Julie Anne Phillips Or Zelent (ap) V. Alan Savage
| Jurisdiction | Scotland |
| Judge | Sheriff Margaret M. Neilson |
| Court | Sheriff Court |
| Docket Number | F206/09 |
| Date | 14 March 2012 |
| Published date | 14 March 2012 |
Sheriffdom of Grampian, Highland and Islands at Inverness
| Case No: F206/09 | JUDGMENT by SHERIFF MARGARET M. NEILSON in causa JULIE ANNE PHILLIPS or ZELENT (A.P.) formerly residing at c/o 135 Wakefield Road, Garforth, Leeds, LS25 1AT and now c/o 101 Wild Oak Drive, Newport, North Carolina, U.S.A. 28570 PURSUER against ALAN SAVAGE formerly residing at Beech Tree, 13 Drummond Road, Inverness and now at Westwood, Stratherrick Road, Inverness, IV2 4JY DEFENDER |
Act: Hajducki, Q.C., Kippen Campbell, Solicitors, Perth
Alt: Mitchell, Q.C., Stronachs, Solicitors, Aberdeen
INVERNESS, 14th March 2012
The Sheriff, having resumed consideration of the cause, finds the following facts admitted or proved:-
(1) The parties first met on a flight in mid June 2006. At that time the pursuer worked with the Royal Bank of Scotland ("RBS"). The defender was and still is the chairman and owner of Orion Engineering Services ("Orion").
(2) The pursuer left her job with RBS on 31st August 2006, having worked a one month period of notice, and started cohabiting with the defender in Inverness on 1st September 2006. That first period of cohabitation ended on 24th August 2007.
(3) In around mid October 2007 the pursuer contacted the defender's P.A. She wanted Orion to confirm that they would pay for the servicing of a BMW car owned by Orion which the defender had allowed the pursuer to retain following the end of the period of cohabitation in August 2007.
(4) Shortly after this initial contact through the defender's P.A. parties got in touch again and started seeing each other on an informal basis from late October 2007.
(5) The pursuer was offered a job by F.S.I. Solutions in around mid October 2007 but decided not to accept the offer. The defender was not involved in that decision.
(6) From late October 2007 until early February 2008 the pursuer ordinarily lived in her house in Houghton Regis, Bedfordshire, but would travel to meet the defender in Inverness or elsewhere most weeks. The parties also travelled abroad together on one of the defender's business trips. The pursuer was not living permanently in Inverness during this period but parties were seeing each other again, having sexual relations and were considering whether to rekindle their relationship on a more permanent basis.
(7) From around early February 2008 parties started a new period of cohabitation. They cohabited until 11th October 2008 when they separated permanently.
(8) Following the ending of the relationship the pursuer left Inverness and went to Perth to stay with a friend briefly, then to Leeds to stay with her daughter and then to New Zealand on 21st October 2008 using tickets provided by and paid for by the defender. These had previously been booked for the pursuer to accompany the defender on a business trip. The pursuer's return ticket was flexible and cost in the region of £2800. She stayed with her father in New Zealand. She applied for jobs there until 1st December 2008.
(9) In early January 2009 the pursuer returned to the U.K. on a temporary basis as she had, during December 2008, made plans to move to Washington State in the United States to be with Mr Michael McSwain. She first met Mr McSwain in the 1990s through work and had stayed in touch with him by email ever since.
(10) On 24th January 2009 the pursuer travelled to the United States to meet up with Mr McSwain.
(11) From January 2009 the pursuer was in a relationship with Mr McSwain and was living with him. She returned to the U.K. on 24th April 2009 then returned permanently to the United States on 29th May 2009. She married Mr McSwain on 17th October 2009 and remains married to him.
(12) At some stage before their marriage the pursuer and Mr McSwain moved from Washington State to North Carolina and set up home together there.
(13) While in the United States the pursuer worked as a sailing instructor at Camp Lejeune, a U.S. Marine Corps base, using her husband's boat between March 2010 and August 2011. Her husband is a former U.S. Marine who receives a Marine Corps pension and is also employed as a police officer.
(14) The pursuer is the joint-owner of the house at 101 Wild Oak Drive, Newport, North Carolina, U.S.A. 28570 with Mr McSwain. There is a bond (which is the equivalent of a U.K. mortgage) over it in their joint names.
(15) From 1st September 2006 to 6th November 2007 the pursuer was paid a package, through Orion, equal to her package with RBS.
(16) From 6th November 2007 to October 2008 the pursuer received £66,000, tax free, directly from the defender.
(17) During the relationship the pursuer received jewellery from the defender valued (conservatively) at around £25,000 which she has retained.
(18) The pursuer removed a van load of household goods from Drummond Road, Inverness when she left there in October 2008 and has retained them. She has also retained clothes bought by her during the period of cohabitation. She retained the use of a car provided and paid for by the defender following the separation until she demanded that he arrange for it to be uplifted when she moved to the United States.
Finds in Fact and Law
The pursuer having sustained no economic disadvantage in the interests of the defender and the defender having derived no economic advantage from financial or non financial contributions of the pursuer, the pursuer is not entitled to payment of a capital sum in terms of Section 28(2)(a) of the Family Law (Scotland) Act 2006
THEREFORE Repels the pursuer's first, second and third pleas in law, Sustains the defender's third plea in law, Repels the defender's first, second and fourth pleas in law as unnecessary, Grants Decree of Absolvitor and fixes a hearing on expenses.
Sheriff
NOTE
Introduction
[1] This is an action in which the pursuer seeks payment of a capital sum from the defender in terms of section 28(2)(a) of the Family Law (Scotland) Act 2006. After sundry procedure, including two debates and a number of amendments made by the pursuer, a proof before answer was fixed and evidence was led. The evidence, together with the submissions, was heard over seven days on 14th November, 5th, 6th, 7th and 8th December 2011 and 5th and 6th January 2012.
[2] To accommodate the pursuer, as one of her witnesses was not available until 6th January 2012, the court agreed to the defender's witnesses' evidence being heard before the pursuer's case was closed and the evidence led on her behalf completed.
[3] On behalf of the pursuer, evidence was led from the pursuer herself together with Mr Brian Keith, Employment Consultant, and Dr Ian Anderson, Chartered Psychologist. In addition, affidavits were lodged containing the evidence of Carrie Kirkham, the pursuer's daughter, and Robert Phillips, the pursuer's father.
[4] On behalf of the defender, evidence was led from the defender himself together with Dawn Munro, the defender's Executive Personal Assistant, Campbell Thomson, Facilities Manager at Orion and Maria Budayova, the defender's cleaner at the time in question.
[5] A joint minute was lodged, (No. 34 of process) agreeing that the reports of Dr John Pollock, Consulting Actuary, dated 1st February 2011 and 14th December 2011 (5/1/4 and 5/16), set out the evidence that the said Dr John Pollock would give on the basis of the hypotheses of fact presented to him for his opinion and that he should be certified as an expert witness. 16 Inventories of productions were lodged by the pursuer and 1 by the defender.
SUBMISSIONS
Pursuer's Submissions
[6] The pursuer's senior counsel submitted a typewritten valuation of her claim together with draft findings in fact. There were three distinct heads of economic disadvantage claimed by the pursuer, namely:
loss of income/earning capacity;
loss of pension rights; and
economic disadvantage relating to the house in Drummond Road.
[7] John Pollock's actuarial reports (5/1/4 and 5/16) set out the basis of the calculations. A statement (5/1/3) set out the pursuer's benefits she used to receive from RBS. The period from 31st August 2006 to 11th October 2008 is no longer being taken into account as the pursuer conceded on day three of her evidence that she was no longer seeking compensation for loss of earnings for that period. She also conceded that she was content for any ongoing claim for lost earnings/earning capacity to be capped as at 31st December 2011. She therefore claimed the sum of £116,800 for loss of earning capacity, income and benefits for the period 11th October 2008 until 31st December 2011.
[8] In relation to loss of pension rights, the pursuer's position was that she has suffered a loss from 31st August 2006, since when no pension contributions were made. She was prepared to make a concession to cap the ongoing loss at 31st December 2011 and therefore claims the sum of £55,000 under this head of loss.
[9] In relation to the Drummond Road property, the pursuer made certain financial contributions as outlined in condescendence 1 of £21,872.17, £843.68, £271 and £288.40 as well as non financial contributions, which benefited the defender's house which he retained. The house had been bought by the defender for £290,000. As shown in the valuation it was worth, at the date of separation, £450,000. The defender had spent £84,431.14 on renovation and improvement works which, when deducted from the value as at the date of separation showed an increase in value of the house during the cohabitation period of £75,568.86. The pursuer contributed £9,916.25 to the household goods which the defender had retained. It was argued that the pursuer is entitled to one half of the increase in value, together with a refund of her contributions of £9,916.25. Accordingly she was entitled to £47,700.25.
[10] Overall, the total claim has been reduced from the sum sued for of £500,000 to a sum of £219,500.25. Senior counsel was keen to point out that while this was less than the sum sued for, had the pursuer made no...
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