations when defending straightforward proceedings by solicitors for payment of fees.  That case is far removed from the circumstances of the current action.  Likewise the case of Scottish Ministers v Stirton & Anderson is of no particular assistance in this divorce.

 

58.       In this case the pursuer unwisely chose to proceed to proof.  She ought to have known or ought to have been advised that she would inevitably fail as a fair sharing of the matrimonial property would result in a payment of capital or a transfer of property to the appellant.  She has in the main failed, although not totally.  She must accept the consequences and that is an adverse award of the expenses of the proof and the subsequent hearing on expenses on the normal basis which is party/party scale.  This ground of appeal has to be considered against that background.  The averments cannot be regarded as scandalous “ad hominem” averments in the context of the matrimonial breakdown and standing the findings in fact.  Again, I take the view that this ground of appeal is unarguable.  To say that the sheriff so clearly erred in not awarding expenses on the higher scale misunderstands the law and the discretionary nature of the sheriff’s decision.  To award expenses on the punitive scale is an exceptional measure which the court may consider if the sheriff accepts that the litigation has been conducted unreasonably and incompetently.  Firstly, the sheriff does not accept that the litigation has been incompetently or unreasonably conducted and even if she had she comes under no obligation to mark that conduct by way of the higher scale of expense.  She may do but is not obliged to.  This ground of appeal fails.

 

59.       There are certain parallels between the remaining grounds of appeal namely the sheriff’s failure to sanction the employment of junior counsel for the proof and her failure to grant an uplift in fees in terms of the Act of Sederunt of (Fees of Solicitors in the Sheriff Court) 1993.

 

60.       The test for sanction of counsel is whether the employment of counsel is appropriate by reason of circumstances, difficulty, complexity, or the importance or value of the claim.

 

61.       The sheriff has given her reasons.  Evidence was heard over two and half days.  There was a further day for submissions.  Evidence came mainly from the parties.  There was evidence from surveyors also.  Beyond that there was no other evidence.  It seems clear that the pursuer, in particular, was affected significantly by the breakdown of the marriage.  The pursuer’s case on record is both untidy and at parts irrelevant.  She pursued it and has taken the consequences on expenses.  The sheriff looked at the test from the point of view of the conduct of the proof and the nature and value of the matrimonial property.  There was nothing complicated about the case.  There was nothing per se which justified the sanction of counsel.  The sheriff expressed her view in this manner “I have concluded that the proof and the hearing were such that a solicitor of reasonable competence practising in the sheriff courts in matrimonial matters could have undertaken them and thus I have refused to sanction the appearance of junior counsel.”  This does not in my view, disclose that the sheriff failed to apply the correct test.  She has considered the difficulty or complexity of the cause and has rejected the motion for sanction.  I see no material error which would vitiate her decision.

 

62.       Likewise, on the question of the additional fee, the sheriff rejected the motion for uplift on each of the pillars suggested.  She has considered the complexity of the cause and did not conclude there was any complexity.  There was nothing unusual about the importance of the cause or the amount or value of the money or property involved.  With regard to the steps taken with a view to settling the cause the sheriff properly considered the dicta of Lord Osborne in Whittome v Whittome.  On the other hand, the steps taken by the appellant to settle the matter had been reflected not only in the award of expenses against the pursuer but also with regard to the date from which these expenses have been awarded.  The court and indeed the pursuer have accepted the steps taken by the appellant to settle and this is reflected in the award of expenses.  The sheriff clearly considered this matter and has not been persuaded that there are reasons for awarding an uplift in fees.  Again this is a discretionary matter for the sheriff and falls to be refused.

 

63.       Before I conclude I should mention that the appellant has referred to the proposition that a £1m claim is high value for the sheriff court.  He also refers to certain parts of Sheriff Principal Taylor’s report on the review of expenses and funding of civil litigation in Scotland.  Firstly, it is important to recognise that in civil matters the sheriff court has concurrent jurisdiction with the Court of Session above £5,000.  In other words it has unlimited jurisdiction in respect of pecuniary craves.  The suggestion that a £1m value, especially in the context of heritable property, is remarkable for the sheriff court is completely without foundation.  The value per se does not add to the difficulty or complexity and in the circumstances of this case the valuation was essentially agreed and it then became a matter of arithmetic.  The value of any cause per se does not entitle a party to an additional fee or sanction for counsel.  The court will look at each case and the facts and circumstances of each case individually.  The sheriff has a unique insight having heard the parties and their agents over several days and she is best placed to deal with the nuances surrounding expenses.

 

64.       The appellant’s reference to the Taylor report at paragraphs 229 to 231 of the submissions is difficult to understand.  The data to which he refers relates to personal injury litigation in the Court of Session.  It is now somewhat notorious that personal injury litigation is conducted in low value cases in the Court of Session.  The privative limit of the Sheriff Court is now so out of date that it is exceedingly low.  The court reform bill currently progressing through Parliament is designed to address that and a principal focus of these reforms is to place the sheriff court firmly at the centre of civil litigation in Scotland.

 

65.       I conclude by looking at the expenses of the appeal proceedings.  Apart from the appellant’s initial ground of appeal he has singularly failed to show that the sheriff has erred in any of her discretionary decisions.  The appeal as advanced on 16 January 2014 is refused.  The respondent is therefore entitled to the expenses of the appeal from the date when she conceded the matter of interest being the original ground of appeal.  Perusal of the process indicates that that date should be 2 October 2013.  The original ground of appeal had been unequivocally conceded by the end of September 2013.  The pursuer’s solicitors also conceded the expenses of the appeal as at 27 September 2013.  On 2 October 2013, in response to a request from my appeals clerk for clarification of the appellant’s intention with regard to the appeal, the appellant’s agents confirmed that they were instructed by the appellant to proceed with the appeal and that amendment to the grounds of appeal was under consideration.  The appellant’s solicitors lodged amended grounds under cover of their letter of 21 November 2013, at which point they also withdrew from acting on behalf of the appellant.  Having regard to the procedural history of the appeal I consider the pursuer and respondent should be liable for the appellant’s expenses from the lodging of the note of appeal until 1 October 2013;  thereafter the appellant will be liable to the respondent in the expenses of the appeal.

(signed) Mhairi M Stephen