William Lindsay V. Nicola Romaine Rattray Or Lindsay
Jurisdiction | Scotland |
Judge | Sheriff Principal Brian A Lockhart |
Court | Sheriff Court |
Date | 17 January 2007 |
Docket Number | F23/03 |
Published date | 18 January 2007 |
F23/03
JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART | |
in the cause | |
WILLIAM LINDSAY | |
Pursuer and Respondent Assisted Person | |
against | |
NICOLA ROMAINE RATTRAY OR LINDSAY | |
Defender and Appellant Assisted Person |
Act: J Brown, Advocate, instructed by Messrs Nicol Harvey & Pierce
Alt: J Speir, Advocate, instructed by Messrs McAndrew & Co
STRANRAER: 17 January 2007
The Sheriff Principal, having resumed consideration of the cause, upholds the appeal and recalls the Sheriff's interlocutors of (i) 11 November 2005 except to the extent that the Sheriff granted decree in terms of the defender and appellant's third crave, and (ii) 30 November 2005 to the extent of finding the defender and appellant liable to the pursuer and respondent in the expenses of the cause from 12 February 2004 until the conclusion of the action as taxed; sustains plea in law 3 for the defender and appellant to the extent of granting decree against the pursuer and respondent for payment to the defender and appellant of a capital sum of £19,930.63, of which £10,036.53 is payable on the date hereof and £7,894.10 is payable on 17 January 2009; finds no expenses due to or by either party in respect of the expenses of the cause from 12 February 2004 to 30 November 2005 with the exception of (i) the amendment procedure which followed Minutes of Amendment lodged on behalf of the defender and appellant on 11 February 2004 and 8 November 2004, in respect of which finds the defender and appellant liable to the pursuer and respondent, (ii) the expenses of the first appeal which have already been determined; finds the pursuer and respondent liable to the defender and appellant in the expenses of the appeal; certifies the appeal as suitable for the employment of counsel; allows accounts of expenses, where appropriate, to be given in and remits same when lodged to the Auditor of Court to tax and to report; reserves all questions of interest and appoints parties to be heard thereon, if necessary, on a date to be hereafter assigned.
NOTE:
Background to the appeal
1. On 11 February 2004 the Sheriff granted decree of divorce in favour of the respondent and in terms of Rule 12(1)(b) of the Family Law (Scotland) Act 1985 allowed a period of twelve months for the granting of an order for a capital sum. Thereafter there was a variety of procedure and in due course evidence was heard on 12 November 2004, 10 December 2004, 17 January 2005 and 18 January 2005. On that latter date the evidence was concluded and a hearing on the evidence, when the shorthand notes would be available, was assigned for 9 February 2005.
2. On 7 February 2005 the Sheriff heard a motion 7/5 of process which was in the following terms:
"Nicol for the defender respectfully moves the court to extend the period of twelve months allowed in the Sheriff's interlocutor of 11 February 2004 for the granting of an order for a capital sum, to be extended by a period of one month or such other period as the court may consider appropriate to allow the Hearing on Evidence presently fixed for 9 February 2005 to be completed and to allow the Sheriff time thereafter to issue a written judgment." The Sheriff held that that motion to be incompetent and, ex proprio motu, granted leave to appeal. He wrote a note giving his reasons for taking that course. |
3. Section 12(1) of the Family Law (Scotland) Act 1985 provides:
"An order under section 8(2) of this Act for payment of a capital sum or transfer of property may be made - (a) on granting decree of divorce or (b) within such period as the court on granting of decree of divorce may specify." The Sheriff in his note expressed the opinion that these terms were clear and unambiguous. He stated: |
"As regards orders for payment of a capital sum or transfer of property that is reflected in the terms of section 12 ... an order in terms of section 12(1)(b) can only be pronounced at one point of time - on granting decree of divorce. ... At that point of time the court must specify a period of time. It is only "within such period" that an order "for payment of a capital sum or transfer of property may be made" ... and thus unless an order is made within that period it cannot be made at all." The Sheriff then continued: "That being my view it follows that once specified on granting decree of divorce that period cannot be re-specified on a later occasion." The Sheriff's position was effectively that, once a period was specified in terms of section 12(1)(b) of the 1985 Act, extension to a later date was not competent. He appeared to accept that the inevitable consequence in the circumstances of this case was that if there was no extension of the period the right to a capital sum would be lost. |
4. That decision was appealed to Sheriff Principal McInnes who, having heard parties, on 5 August 2005 issued the following interlocutor:
"The Sheriff Principal, having resumed consideration of the appeal, recalls the interlocutor of the Sheriff of 7 February 2005 insofar as he refused the defender's motion (no 7/5 of process) as incompetent; remits the cause to the Sheriff to hear parties on the evidence led on a date to be afterwards fixed and thereafter to issue his judgment in respect of the matters in dispute ..." The Sheriff Principal accepted the reasoning of the Sheriff that it was not competent to effect an extension of the time limit in section 12(1)(b) by means of an incidental order under section 12(2)(k) of the Act. The Sheriff Principal said at para 18 page 9: "The question essentially is whether this court can and should avoid the injustice which would occur if the Sheriff's decision is allowed to stand. It is difficult to believe that this court does not have the ability to provide a remedy where the absence of such a remedy would cause such manifest injustice. ... There is a very strong case in equity favouring a decision by this court which will allow the Sheriff to conclude the case before him by reaching a decision on the evidence already led." The Sheriff Principal referred to the case of Newman Shopfitters Ltd v M J Gleeson Group plc 2003 SLT (Sh Ct) 83 where Sheriff Principal Macphail held that the Sheriff Court had an inherent jurisdiction, derived from the very nature of the court itself rather than from any statute or rule of court. In Hall v Associated Newspapers Ltd 1979 JC1 that jurisdiction was described as: "the indispensable power which is inherent in every court to do whatever is necessary to discharge the whole of its responsibilities." Sheriff Principal Macphail quoted with approval an article by Sir Jack Jacob on Practice and Procedure in Halsbury's Laws of England volume 37 (revised 2001) para 12 to the effect that the inherent jurisdiction of the court: "has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent vexation or oppression, to do justice between the parties and to secure a fair trial between them." He noted that the Sheriff Court (Scotland) Act 1907 section 5 provided: "Nothing herein contained shall derogate from any jurisdiction powers or authority presently processed or in use to be exercised by the sheriffs of Scotland." |
5. Sheriff Principal McInnes at para 24 in his judgment in this case stated:
"I am satisfied that the statement of the law by Sheriff Principal Macphail in paragraphs 23-26 is a correct statement of the law of Scotland in relation to the inherent jurisdiction of the Sheriff and other courts. I am further satisfied that this is an appropriate case in which to invoke that inherent jurisdiction to enable the Sheriff to do justice between the parties and to reach a conclusion on the evidence which he has already heard. It seems to me that that is the only basis upon which justice can be done between the parties since I am satisfied that the Sheriff was correct to hold that section 12(1)(b) required him to specify a period and that that period could not be extended using the provisions of the Family Law (Scotland) Act 1985. I have set out above the reasons why I consider it to be equitable to recall interlocutor of the Sheriff insofar as he refused the defender's motion (7/5 of process) as incompetent. I have remitted the case to the Sheriff so that the parties may be heard on the evidence led so that he may thereafter issue a judgment." |
6. The case was then returned to the Sheriff in accordance with the Sheriff Principal's interlocutor to hear parties on the evidence and thereafter to issue a judgment in respect of the matters in dispute.
7. The Sheriff thereafter heard parties on the evidence. He issued an interlocutor and note on 11 November 2005. The Sheriff found in law:
"1. It being incompetent to grant decree ordaining the pursuer to make payment of a capital sum to the defender having regard to the provisions of the Family Law (Scotland) Act 1985 section 8(2), grants decree of absolvitor anent the defender's first crave. At page 15 of his note the Sheriff stated: "I have now heard parties on the evidence ... It is in the issue of the judgment to the extent of granting a decree, that I perceive two insurmountable obstacles which would render such a step incompetent." The Sheriff then proceeded: "Section 8(1) of the 1985 Act provides that in an action for divorce a party may apply to the court for various orders including an order for payment of a capital sum by the other party to the marriage. Section 8(2) then provides as follows: Subject to sections 12-15 of this Act where an application has been made under subsection (1) above, the court shall make such order if any as is - (a) justified by the principles set out in section 9 of this Act and (b) reasonable having regard to the resources of the... |
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