Andrew Simpson V. Jennifer Downie
| Jurisdiction | Scotland |
| Judge | Lady Clark Of Calton,Lord Osborne,Lord Emslie |
| Neutral Citation | [2012] CSIH 74 |
| Court | Court of Session |
| Published date | 03 October 2012 |
| Year | 2012 |
| Date | 03 October 2012 |
| Docket Number | XA123/11 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Emslie Lady Clark of Calton Lord Osborne | [2012] CSIH 74 XA123/11 OPINION OF THE COURT delivered by LORD EMSLIE in the Appeal by ANDREW SIMPSON Pursuer and Appellant; against JENNIFER DOWNIE Defender and Respondent: _______ |
Alt: Innes; MHD Law LLP (for Machardy, Alexander & Whyte WS)
3 October 2012
Introduction
[1] Section 28 of the Family Law (Scotland) Act 2006 provides inter alia:
"...
(2) On the application of a cohabitant (the 'applicant'), the appropriate court may, after having regard to the matters mentioned in sub-section (3) ―
(a) make an order requiring the other cohabitant ('the defender') to pay a capital sum of an amount specified in the order to the applicant; ...
(3) Those matters are ―
(a) whether (and, if so, to what extent) the defender has derived economic advantage from contributions made by the applicant; and
(b) whether (and if so, to what extent) the applicant has suffered economic disadvantage in the interests of ―
(i) the defender ...
(4) In considering whether to make an order under sub-section (2)(a), the appropriate court shall have regard to the matters mentioned in sub-sections (5) and (6).
(5) The first matter is the extent to which any economic advantage derived by the defender from contributions made by the applicant is offset by any economic disadvantage suffered by the defender in the interests of ―
(a) the applicant ...
(6) The second matter is the extent to which any economic disadvantage suffered by the applicant in the interests of ―
(a) the defender ...
is offset by any economic advantage the applicant has derived from contributions made by the defender.
...
(8) ... Subject to section 29A, any application under this section shall be made not later than one year after the day on which the cohabitants cease to cohabit.
..."
[2] Similar provisions, fenced with a six-month time-limit, appear in section 29 to cover claims where cohabitation has ceased through a party's death. Section 29A makes provision for an eight-week extension of time following the conclusion of any cross-border mediation attempt. Otherwise the periods in sections 28 and 29 are fixed, and the court is given no power to extend them in any circumstances.
[3] The pursuer and defender fall within the definition of "cohabitant[s]" contained in section 25 of the Act, in respect that, at one time, they formed a couple living together as husband and wife. It is a matter of agreement that they ceased to cohabit on 13 March 2009. Thereafter, within the one-year period stipulated in section 28(8), the pursuer applied to the sheriff at Forfar for a financial order in his favour. The defender, however, made no such application within the statutory period, and it was not until 27 April 2010 that she lodged defences incorporating a crave for financial provision on her own account.
[4] The short point raised in this appeal is whether, as the pursuer maintains, the defender's claim for financial provisions falls to be dismissed as time-barred by virtue of section 28(8) of the Act.
[5] When the case came before the sheriff at debate in November 2010 the pursuer had tabled no plea to jurisdiction, competency or time-bar, yet he was permitted to argue that the defender's claim should nevertheless be dismissed. In reply, while not objecting to the argument as such, the defender drew attention to the lack of a formal plea. The sheriff then proceeded to uphold the validity of the defender's late claim, on the basis that it formed an integral part of her defences and was relevant to the offsetting exercise envisaged in section 28(3), (5) and (6) of the Act. In the sheriff's view, both parties must be afforded an opportunity to put their pleadings in order.
[6] The pursuer duly marked an appeal to the sheriff principal who, albeit on slightly different grounds, affirmed the decision of the sheriff and remitted back to him to proceed as accords. The view taken by the sheriff principal, as expressed in his note, was that section 28(8) imposed only a procedural bar and should therefore be characterised as a limitation provision; that a plea of limitation was for the benefited party to take and might be waived; and that by failing to table a formal plea before the Record closed the pursuer must be taken to have passed from any challenge to the defender's claim on time-bar grounds. In that context, although no plea of waiver had been tabled by the defender, he refused to allow the pursuer to introduce formal time-bar pleas by way of amendment. At the same time, the sheriff principal recognised that the defender's claim was procedurally inept where, in error, applications under section 28 had been omitted from the list of family actions in the Sheriff Court Ordinary Cause Rule ("OCR") 33.1. Proceeding by way of a simple crave in defences was therefore excluded, and a counterclaim complying with OCR 19.1 should have been lodged instead.
The present appeal
[7] Before this court, the position advanced by senior counsel for the pursuer differed from that which had been unsuccessful in the court below. No longer was it contended that the defender's claim should be taken to have been extinguished by any form of prescription. On the contrary, section 28 of the Act was characterised as a free-standing, self-contained statutory innovation whereby Parliament, for the first time, allowed cohabitants to apply to the court for financial provision when their cohabitation ceased. This novel entitlement arose only where the stated conditions for its exercise were met, and of these the most important was compliance with the one-year time-limit under sub-section (8). No pre-existing substantive right was involved; only an eligibility to benefit from the court's discretion was in issue; and the straightforward answer to the present problem was that, in order to qualify under section 28, an application had to be made within the prescribed one-year statutory period. Compliance with the requirement in sub-section (8) was, in other words, an integral and imperative precondition without which there could be no statutory entitlement, and the court's jurisdiction under sub-section (2) could not competently be engaged. Section 28(8) was thus quite different in nature from provisions such as sections 6 and 17 of the Prescription and Limitation (Scotland) Act 1973, which concerned the extinction of independent substantive rights or the limitation of pre-existing rights of action. The issue arising under section 28(8) was one of strict competency, or perhaps one concerning the jurisdiction of the court to entertain a cohabitant's claim. It was not an issue of prescription, nor a fortiori of limitation, at all. Sections 28 and 29 of the Act could, moreover, be traced back to a report by the Scottish Law Commission on Family Law in 1992 (No. 135), where the imposition of fixed...
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