Susan Campbell Or Wilson V. John Wilson
| Jurisdiction | Scotland |
| Judge | Sheriff Principal B A Kerr |
| Court | Sheriff Court |
| Date | 21 December 2000 |
| Docket Number | FA178/00 |
| Published date | 27 December 2000 |
FA178/00
SUSAN CAMPBELL or WILSON v JOHN WILSON
Paisley, 21 December 2000 Act: Miss McCartney, for pursuer and respondent
Alt: Mr Dunn, for defender and appellant
The Sheriff Principal having heard parties' procurators on the competency of the appeal Dismisses the appeal as being incompetent; Reserves the question of expenses meantime.
NOTE:
This appeal raises the question, not yet the subject of judicial decision in this sheriffdom, whether an appeal can competently be taken without leave of the sheriff to the sheriff principal against the granting by the sheriff at an early stage in a consistorial action of an order under section 2(4)(b) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 ordaining the defender to contribute to the mortgage instalments in respect of the matrimonial home by monthly payments to be made directly to the heritable creditor. The sheriff by the same interlocutor also ordered the defender to pay sums of interim aliment weekly in advance to the pursuer and this part of his interlocutor is also sought to be appealed although it has been since 1990 established in all the sheriffdoms of Scotland that an award of interim aliment cannot competently be appealed to the sheriff principal without leave of the sheriff. There has been in the Sheriffdom of Glasgow and Strathkelvin since November 1997 a decision of the Sheriff Principal there declaring an interim order under section 2(4)(b) of the 1981 Act to be appealable without leave: the existence of that decision is mentioned by the learned authors of Macphail on Sheriff Court Practice (2nd ed) in section 18.39 of that work. The issue was contested and argued before me, leave to appeal having been neither sought from nor granted by the sheriff.
In this action of divorce (which is a good example of the standard style of divorce action in the modern manner) the pursuer has thirteen craves including a seventh for payment of interim aliment and an eighth for an order under section 2(4)(b) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 requiring the defender to make monthly payments in respect of the mortgage over the jointly owned matrimonial home, an endowment policy linked to the mortgage and the premium for the insurance of the matrimonial home. There are two children, a younger one of the marriage and an elder one accepted by the defender as a child of the family, who currently reside with the pursuer in the matrimonial home which the defender has left. The sheriff on 28 August 2000 found the pursuer entitled to interim aliment at the rate of £150 per week payable in advance and ordained the defender to pay £200 per month to the Bank of Scotland towards the cost of the mortgage on the matrimonial home, these orders being back-dated to 17 August when the sheriff had heard the motion. Against this interlocutor the defender has appealed without seeking leave on the view that the second part of the interlocutor is appealable to the sheriff principal without leave under section 27(b) of the Sheriff Courts (Scotland) Act 1907 (see Irving v Irving 1998 SCLR 373, cited in Sheriff Macphail's textbook on Sheriff Court Practice (2nd ed) at section 18.39) and that the whole of the interlocutor is thus opened up to review even although the first part would normally have required the sheriff's leave. This latter proposition is not disputed but I raised a question as to the competency without leave of an appeal against an order granted at an interim stage under section 2(4)(b) of the 1981 Act of the type here granted by the sheriff, considering it pars iudicis so to do. The matter was intimated to parties in advance of the diet of appeal and their agents have kindly prepared themselves to argue the matter of competency before me.
I was referred to a number of decisions of various sheriffs principal (concerning parties by name of Milne, Cassidy, Trolland, Rixson, Hulme and Richardson) and myself considered two more (Spencer and Lamberton) relating to the appealability of orders for interim aliment, which are relevant to an understanding of the meaning to be attached to the phrase "interim decree for payment of money" in section 27(b) of the Sheriff Courts (Scotland) Act 1907. These cases are set out for ease of reference in an appendix below. They form a series of decisions arising out of an issue debated from 1964 to 1990 until resolved by all sheriffs principal eventually following the line first adopted by the much respected Sir Allan Walker QC, Sheriff (Principal) of Lanark at Glasgow to the effect that section 27(b) should be interpreted as applying only to the second of two categories indicated by Maclaren in his textbook on Court of Session Practice at pages 1090 and 1091. The first category was there described by the learned author as "decree for the purpose of making an interim provision until the merits of the case are finally decided" while the second he describes as "an interim decree pronounced on the merits of the cause". Into...
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