Scottish Sheriff Court Decisions

2014SCGLA26

SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW

F271/10

JUDGMENT

of

SHERIFF PRINCIPAL C A L SCOTT, QC

in the cause

June Wright or McGill

Pursuer

against

Grant Francis McGill

Defender

Glasgow, 15 July 2014.

The sheriff principal, having resumed consideration of the appeal, adheres to the sheriff’s interlocutor dated 16 December 2013 and refuses the appeal; finds the defender liable to the pursuer in the taxed expenses of the appeal; allows an account thereof to be given in and remits same, when lodged, to the auditor of court to tax and to report thereon.

NOTE:-

[1]        This appeal concerns an action for divorce which proceeded to proof over two separate days towards the end of 2013.  Having heard all the evidence in the case and having considered the submissions presented on behalf of each party, the sheriff made avizandum.  On 16 December 2013 he pronounced an interlocutor, inter alia, ordaining the pursuer to make a capital sum payment of £5,000 in favour of the defender.

[2]        As the sheriff records in the note appended to his interlocutor, the dispute between the parties lay in the financial provision to be made following the divorce which was uncontested.  Parties were agreed that the title to the former matrimonial home should be transferred to the pursuer but they, thereafter, joined issue as to the amount of any capital sum to be paid by the pursuer to the defender in terms of the first crave for the defender.

[3]        The note of appeal contains six grounds of appeal to which I shall refer in short course.  However, the solicitor for the defender opened his submissions by acknowledging what he described as the “wide discretion” vested in the sheriff at first instance.  The general principles upon which appellate courts are constrained to act are well established and, by way of example, are set out at paragraph 18.100 onwards within the third edition of Macphail on Sheriff Court Practice.

[4]        More recently, however, the United Kingdom Supreme Court has pronounced upon an appellate court’s ability to set aside a judgment of first instance in the cases of McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477; 2013 SLT 1212 and Henderson v Foxworth Investments Ltd & Another [2014] UKSC 41.

[5]        In the latter case, at paragraph 57 in the court’s judgment, Lord Reed stated the following:

“…the validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence.  The trial judge must of course consider all the material evidence (although, as I have explained, it need not all be discussed in his judgment).  The weight which he gives to it is however pre-eminently a matter for him, subject only to the requirement, as I shall shortly explain, that his findings be such as might reasonably be made.  An appellate court could therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge’s conclusion was rationally insupportable.”

[6]        Lord Reed also made certain additional observations from paragraph 58 onwards.  He considered that there would be value in developing some of the points made in the court’s decision in McGraddie.  For instance, where a trial judge was said to have gone “plainly wrong” in his determination of a case, Lord Reed considered the meaning of that phrase.  “There is a risk that it may be misunderstood.  The adverb ‘plainly’ does not refer to the degree of confidence felt by the appellate court that it would not have reached the conclusion as the trial judge.  It does not matter, with whatever degree of certainty, that the appellate court considers that it would have reached a different conclusion.  What matters is whether the decision under appeal is one that no reasonable judge could have reached.”

[7]        Lord Reed went on to refer to Lord Thankerton’s observations in the case of Thomas v Thomas 1947 SC (HL) 45 at 54.  (Also referred to in Macphail supra at paragraph 18.104).  At paragraph 66, he concluded that the abovementioned phrase “…can be understood as signifying that the decision of the trial judge cannot reasonably be explained or justified.”

[8]        Paragraph 67 in the Foxworth case establishes that in the absence of features such as a material error of law or the making of a critical finding of fact which has no basis in the evidence or a demonstrable misunderstanding of relevant evidence or a demonstrable failure to consider relevant evidence, an appellate court should only interfere with the findings of fact made by a trial judge if it is satisfied that his decision cannot reasonably be explained or justified.  The Supreme Court in Foxworth were of the opinion that the Extra Division had no proper basis for concluding that the Lord Ordinary had misdirected himself or had failed to give satisfactory reasons for the factual conclusions which he reached on the evidence or for concluding that he had gone plainly wrong.

[9]        In line with the opening submission as advanced by the defender’s solicitor, I consider that Lord Reed’s observations cannot be overstated when turning to consider the merits or otherwise of the present appeal.

[10]      The first ground of appeal challenges the exercise of the sheriff’s discretion in refusing to allow productions tendered on behalf of the defender as late as the morning of the proof to be lodged.  The sheriff has dealt with this matter in paragraph 1 of his supplementary note dated 8 January 2014.  In my view, no proper basis was established such as would justify interference with the sheriff’s decision to refuse the late lodging of these productions and, in any event, I understood the defender’s solicitor to accept that his first ground of appeal was virtually unstateable.  

[11]      The remaining grounds of appeal, viz. numbers 2 to 6, cite discrete aspects of the sheriff’s approach when it came to determining the quantum of the capital sum to be paid to the defender.  These various aspects were all rehearsed in the course of the submissions presented on behalf of the defender.  However, having reflected upon those submissions I am satisfied that they are devoid of merit.

[12]      The note appended to the sheriff’s interlocutor of 16 December 2013 is detailed and provides ample reasoning for the decisions taken by the sheriff insofar as they gave rise to the terms of that interlocutor.  The rationale adopted by the sheriff is supplemented in a compelling way by the note which he helpfully prepared having been alerted to the existence of the defender’s note of appeal.

[13]      Aside from all else, as the sheriff observed at paragraph [3] in his main note, there were particular features in the case which led him to conclude that fair division of the matrimonial property ought properly to be achieved by “a significantly more uneven division than would be normal.”  The sheriff then set out those features, primarily, in the remainder of paragraph [3] and in paragraph [4].

[14]      The parties to the proof had specifically joined issue in regard to the question of the capital sum payment to be made by the pursuer to the defender.  It is abundantly clear from both of the sheriff’s notes that he was alert to the issue involved; that he was also aware of the features which required to be taken into account when considering financial provision on divorce; and that those features were demonstrably taken into account in arriving at his decision.  The sheriff in question, over a number of years, has amassed a wealth of experience in cases of this nature.  Absent very compelling examples, I should be strongly disinclined to reach any of the conclusions which the defender sought to characterise in his note of appeal.  It is plain that the sheriff did not fail “to factor in the increase in equity” (ground of appeal 2 refers).  In his supplementary note, at paragraph 3, the sheriff records that there was an absence of clear evidence from either side which would have allowed him to determine with any real precision the actual value of either car or any of the home contents.  The absence of such evidence was not challenged on appeal and that, in itself, thereby vitiates any force to be attached to ground of appeal 3.

[15]      Similarly, I did not accept that ground of appeal 4 embraced a valid criticism of the sheriff’s approach when it came to consideration of the economic burden of caring for the parties’ children.  Once again, this aspect of the appeal is covered in paragraph 4 of the sheriff’s supplementary note.  The solicitor for the defender did not, to my mind, make out any argument to the effect that the sheriff had, in this regard, somehow contravened the terms of the 1985 Act and the sheriff explains at the outset of said paragraph 4 that neither side proposed or sought the analysis suggested under ground of appeal 4.  In any event, the sheriff also observes that the approach taken by him was favourable to the defender standing that the child C will never be fully independent and having regard to the court’s reservations regarding the defender’s ability to make any meaningful financial contribution in the future.

[16]      Under reference to ground of appeal 5 it was, as I understood matters, conceded that the pursuer had never stated in evidence that she could afford to pay the sum of £12,000.  Therefore this ground of appeal is of no moment.  Additionally, in relation to ground of appeal 6, recognition as to the significance of the levels of lending on offer to the pursuer is, in my view, nothing to the point.  That was also the view taken by the sheriff.  As his supplementary note indicates, he did not consider that any order which required the pursuer to increase significantly her indebtedness would be fair.  He rationalises that conclusion on page 3 of the note.  I agree with his approach entirely.  Indeed, the thrust of ground of appeal 6 is verging on the absurd.

[17]      Accordingly, for all of the foregoing reasons, the appeal falls to be refused.  However, more fundamentally and consistent with the approach desiderated by the Supreme Court in the Foxworth case, the appeal fails because, in challenging the sheriff’s approach to the evidence which he heard in the course of the proof, the defender comes nowhere near to establishing that the court’s conclusion regarding the quantum of the capital sum payment was “rationally insupportable”.  On the facts found established by the sheriff and having regard to the various issues discussed in each of the sheriff’s notes, it cannot be said that his decision regarding the capital sum payment to be made to the defender is one that no reasonable judge could have reached.  Indeed, in fairness to the solicitor for the defender, at no stage during the course of the appeal hearing did I note him to pray in aid compliance with that sort of test.  That is what he required to do to have any prospect of succeeding in this appeal.

[18]      The pursuer is entitled to the expenses occasioned by the appeal procedure.