William Lindsay V. Nicola Romaine Rattray Or Lindsay
| Jurisdiction | Scotland |
| Judge | Sheriff Principal John McInnes, QC |
| Court | Sheriff Court |
| Docket Number | F23/03 |
| Date | 05 August 2005 |
| Published date | 20 September 2005 |
SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY
F23/03
| JUDGMENT OF SHERIFF PRINCIPAL J C McINNES, QC | |
| in the cause | |
| WILLIAM LINDSAY (Assisted Person) | |
| Pursuer and Respondent | |
| against | |
| NICOLA ROMAINE RATTRAY OR LINDSAY (Assisted Person) | |
| Defender and Appellant |
Act: Mr John Speir, Advocate, instructed by Nicol Harvey & Pierce
Alt: Mr Jonathan Brown, Advocate, instructed by Messrs McAndrew & Co
STRANRAER: 5 August 2005
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; sanctions the appeal as suitable for the employment of counsel; meantime reserves the expenses of the appeal procedure.
NOTE:
Background to the appeal
- The pursuer raised an action of divorce on 23 May 2003. Defences were lodged on 26 September 2003. In these the defender disputed that her adultery had caused the marriage to break down irretrievably. She made no financial claim. The Record was closed on 12 December 2003. A proof was fixed for 11 February 2004. On that date the Sheriff allowed a Minute of Amendment for the defender to be received. In that Minute of Amendment, for the first time, the defender sought payment of a capital sum from the defender. The sum sought was just under £62,000. The Sheriff refused a motion to discharge the proof. He heard evidence on the merits of the divorce action and divorced the defender from the pursuer. The Sheriff's interlocutor of that date includes the following passage:
- In due course the Record was amended and a proof was fixed in relation to that issue for 12 November 2004. Evidence was led on that day, on one day in December and on two days in January 2005. On the last date on which evidence was led, 18 January, the Sheriff assigned 9 February as a diet of hearing on the evidence. On 7 February the Sheriff considered the defender's motion (no 7/5 of process) for an extension of the period of 12 months and refused it as incompetent. The extension sought was for one month or such other period as the court might consider appropriate to allow the hearing on evidence to be completed and to allow the Sheriff to issue a written judgment. The Sheriff granted leave to appeal against his decision.
- Section 12(1)(b) of the Family Law (Scotland) Act 1985 provides that:
- On 11 February 2004 he allowed a period of 12 months from that date for the granting of an order for a capital sum. He regarded that as a final interlocutor which had not been appealed. A section 12(1)(b) order may only be made "on granting decree of divorce" when the court must specify a period within which an order under section 8(2) of the Act may be made. He regarded that statutory provision as being clear and unambiguous. The 12 month period had been a matter of agreement at the time and had been intended to provide ample time for the matter to be resolved. After setting out the various events which led up to the proof being fixed for 12 November 2004, he explained that the proof took as long as it did because there were issues such as the extent and value to be placed on a farm owned by the pursuer at the relevant date, the value of commercial woodland owned by him, the value of farm stock and implements and the value of an ice-cream manufacturing business operated by the pursuer. The pursuer and the defender operated a retail ice-cream business which required to be valued. They had debts which were disputed. As a result of various delays the hearing on the evidence was assigned for 9 February. He pointed out that it was not a practical possibility for him to make an order for a capital sum by the end of the day on 11 February following a hearing two days previously.
- The motion to extend the 12 month period was opposed as incompetent and was refused on that ground. The agent for the pursuer founded on Mackin v Mackin 1991 SLT (Sh Ct) 22 and the unreported case of Fernando v Fernando, Aberdeen Sheriff Court 25 March 1996. Both cases were decisions of Sheriffs Principal of Grampian Highland and Islands. She submitted that the period of time specified in terms of section 12(1)(b) was not sacrosanct, need not have been specified and could be extended. The contrary argument with which the Sheriff agreed was that, given the clear and unambiguous terms of section 12(1)(b), the period specified became final once it was no longer competent for it to be appealed. A Sheriff had no power to alter his own order. The Sheriff refused to follow the decisions in the cases above mentioned. An order in terms of 12(1)(b) could only be made "on granting decree of divorce". It is only within such period that an order for payment of a capital sum or transfer of property may be made. The period specified would expire at midnight on the final day of the period. If no order was made within that period it could not competently be made thereafter. The Sheriff pointed out that, if the 12 month period were to be extended, it might be prejudicial to the pursuer. However he treated the matter as one of competence rather than one calling for an exercise of his discretion.
- For a long time before the minute of amendment was lodged the pursuer had been aware from correspondence of the defender's intention to seek an order for payment of a capital sum. There had been difficulty with legal aid. As a result the claim had not been made until shortly before the proof. It had been agreed that the divorce would proceed on the day of the proof and that an order should be made in terms of section 12(1)(b) to allow her to make the claim. There had been lengthy periods for adjustment and answers which had either been of consent of on joint motion. The valuation of the farm was fundamental. Its acreage had to be established. Once the title deeds had been located an error in the acreage was found, with the result that the valuation had to be reconsidered. On the last day when evidence was led, 18 January, the understanding was that a hearing on evidence would take place on 28 January 2005. However there was a delay in extending the shorthand notes and, as a result, 9 February was fixed for the hearing on evidence. Because of the concern that no order might be made by 11 February the motion had been enrolled for an extension of the 12 month period.
- The defender had led evidence over a number of days sufficient to justify an award of over £60,000 in her view. All the evidence had been led. Only the hearing on evidence required to take place before the Sheriff reached his decision. The effect of the Sheriff's refusal of the extension was to confer a windfall benefit on the pursuer. It was maintained that there had been no failures on the part of those advising the defender. The Sheriff's decision had led to a clear injustice which ought to be reversed.
- The Sheriff had erred in law by refusing the defender's motion as incompetent. Reference was made to sections 8 and 14 of the 1985 Act. Section 8(1)(c) provided that in an action for divorce either party to the marriage may apply to the court for an incidental order within the meaning of section 14(2) of this Act. Among the incidental orders which may be made in terms of that sub-section is:
"In terms of Rule 12(1)(b) of the Family Law (Scotland) Act 1985 allows a period of 12 months from this date for the granting of an order for a capital sum;".
The Sheriff's decision
"An order under section 8(2) of this Act for payment of a capital sum or transfer of property may be made ... (b) within such period as the court on granting decree of divorce may specify."
Submissions for the appellant
"(k) Any ancillary order which is expedient to give effect to the principles set out in section 9 of this Act and to any order made under section 8(2) in this Act."
Section 8(2) provides that where an application has been made for, inter alia, an order for the payment of a capital sum the court shall make such order, if any, as is justified by the principles set out in section 9 of the Act and reasonable having regard to the resources of the parties. Section 14(1) provides that an incidental order may be made under section 8(2) of the Act before, on or after the granting of refusal of decree of divorce. The extension of time which had been sought was competent in terms of section 14(2)(k) of the Act. Reference was made to Neill v Neill 1987...
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