Patrick Joseph Sullivan V. Mrs. Shirley Ann Mccann Sullivan (ap)
| Jurisdiction | Scotland |
| Judge | Lord Emslie |
| Date | 20 March 2003 |
| Docket Number | A3750/01 |
| Court | Court of Session |
| Published date | 21 March 2003 |
| OUTER HOUSE, COURT OF SESSION | |
| A3750/01
| OPINION OF LORD EMSLIE in the cause PATRICK JOSEPH SULLIVAN Pursuer; against MRS SHIRLEY ANN McCANN SULLIVAN (AP) Defender: ________________ |
Pursuer: Kinloch; Balfour & Manson
Defender: J.A. Brown; Aitken Nairn, W.S.
20 March 2003
[1]In this action, the pursuer seeks reduction of the undefended decree of divorce pronounced against him, along with certain ancillary orders, at Glasgow Sheriff Court on 6 March 2000. Failing reduction of that decree in its entirety, the pursuer seeks partial reduction quoad the award of periodical allowance only. On Record interdict is also sought against any move by the present defender to implement that part of the decree which relates to the transfer of the pursuer's interest in a life policy, but no interim relief was ever applied for and, for reasons which will become clear, this is no longer a live issue.
[2]The present action was raised on 27 June 2001, and after sundry procedure I heard a proof before answer on the parties' averments on 7 January 2003 and subsequent days. I then heard further submissions on behalf of the parties on 28 February 2003. In the course of the proof, I heard evidence from the pursuer and defender in person, and from three solicitors who acted for one or other of them at different times. It soon became clear that the relevant facts were, to a material extent, common ground. The pursuer, however, maintained that in the whole circumstances the legal requirements for reduction of the decree, in whole or in part, had been sufficiently met, and that I should exercise my discretion in his favour. The defender, on the other hand, contended that there were no circumstances justifying reduction of the decree, and that it should therefore not be disturbed.
[3]The pursuer and defender were married at Glasgow on 26 June 1982. There were two children of the marriage, born in 1984 and 1988 respectively. Relations between the parties deteriorated, and they eventually separated in or about November 1998. At that point, the pursuer moved south to live and work in Rugby, although he regularly travelled back to Glasgow and, for a while, remained in relatively amicable contact with the defender and the children. As regards the general sequence of events which took place between 1998 and 2001, the parties are in agreement (i) that negotiations concerning financial matters and the welfare of the children took place between them from January 1998 onwards; (ii) that in March 1999 the present defender was granted legal aid to pursue an action of divorce including financial and other craves; (iii) that such an action was eventually raised on 12 June 1999, the Initial Writ being served personally on the present pursuer by English process servers on that date; (iv) that the present pursuer and his solicitors took no steps at any stage to lodge a notice of intention to defend, or otherwise to contest the action; (v) that in about February 2000, having lost patience with lack of progress in the negotiations, the present defender's solicitors formally moved the Sheriff to pronounce decree in the action in restricted terms; (vi) that decree of divorce, with ancillary orders, was granted by the Sheriff on an undefended basis on 6 March 2000; (vii) that on or about 31 March 2000, after the appeal days had elapsed, the decree was extracted and served on the present pursuer; (viii) that although the present pursuer consulted his solicitors in Rugby shortly thereafter, and received advice that following this new development he must now instruct Scottish solicitors to act on his behalf, he did not in fact do so until 26 October 2000; and (ix) that a further eight months went by before the present action of reduction was raised at the end of June 2001.
[4]In the course of submissions at the end of the proof, counsel for the pursuer very fairly conceded that the whole of the foregoing chronology was relevant and important as part of the facts and circumstances to be considered by the court in the context of the claim for reduction. At the same time he purported to make a further concession to the effect that, by virtue of the six-month time-limit prescribed by Rule 7.5 of the Sheriff Court Ordinary Cause Rules 1993, the long delay in raising the present action had had the effect of turning what was originally a decree in absence into a final decree in foro and, as such, less readily susceptible to the remedy of reduction. However, during the further hearing on 28 February 2003, that purported concession was (in my view rightly) withdrawn because, in terms of Rule 7.1 of the 1993 Rules the application of Chapter 7 is restricted to "any cause other than an action in which the sheriff may not grant decree without evidence". To his credit, counsel for the defender did not seek to oppose the withdrawal of the concession.
[5]For the purposes of this action, the salient ancillary features of the divorce decree pronounced on 6 March 2000 were (2) an order for the transfer of the present pursuer's one-half interest in a specified life policy in favour of the present defender; (3) an award of periodical allowance of £75 per week, payable until the remarriage or death of the present defender; and (4) the award of a capital sum of £6,575 with relative interest from the date of decree. As I understand it, these were the aspects of the decree which the present pursuer really wished the court to set aside, although as already indicated his primary position was that reduction of the whole decree would be necessary to enable justice to be done between the parties. The matter of the life policy is now academic because, as the parties both accepted in evidence before me, the policy in question had in fact been cashed in prior to the decree, with the proceeds being used to pay off matrimonial debts. That part of the decree, pronounced per incuriam, was accordingly worthless to the present defender and represented no prejudice to the present pursuer. My attention was therefore exclusively directed to the awards of capital sum and periodical allowance, the present pursuer contending that on a true view of the facts and law neither award had been warranted and that this material injustice now required to be rectified. Counsel stressed that no appeal had ever been open to his client because he and his former solicitors had remained wholly unaware of the decree throughout the appeal days, and indeed until service of the extract decree was effected at the end of March 2000. Furthermore, variation of the capital award was not competent, and the award of periodical allowance could not be varied either where the Sheriff had merely proceeded on inadequate or erroneous information. In counsel's submission, therefore, reduction was the only remedy now available to the present pursuer, and there was nothing in the history of events which should persuade the Court to exercise its discretion in favour of withholding that remedy.
[6]The main issues canvassed before me were thus (i) whether, on a true view of the relevant facts and law, the financial aspects of the divorce decree should be seen as constituting a substantial injustice; and (ii) whether the conduct of the present pursuer and his solicitors in 1999 and 2000 was or was not open to serious criticism. In this context, the legal principles to be applied were, as I understood it, a matter of broad agreement between the parties, and may conveniently be summarised as follows:
(1)Reduction of the decree of an inferior court is a remedy to be exercised sparingly, and with caution, particularly where the decree is one affecting status: Adair v Colville & Sons Ltd 1926 S.C. (H.L.) 51, sp. Viscount Dunedin at 55-6; Gehlan v Saeed 1987 S.C.L.R. 668; Robertson's Exor. v Robertson 1995 S.C. 23; Leaper v Leaper 1998 S.L.T. 659.
(2)A court decree is not ordinarily susceptible to reduction where other competent remedies are available and have not been exhausted: Adair, supra.
(3)The remedy of reduction will not normally be granted to relieve a party of his own individual failures or the failures of agents for whose acts and omissions he must bear responsibility: Stewart v Lothians Construction (Edinburgh) Ltd 1972 S.L.T. notes 75; Gehlan, supra; Halliday v Pattison 1988 S.L.T. 235; Kirkwood v Glasgow District Council 1988 S.L.T. 430; Shaw v Performing Rights Society (Lord Menzies, unreported, 9 July 2002).
(4)In the case of a decree in foro, reduction may be entertained only in exceptional circumstances going beyond a mere challenge to the decree on its merits. There are no hard and fast rules as to what may constitute exceptional circumstances, each case requiring to be assessed on its own particular facts and circumstances: Adair, supra; Philp v Reid 1927 S.C. 224; Kirkwood, supra.
(5)By contrast, reduction of a decree in absence is not subject to the "exceptional circumstances" test, the Court simply having to exercise its discretion on a consideration of the whole relevant facts and circumstances. "Exceptional circumstances" will of course still be open as a ground of action, but a decree in absence may also be reduced where the Court is satisfied that, on a true view of the relevant facts and law, the decree complained of ought not to have been granted; Robertson's Exor., supra; Nunn v Nunn 1997 S.L.T. 182; Leaper, supra.
(6)For the purposes of reduction, an undefended decree of divorce falls to be classified as a decree in absence notwithstanding (i) the necessity for the Court to consider oral or affidavit evidence, and (ii) the disapplication in such cases (by Rules 7.1 and 8.1) of those Chapters of the Sheriff Court Ordinary Cause Rules 1993 which deal with decrees in absence and with the remedy of reponing. This rule has been well settled, and consistently applied, for more than a century, as illustrated by the cases of Stewart v Stewart 1863 1M. 449; Graham v Graham 1881 9R. 327; Walker v Wal...
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