2014SCKIRK51

SHERIFFDOM OF GRAMPIAN, HIGHLAND and ISLANDS AT KIRKWALL

F19/11

                                                                               JUDGMENT

by

SHERIFF PRINCIPAL DEREK C W PYLE

in causa

ELAINE GUTCHER, residing at 2 Ward’s Park, St Margaret’s Hope, Orkney KW17 2TS (Assisted Person)

Appellant

against

NEIL BUTCHER, residing at 6 The Grove, Wharncliffe Side, Sheffield S35 UEA

Respondent

Kirkwall,   23^rd September  2014

The Sheriff Principal, having resumed consideration of the cause, Amends the sheriff’s findings in fact as follows: (1) Deletes finding in fact 5 and substitutes therefor “The pursuer lived at West End with the defender from May 2007 to July 2010.”; (2) In finding in fact 7, deletes the words “From time to time” and adds the word “regularly” after the word “pursuer”; (3) In finding in fact 9, deletes the words “from time to time”; (4) In finding in fact 14, adds at the end the words “The parties thereafter separated for a time and subsequently resided together in Orkney.”; (5) In finding in fact 15, adds at the end the words “Her Form P60 in respect of her employment at a business known as The Trading Post stated her address as at Ward’s Park.”; Refuses the appeal and adheres to the sheriff’s interlocutor; Finds the appellant liable in the expenses of the appeal as an assisted person and remits an account thereof to the auditor of court to tax and to report.

Introduction

[1] In this action, the pursuer seeks a capital sum in terms of Section 28 of the Family Law (Scotland) Act 2006. The parties agreed that there should be a preliminary proof to establish whether – and for what period – they were cohabitants in terms of Section 25 of the Act. The sheriff held on the evidence that they were not cohabitants. He dismissed the action, although absolvitor would have been more appropriate – a point not taken by the respondent. The appellant appeals against that decision.

The Proceedings before the Sheriff

[2] The sheriff was faced with a difficult task at the proof. The written pleadings in the form of the Record leave much to be desired. They extend to 15 pages of tight script, but could easily have been reduced to less than half of that. The pleaders for both parties appear not to have a grasp of the fundamental rules of pleading. They both plead evidence, rather than confining themselves to making averments which they would each then seek to prove. There is a liberal and usually inappropriate use of calls upon the opponent to produce vouching. The respondent’s pleader in particular does not understand the difference between denial of the appellant’s averments and the use of the term “not known and not admitted”. And, perhaps most obviously, both pleaders are guilty of considerable repetition of the same averments of fact. All of this means that is it must have been very difficult for the sheriff in the course of the proof and in preparing his judgment accurately to assimilate the evidence he heard to what each party offered to prove.

[3] This lack of proper focus on the task in hand also extended to the selection of witnesses to be led at the proof and what those witnesses might contribute to an understanding of the relationship between the parties for the purposes of the Act. As the sheriff describes in his note to his judgment, it is plain that for him many of the witnesses were of little and sometimes of no assistance.

[4] Having said that, the sheriff has also set a number of challenges for an appellate court. Despite hearing evidence over a number of days, he makes only 16 very brief findings in fact. Doubtless, that will be in part because of the unsatisfactory nature of much of the evidence, but that cannot be the sole reason. The sheriff’s discussion of the evidence is also very brief, even after I allow for the irrelevance of some of the evidence as he describes. Before me, parties were agreed on the addition of certain findings in fact, which I have incorporated in my interlocutor. But I am still left with the impression that, whether due to a failure by the parties to adduce the available evidence or due to the sheriff not discussing the evidence in the detail one would expect, the complete picture of the nature of the relationship between the parties has not been provided. Indeed, I would have expected findings in fact on matters which, however confusingly set out, are agreed in the Record.

[5] From a technical point of view, it would be necessary for me to consider what additional findings in fact should be added to align the admitted facts on record with the sheriff’s findings. That would possibly, perhaps probably, result in a further hearing at considerable expense and delay. I do not propose to go down that route. Instead, I have sought to identify the nub of the question which I require to answer and in so doing to identify the facts which are the most significant ones. In doing so, I may amplify the sheriff’s findings, even after the agreed additions, but if I do so it is merely to provide a better narrative which, I hope, will aid understanding.

The History of the Relationship between the Parties

[6] The following are the material facts:

1. The parties first met each other in June 2003 in Sheffield. They went out together for a time, but eventually went their separate ways. However, they were reunited at some point in 2007. The exact date is not contained in the findings in fact, but on the evidence it appears to have been in May of that year. (The respondent’s pleadings state more than once that this issue is not known and not admitted – a position which probably reflects more on the technical failures of the respondent’s pleader, rather than on the respondent himself.)

2. The respondent sold his house in Sheffield and moved to Orkney sometime in 2006. In January 2007 he purchased a house known as West End, St Margaret’s Hope, Orkney.

3. The appellant at that time was the owner of her own property at 2 Ward’s Park, St Margaret’s Hope, Orkney. At all relevant times she had the financial responsibility for that property, including council tax despite her son living there. Subject to one exception, for employment and tax purposes she described the property as her home.

4. After the purchase of the West End property, the respondent set about developing it into a bed and breakfast business, which included renovations to the building itself. In doing those he was assisted by others, including the appellant. Once the business commenced, the appellant assisted the respondent in the day to day running of it, although at the same time she continued to work in various jobs elsewhere and retained for herself the income from them. The respondent had financial responsibility for the property. He was allowed a 25% discount from Council Tax over the property on the ground of his being the sole occupant. He derived an income from the business.

5. The parties had no joint financial arrangements.

6. The relationship between the parties was an intimate one. The appellant regularly stayed overnight with the respondent at the West End property. They went on holiday together and socialised together.

7. Early on in the relationship, the respondent made a proposal of marriage to the appellant but she declined it.

8. The relationship ended in July 2010.

The Sheriff’s Decision

[7] The sheriff held that the parties kept what he described as critical parts of their lives very much separate. He identified four parts, although somewhat unhelpfully refers to them as not exclusive, without explaining what the other parts he regarded as material even if less so. The four parts were:

(a) The appellant’s retention of her property and payment of council tax despite her son living there;

(b) Subject to one exception, the appellant’s description for employment purposes of her home as her own property, rather than the respondent’s;

(c) There was no joining of the parties’ financial affairs which “would be the normal course in a relationship of husband and wife”; and

(d) The appellant’s refusal of the respondent’s proposal of marriage.

[8] While the sheriff acknowledged that there was some evidence, which by implication he believed, that outside parties thought that the parties’ relationship was deeper than merely boyfriend and girlfriend, he was not satisfied that such witnesses as there were regarded the parties as husband and wife. Indeed, he considered that what others thought of the relationship was “of limited value”.

[9] He was referred to various authorities on the proper construction of “cohabitation”, but found them also to be of limited value, on the basis that they did not provide a shopping list from which one might conclude that cohabitation has been established.

Findings in Fact

[10] Counsel for the appellant moved me to make a number of changes to the findings in fact. All, bar one, were agreed. Their effect on the overall summary I have set out above is,

1. That the appellant regularly, rather than from time to time, assisted the respondent in the business;
2. That the parties socialised together and went on holiday together more than occasionally; and
3. That the respondent’s proposal of marriage was made during the first period when they went out together and not during the second period.

[11] The respondent did not agree to the first proposed change, which was not that the appellant regularly stayed overnight with the respondent at his home (finding in fact 5), but that she lived with him at her home from September 2006 to May 2007 and at his home from May 2007 to July 2010. The respondent did however agree that this was an accurate description of the relationship from May 2007 which was in any event the appellant’s position on record. Counsel for the appellant prayed in aid certain passages from the evidence:

1. That in cross-examination the respondent agreed with the proposition that he “lived” with the appellant during the above periods (Transcript of Evidence, p 321-322);
2. That in examination-in-chief the respondent said that he normally did the cooking in the house and the shopping for it (Transcript, p 280, 285 and 320);
3. That the respondent did the appellant’s ironing (Transcript, p106);
4. That the respondent made a specific statement about the relationship during cross-examination: “Q. Now, as far as you were concerned in terms of the relationship which you had, yourself and Elaine, the arrangements you had, domestic living arrangements, financial arrangements, all the arrangements you had. If you were married would those arrangements have been different as far as you were concerned? A. Probably not if we… it might have been possibly joint bank accounts or things like that, which would be quite normal for a married couple, but the living, eating, sleeping, general living, no, we were in the same house, we went out together, we had meals together, we went on holiday together. We were a couple apart from we hadn’t signed a piece of paper and we hadn’t got rings on our fingers.” (Transcript, p 333-334);
5. That the appellant assisted the respondent after he returned from hospital following an operation (Transcript, p316-317; p379);
6. That the respondent gave lifts in his car to the appellant’s son (Transcript, p313-314);
7. That the respondent twice went to the appellant’s parents’ house for Christmas (Transcript, p321)

[12] It was not clear to me that all or any of these passages related to the earlier period. And in any event it does not seem to me that anything turns on that. I have therefore allowed the amendments on the basis with which both parties are in agreement.

Decision

[13] Section 25(1)(a) of the 2006 Act provides that “cohabitant” means either member of a couple consisting of a man and woman who are (or were) living together as if they were husband and wife. Thus, it will not be sufficient to prove that the parties are merely living together; the living must have the characteristics of a married couple. But it is also true that such characteristics will change over time to reflect modern habits and ways of life. An example of that is Lord Goddard’s description in Thomas v Thomas [1948] KB 294 of cohabitation consisting of “the wife rendering housewifely duties to the husband and the husband cherishing and supporting his wife as a husband should do…”(p297) That is scarcely an accurate description of a modern marriage. In a similar vein, the fact that parties have sexual relations is much less a significant factor than it might have been in the 1940s. On the other hand, judges have to be careful not to translate their own individual experience of marriage as being the universal experience of others in that relationship. Counsel for the appellant criticised the sheriff for placing too much weight on the separate financial arrangements of the parties. In so far as the sheriff appears to have concluded that it is normal for married couples to have joint finances, I have some sympathy with that criticism. But it is important to note everything that the sheriff said about the parties’ financial arrangements. As I understand him, he was not suggesting that all of their financial affairs should be joined; his concern was that there was no joining at all and, in particular, that the appellant did not associate her own important financial affairs with the respondent’s address. Indeed, for many of them she continued to use her own property as the address of choice. One could well imagine a modern married couple keeping separate their financial affairs, but one would expect them to use the matrimonial home as the address of choice no matter that separation.

[14] The other grounds of criticism of the sheriff were:

(a) that he took too little weight of the evidence that there was in relation to the social and domestic aspects of the parties’ relationship and how they were regarded by others;

(b) that he ignored the evidence of the respondent that the parties lived together, the extent to which the appellant assisted the bed and breakfast business, that the respondent gave the appellant’s son lifts in his car, that the appellant’s car was insured at the West End address, that the respondent assisted the appellant gratuitously with renovations and other works at her property, that the respondent assisted the appellant’s family with renovations and other work for a nominal fee, that the parties socialised together including at family gatherings, that he prepared meals for them both, that they ate together, that they bought each other gifts, and their holiday arrangements;

(c) that he ignored the evidence of the appellant and the respondent in relation to the timing and reasons for the proposal and refusal of marriage and the break up and resumption of the relationship;

(d) that he ignored the evidence of witnesses other than the parties that they were perceived as a couple like any other who were serious about each other;

(e) that he ignored the evidence of the parties in relation to the respondent’s stay in hospital in Aberdeen in August 2009, his convalescence and the operation of the business at that time; and

(f) that he ignored the appellant’s evidence that the respondent did ironing for her.

[15] It is important to emphasise the role of an appellate court in an appeal from a tribunal of fact. The restricted nature of that role has been explained in the two recent decisions of the Supreme Court (McGraddie v McGraddie [2013] UKSC 58 and Henderson v Foxworth Investments Limited & Anr [2014] UKSC 41). In Foxworth, Lord Reed pointed out (at para [48]),

“An appellate court is bound, unless there is a compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration: Thomas v Thomas 1947 SC (HL) 45, 61; [1947] AC 484, 492, per Lord Simonds; see also Housan v Nikolaisen [2002] 2 SCR 235, para 72.”

In discussing the entitlement of an appellate court to overrule the decision of the court below on the ground that it is plainly wrong, Lord Reed said (at para [62]),

“The adverb ‘plainly’ does not refer to the degree of confidence felt by the appellate court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appellate court considered that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge would have reached.”

He added (at para [67]),

“It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it satisfied that his decision cannot reasonably be explained or justified.”

[16] For the purposes of the 2006 Act “cohabitation” is a question of fact. Section 25(2) provides that the court shall have regard to:

(a) the length of the period during which A and B have been living together (or lived together);

(b) the nature of the relationship during that period;

(c) the nature and extent of any financial arrangements subsisting, or which subsisted, during that period.

I do not regard these three factors as being intended to be exclusive, but instead that the court has to consider them along with all the other relevant circumstances.

[17] While I have made certain criticisms of the approach taken by the sheriff and the manner in which he has framed his judgment, I do not consider that they are of sufficient weight to entitle an appellate court to interfere with the decision he reached. It is unclear that the sheriff did indeed ignore the evidence mentioned in the grounds of appeal. Indeed, in relation to some of the grounds, the opposite is true. For example, the sheriff expressly noted that the refusal of the marriage proposal was during the first part of the relationship (para [14.d]). Moreover, he did not ignore the “evidence of witnesses other than the parties that they were perceived as a couple like any other who were serious about each other”. On the contrary, he deals with that evidence in some detail (para [4]) and concludes that it was either limited, vague, impressionistic or overstated. The ability to reach such conclusions is the province of the judge of fact. An appellate court does not have the advantage of having seen and heard the witnesses, which is why, as the authorities make clear, it will only be rarely that an appeal of a fact finding tribunal will be overruled. I accept that the respondent’s own description of the relationship (para [14] (iv) above) might be regarded as being a description of cohabitation for the purposes of the Act – or very close to it. It would have been better if the sheriff had expressly dealt with it in his note, but it is clear that he did take it into account – see para [5] 1, in which he states that the “defender conceded that the relationship outwardly would have seems [sic] little different to a marriage and might have been little different if they were married” The weight to be attached to the description was a matter for the sheriff to consider in the light of all of the evidence. I cannot criticise him for not regarding it as sufficient to tip the scales in favour of the appellant.

[18] In all the circumstances, this appeal is refused.

[19] Before leaving the matter, I should deal with one final part of the submissions by counsel for the appellant. Under reference to Gow v Grant [2012] UKSC 29, he argued that the sheriff should have approached the decision he had to make on the basis of general fairness. Couples who keep separate finances are more likely, he said, to be in situations of financial advantage or financial disadvantage, which are the very ones which the 2006 Act are intended to address. In my opinion, that submission misunderstands what the Supreme Court said. That case concerned the manner in which the compensation is calculated; it had nothing to say about the definition of “cohabitant”. (See, for example, Lord Hope of Craighead at paras [31] and [33]) In other words, to qualify for an assessment of the value of a capital sum the disadvantaged party must first prove that he or she was a cohabitant. That has nothing to do with whether it is fair or not that one party to a relationship should be awarded financial compensation – or the quantum of it - at the relationship’s end.