BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
Scottish Court of Session Decisions |
||
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Yazdanparast v Yazdanparast [2013] ScotCS CSIH_27 (09 April 2013) URL: http://www.bailii.org/scot/cases/ScotCS/2013/2013CSIH27.html Cite as: [2013] ScotCS CSIH_27, 2013 Fam LR 44, [2013] CSIH 27, 2013 GWD 13-271 |
[New search] [Help]
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
|
|
Lady PatonLady SmithLord Bracadale
|
|
Alt: Speir; Francis Gill & Co
9 April 2013
Introduction
[1] The
parties are spouses. The wife is the pursuer in an action of divorce which is
being litigated in Stirling Sheriff Court. Her husband, the defender, does not
want to be divorced. There is evidently considerable tension between them. The
defender has been excluded from further participation in the litigation and has
been found to have been in contempt of court, in terms of interlocutors dated
28 February 2012. He appealed, unsuccessfully, to the Sheriff Principal
and he now appeals to this court.
[2] We propose
to continue referring to parties as pursuer and defender.
Background
General
[3] The
parties' financial circumstances are, on the averments, not straightforward. The
relevant assets include a number of heritable properties and business
interests. Each claims financial provision from the other. There are
indications of attempts having been made to settle their respective claims
which have, thus far, been unsuccessful. There are also indications of the
defender's conduct - some of which can only be described as bizarre - having
caused considerable distress, anxiety, and upset to the pursuer. For example,
on 10 May 2011, the sheriff granted interim interdict against
molestation in what might be described as the usual terms but only refrained
from going on to interdict the defender from :
".. crying, sobbing, wailing, howling, shouting or otherwise issuing forth exclamations of distress, threatening to commit suicide or taking any steps showing or tending to show that he has attempted to do so"
because the defender gave an undertaking to the court to refrain from such conduct, the import of that being that he accepted that he had been behaving in that manner.
Initial Proceedings before the Sheriff
[4] The action
was raised in October 2010 on behaviour grounds. The parties had separated on
10 August 2010. The defender was initially represented by Mr Pollock
of Messrs Pollock Somerville, solicitors. Mr Pollock continued to
represent him, preparing and lodging pleadings, appearing in court and seeking
to achieve settlement on his behalf, until late April 2011, when he withdrew
from acting for him.
[5] The
defender then instructed Mrs MacLeod of Messrs Anderson Strathern,
solicitors. A proof was fixed for 25 October 2011 but was discharged on
the motion of the defender. A new proof date was fixed for 24 January
2012. On that day, parties were, initially, allowed a generous amount of time
for discussion to see whether settlement of their financial claims could be
reached. When the case called for proof later , Mrs MacLeod made a motion
for discharge of the proof. No prior notice of that motion had been given.
The principal reason appears to have been that the defender wanted to introduce
a new claim for an order for the transfer to him of the pursuer's share in one
of the parties' jointly owned heritable properties. The motion for discharge
was refused and the proof began. Evidence was led but not concluded and the
proof was adjourned until 27 February 2012.
[6] By letter
dated 13 February 2012, Anderson Strathern withdrew from acting for the
defender. A peremptory diet was, accordingly, fixed for 21 February 2012.
The defender appeared at that diet. In relation to that hearing, at
paragraph 11 of the sheriff's note, he states:
"On 21 February , the defender appeared personally. He intimated his intention to proceed with his defence. I specifically raised with him whether he expected to be in a position to proceed at the forthcoming proof diet. He indicated that he was "getting a new lawyer" and intended to proceed. I clarified with him that he was not making a motion to adjourn the proof and he confirmed that he was not. (Mr Dickie intimated that were any such motion to be made, he would oppose it). On that basis, I continued that case to the adjourned proof diet. I told the defender to seek legal advice quickly."
The Continued Proof Diet: 27 February 2012
[7] The diet
of continued proof called at 10 am on Monday 27 February, two weeks
after Mrs MacLeod had withdrawn from acting and six days after the
peremptory diet. The defender had instructed a new solicitor, Mr Kelly of
Messrs Mann, solicitors, but not until Thursday 23 February. He did not
explain why it had taken until then for him to instruct a new solicitor. From
the terms of paragraph 12 of the sheriff's note, it seems that Mr Kelly
had some, though not all, of the papers and that whilst he was not fully
cognisant of the whole case, had a reasonable grasp of the issues. He
indicated, however, that he wished more information and that he did not feel
that he was able to advise the defender or conduct the proof without more
financial information. Ultimately the position was, as summarised by the
sheriff, that the defender did not have all the evidence he needed and he
wished to amend. The motion was opposed and refused because, as the sheriff
explains at paragraph 16 of his note:
On receipt of that decision, Mr Kelly withdrew from acting for the defender. Before he did so, he assured the sheriff that the defender understood that his withdrawal would not necessarily mean that the hearing would be put off.
[8] The
defender then asked for the hearing to be adjourned. His motion was refused.
What happened next is explained by the sheriff in the following terms:
" 19...... The defender was plainly unhappy with my decision and began to argue with me in a ranting way. I had to tell him somewhat forcefully to be quiet and to sit down and to warn him as to his behaviour. He eventually complied.
The Potential Contempt
20. Mr Dickie re-commenced his examination - in - chief and the defender sat quietly for a few minutes. He then unbuttoned his collar button; began to breathe loudly and rubbing his chest. A few moments later he began screaming and wailing.
21. I waited for a short time to see if this would subside but it did not, so I asked him on several occasions to calm down and to listen to me. He persisted shouting (unintelligibly) in a mixture of English and what I took to be Persian."
The sheriff then had a police constable brought into court. The police constable stood close to where the defender was sitting. The sheriff asked him to compose himself and gave him time to do so. However, as the sheriff records:
"22.......He continued to shout and wail loudly and at one stage hit his own head with his own open hands; lurched forward to bang his head on the table in the well of the court; and slapped the table with his open hand."
The sheriff, accordingly, asked the police constable to remove the defender from the court. The defender refused to co-operate. He fell to his knees. He was removed from the courtroom to the public tea-room, where he continued to shout and wail to the extent that he was disturbing a jury trial taking place in another courtroom.
[9] The
sheriff, having reflected, considered that the defender's behaviour might
amount to a contempt of court and he, accordingly, instructed (a) that he be
detained over the lunchtime adjournment, and (b) that he have access to legal
advice from the duty solicitor. The sheriff provided a written note of what he
had seen and heard happen in court for the assistance of the solicitor who was
to represent the defender. It was handed to Mr McCready, solicitor, who
agreed to represent him.
[10] At 2 pm,
the defender appeared before the sheriff again and was represented by Mr McCready
who stated that the defender was under stress, that he was not feeling well,
that he was cold and shivering, that he had a history of depression and anxiety
and that he did not feel able to deal with his case that day. Having heard
that explanation the sheriff arranged for the defender to be seen by the police
doctor (Dr Oliver Frenschock). He prepared a note which was handed to the
doctor in which he asked him to advise: whether the defender was suffering from
a mental disorder, whether he was capable or incapable of managing his own
affairs and/or of giving instructions for their management, whether he
considered that the defender's earlier conduct in court was attributable to
mental disorder and whether, in particular, his behaviour was voluntary or
involuntary?
[11] Dr Frenschock
examined the defender and reported to the sheriff, in writing, at about 4.45pm.
The terms of his report are rehearsed at paragraph 29 of the sheriff's
note. At the end of the report, Dr Frenschock advised:
"In conclusion I feel that Mr Yazdanparast's behaviour might be explained by his apparent difficulty coming to terms (sic) and accepting the breakdown of his marriage.
He does not display any signs of mental illness and in my opinion he is in possession of his full mental capacities."
[12] That
report was made available to Mr McCready and he discussed it with the
defender, who was brought before the sheriff again. The sheriff decided to
adjourn the matter of the defender's potential contempt overnight. The proof
was also adjourned overnight. The defender was ordained to appear at 10 am
on 28 February.
The Continued Potential Contempt/ Continued Proof: 28 February 2012
[13] At about
9.30am on 28 February, Mr Kelly, the defender's former solicitor, faxed
the sheriff court to advise that the defender had telephoned him that morning
advising that he was "unwell, had been vomiting all night and had arranged an
appointment with a Dr Mullen at the Orchard Park Medical Centre." and that
that appointment was due to take place at 11am.
[14] The proof
and the contempt matter both called before the sheriff at 10 am. The
defender was not present. The pursuer was present, as was her solicitor,
Mr Dickie, who invited the sheriff to pronounce an interlocutor requiring
the defender to provide a medical certificate, on soul and conscience, vouching
his ill health, by 2 pm. The sheriff did so. The interlocutor was in
terms which are replicated in the appeal print. They, in essence, required the
defender to produce a medical certificate to the court detailing the nature and
extent of any medical condition from which he was suffering, whether it
prevented him from attending at court and participating in the proceedings and
if so, when he would be fit to attend court to do so. That interlocutor was
immediately passed to Scott & Co, Sheriff Officers who served it on the
defender personally, at the medical centre.
[15] The
defender at no time provided any such certificate. However, he appeared in the
court building shortly prior to lunchtime and was advised to attend at 2 pm.
In the meantime, a letter from Scott & Co was handed to the sheriff. It
was in the following terms:
"....in accordance with your instructions our officer attended at Orchard House Medical Centre where Mr Yazdanparast was interviewed personally and became very emotional. Mr Yazdanparast asked our officer to explain the details of the Interlocutor to his Doctor claiming that he was not in a condition that allowed him to explain. Our officer went back into the medical centre and spoke to the Doctor who stated that he was unwilling to provide a medical statement as Mr Yazdanparast's condition does not stop him from attending court."
At 2 pm, the defender attended court. He insisted that he was unwell despite the terms of Scott & Co's letter being put to him. When asked where he had been at 10 am that morning, he said that he had been sitting in his shop. That is, he had been at work.
[16] The sheriff
then had an email sent to the doctor who had seen the defender that morning,
asking if he could confirm, in writing, what he had said to the sheriff
officers. The doctor was not willing to send an email or fax; he was only
prepared to send a written answer by post, possibly on account of data
protection concerns.
[17] The sheriff
proceeded with the hearing. He found the defender to have been in default by
not attending at court at 10 am: see Ordinary Cause Rules ("OCR")
para 33.37. He rejected the defender's explanation that his non-attendance
was because he was unwell. In paragraph 49 of his note, he explains that
he had seven separate reasons for doing so. In summary, they were:
[18] The sheriff
also found the defender to be in default by not having produced a medical
certificate, as ordered. We doubt whether that was an appropriate finding to
make, given that the actual production of such a certificate was not within the
direct power of the defender, but it was separate from and did not affect the
finding of default by reason of non-appearance at the diet.
[19] The sheriff
repelled the defender's pleas-in-law and allowed the cause to proceed as
undefended by way of affidavit evidence. He pronounced an interlocutor to that
effect. At paragraph 53 of his note, the sheriff expressly recognises
that exclusion from proceedings is a draconian measure and explains why, under
reference to eight separate reasons, in the circumstances, he considered that
it was appropriate to opt for that course of action. In summary, those reasons
were:
[20] The sheriff
then found the defender to have been in contempt because of his persistent
disruptive behaviour - which had been deliberate and persisted in despite
warnings - on 27 February 2012. He pronounced an interlocutor to that
effect. He imposed no sanction in relation to the contempt. After the defender
had been advised of the sheriff's decisions he became verbally aggressive and
alleged to the sheriff : "...he has barbecued me and now you barbecue me" . The
"he" referred to was the pursuer's solicitor.
Appeal to the Sheriff Principal
[21] Having
considered the details of what took place before the sheriff and his reasons
for (a) finding the defender to be in default and allowing proof by affidavit
evidence, and (b) finding the defender to have been in contempt of court, the
sheriff principal refused the appeal.
[22] He
concluded that it was not competent to appeal to him in relation to the finding
of contempt: MacPhail Sheriff Court Practice para 2.25. We note that
it was not and is not conceded that the sheriff principal was correct about
that but it is not an issue which we require to determine since it is clear
(and was not disputed) that it is competent to appeal to this court from a
sheriff's finding of contempt.
[23] Regarding
the sanction imposed for the defender's default - it being conceded that he had
been in default - the sheriff principal considered that it was evident that
there had been a serious and deliberate default by the defender and it was open
to the sheriff, in the circumstances, to allow the action to proceed as
undefended. Indeed, it was proper and appropriate to do so.
OCR 33.37:
[24] The
provisions of OCR para 33.37 are contained in that part of the rules which
relates to family actions and, insofar as relevant, are:
"33.37. (1) In a family action in which the defender has lodged a notice of intention to defend, where a party fails-
......................
(b) to implement an order of the sheriff within a specified period,
(c) to appear or be represented at any diet, or
.......................
that party shall be in default.
(2) Where a party is in default under paragraph (1), the sheriff may-
(a) where the family action is one mentioned in rule 33.1(1)(a) to (h), (n) or (p), allow that action to proceed as undefended under Part II of this Chapter; or
(b) .........................
(c) ........................
(d) .................., or
(da) make such other order as he thinks fit to secure the expeditious progress of the cause; and
(e) award expenses."
Since the rule applies to family actions, the power to exclude a defender from further participation in the action applies as much to cases where the defences include a crave for an order for financial provision as it does to those where the defender seeks only to resist the pursuer's financial claims. To put it another way, it applies not only where a defender seeks to vindicate a defence but also where he seeks to advance his own financial claims.
Relevant Authorities
[25] Where, as
in the present case, a defender is in default in terms of OCR 33.37(1), the
observations of Lord Penrose, delivering the opinion of the court in the case
of Fernandez v Fernandez (2007) SC 547, are pertinent. In that
case, the defender in an action of divorce was in wilful default by not being
present or represented at a diet. At paragraph 34, Lord Penrose
observed:
"[34] ....The guiding principle is that the court should seek to do justice between the parties in the circumstances of the case. But where there is a prima facie defence the interests of justice will, in the absence of exceptional circumstances, militate in favour of giving the defender an opportunity to vindicate his defence and accordingly against granting decree by default. The issue remains one of discretion in all the circumstances of the case, however, and there is no rule that a defender must be allowed the opportunity to vindicate a prima facie defence."
[26] Awards of
financial provision are regulated by secs 8 and 9 of the Family Law
(Scotland) Act 1985 which provide, put shortly, that before the court can make
such an award, it must be satisfied that it is (a) justified by one or more of
the principles set out in sec 9, and (b) reasonable having regard to the
resources of the parties. Notwithstanding the structured approach to awards of
financial provision required by the legislation, much is left to the discretion
of the judge.
[27] In the case
of Ali v Ali (No 2) (2001) SC 618, an action of divorce
from which the defender had been excluded and which had been allowed to proceed
as undefended, by means of affidavit evidence, the sheriff's award of financial
provision was challenged on the basis that the sheriff had not been provided
with any supporting evidence at all, not even in the affidavits lodged on her
behalf. Delivering the Opinion of the Court, Lord Hamilton (as he then
was) said, at paragraphs 23 - 24:
"[23] It is plain that, whatever precisely the legal foundation for it, there has been since at least 1966, a well-established rule (at least of practice) that an application for financial provision on divorce should, except where parties are agreed, be supported by evidence and that such evidence should be considered by the judge or sheriff when deciding whether or not to grant the application. ............in all cases, except where there is agreement, it is appropriate that there be an evidential basis to warrant the award.
[24] Plainly there was no such basis
before the sheriff when by his interlocutor of 3 January 1996, he made
award of a capital sum of £70,000. It was submitted on behalf of the
respondent that in the circumstances of this case that was unimportant. The
reason why the sheriff did not have fuller information about the relevant
capital assets was the petitioner's failure to obtemper the sheriff's orders. An
affidavit by the respondent dealing with her financial claims would merely have
repeated what was said by her on averment. We are unable to accept that
submission. While his failure to disclose assets (including non compliance with
court orders in that regard) was a matter to be taken into account, it did not
of itself justify the grant of the financial application. Moreover not only
does compliance with the rule ensure that the application is supported by sworn
testimony, but, if the rule is properly followed, the affidavit should give a
full, accurate and up to date explanation of why the amount claimed would,
having regard to secs 8 and 9 of the 1985 Act, be justified and
reasonable. In her averments in the sheriff court action the respondent put
certain values on certain capital assets as at the date of the parties'
separation (in 1989). She gives no explanation as to the basis for those
figures (historical cost, professional valuation or otherwise) or how those
figures were related to the resources of the parties at the date of the
application (in 1994). A mere repetition on affidavit of the statement on
averment might well, if properly considered, have made appropriate a
requirement by the sheriff that the basis for the amount of the respondent's
claim be more fully explained - at a By Order hearing or otherwise."
[28] Accordingly,
in a case where undefended proof has been allowed but parties have not reached
agreement on financial provision, it will not be enough for the pursuer who
seeks an order for financial provision to rely on bald assertions. Further,
such a pursuer would be well advised to lodge affidavits not only from herself
but also from any witness whose evidence would have been relied on to support
the relevant financial claims at a contested hearing, together with supporting
documentation (such as valuation reports) and to have regard, in the presentation
of that evidence, to any issues previously raised by the defender regarding the
veracity or reliability of such evidence and/or the appropriateness of the
pursuer's financial claims. Even where that has occurred, it will also be open
to the judge or sheriff, before determining the claim for financial provision,
to fix a hearing, By Order, so as to have the pursuer/the pursuer's
representative, address the court orally in relation to any issues which arise
from considering the case on the papers. Where there is a claim for financial
provision which is not the subject of agreement and the defender has been excluded
from the action - however appropriate that exclusion might have been - the
court should not feel constrained from fixing such a hearing if, for instance,
it has a doubt or doubts about the financial claims. It is not obliged simply
to proceed on the basis of the ipse dixit of the affidavit evidence. The
overall obligation remains to do justice between parties and in applying the
relevant statutory provisions, assess the evidence in the light of the whole
circumstances including the defender's averments and any documents lodged by
him prior to his exclusion following default.
[29] Art 6 (1)
of the European Convention on Human Rights provides:
"1. In the determination of his civil rights and obligations.......everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
[30] Where a
party to a litigation alleges, before the relevant hearing, that his rights
under art 6(1) will be breached at that hearing, it is only where it can
be said that violation will be a "practical certainty" or an "inevitability"
that the court may, at that preliminary stage, interfere: Transco Plc v
HMA (NO. 2) 2005 1 JC 44.
[31] We were not
referred to any authority which would support the proposition that art 6(1)
entitles litigants to be present or represented at all stages of the
proceedings which is not surprising given the line of Strasbourg authority to
the effect that practical and effective access to the court need not
necessarily involve participation in the proceedings (see: for instance, Ashingdane
v United Kingdom (1985) A 93; H v United Kingdom (1985) DR
45).
Grounds of Appeal
[32] There
appeared to be four aspects to the written grounds of appeal.
[33] First, that
the sheriff's decision to allow the cause to proceed as undefended was
disproportionate and unnecessary. The sheriff had failed to give sufficient
weight to the defender's right to vindicate his claim for fair financial
provision on divorce; there were alternative options open to him.
[34] Second,
that the defender's case had been dismissed and he had thereby been deprived of
his rights under art 6(1) of the Convention.
[35] Third, that
it is competent to appeal to the sheriff principal against a finding of
contempt but even if it is not, it should be reviewed by this court.
[36] Fourth, the
sheriff had erred by not adjourning the proof on 27 February; the defender
had no representation and was not in a position to represent himself.
Submissions for the Defender
[37] Counsel for
the defender referred us to various aspects of the parties' financial circumstances
in an effort, it seemed, to demonstrate that they were complicated and involved
difficult issues such as whether or not the defender had an interest in an Isle
of Man trust; the defender denies that he has any interest in that trust. We
observe, in passing, that on the documents produced to us, he may have some
difficulty in so doing given that the trust is said to be a "revert to settlor"
trust where he is recorded as being the settlor and as being first in the list
of beneficiaries. Counsel also referred to the fact that the pursuer based her
claim on sec 9 principles which involved the court exercising a measure of
discretion. The defender would now have no opportunity to challenge the
pursuer's valuations. Insofar as some of the matrimonial assets were joint
heritable property, there would have to be further procedure. There was a
complication in that the pursuer was resident in the former matrimonial home
with the benefit of an exclusion order that would fly off on divorce being
granted. The defender was not satisfied that the pursuer had made full
disclosure and he would not be able to pursue that matter further.
[38] As to the
law, Mr Speir's submission was to the effect that, absent exceptional
circumstances, it was not open to the sheriff to do as he did. Whilst the
decision in Ali (No 2) demonstrated that the court would have a duty to
have regard to the principles of the 1985 Act, that was no substitute for the defender
being permitted to exercise his right to vindicate his claims.
[39] Regarding
details of the sheriff's handling of matters, Mr Speir submitted that the
sheriff had, wrongly, proceeded on the basis that the defender had not acted
promptly to get a new solicitor after Mrs MacLeod withdrew from acting. Further,
there were reasons that were explanatory of both her and Mr Pollock's
withdrawals from acting which did not call for censure of the defender. He
referred to reasons for their withdrawal which were not put before the sheriff
or the sheriff principal nor were they vouched; we do not, in these
circumstances, consider that we ought to have regard to them. Further,
regarding Mr Pollock, whilst it was said that he withdrew because he was a
criminal law practitioner and family law was not his area of expertise, if that
was the reason or the only reason, it seems reasonable to expect that
withdrawal would have occurred at a much earlier stage than it did; in
particular, prior to the drafting of pleadings and engagement in efforts to
negotiate a settlement.
[40] Regarding
the defender's conduct on 27 February, it was unusual and unfortunate but
he did not want to be divorced. Counsel sought to submit that Dr Frenschock
did not provide a proper answer to the sheriff's enquiries of him but we cannot
accept that that is fair. He may not have answered the sheriff's questions one
by one but his conclusion was plain and it provided a clear response to the
central issue that had been raised.
[41] Regarding
28 February, it was accepted that the defender was in default by not
attending at court. It was also accepted that the various steps taken by the
sheriff on both 27 and 28 February to make enquiries about the defender's
state of health were appropriate from a pastoral perspective. The proof could,
however, have carried on. One option was to use the power under s.12 of the
1985 to postpone determination of the claims for financial provision until a
later date, restricting the proof at that stage, to the issue of divorce. The
case had not been ongoing for very long. It was irrelevant that the defender
had consulted three separate solicitors. It was irrelevant that there had been
efforts to settle the case. It was accepted that the sheriff witnessed what
happened in court but that had to be balanced against the difficult
circumstances in which the defender found himself. The defender would suffer
prejudice that was not outweighed by prejudice to the pursuer.
[42] Regarding
the refusal to adjourn the proof on 27 February, Mr Speir accepted
that the order pronounced was not a final interlocutor and that no application
had been made timeously for leave to appeal against that interlocutor , as
sec 27(d) and 28 of the Sheriff Courts (Scotland ) Act 1907 required. However,
he understood that this court could review all prior interlocutors in an
exercise of its supervisory jurisdiction.
[43] Mr Speir
submitted that the defender's art 6(1) rights had been breached. He had
been excluded from the process. It was consistent with a fair trial that a
litigant be present or represented. That was implied in the right to a fair
hearing. He referred - after the close of Mr Macpherson's submissions -
to Clayton and Tomlinson at para 11.425. He did, however, accept that
art 6 did not confer absolute rights.
[44] Regarding
the contempt of court matter, he submitted that the sheriff had failed to
consider whether or not wilful conduct had been established beyond reasonable
doubt: Johnston v Johnston 1996 SLT 499.
Submissions for the Pursuer
[44] Mr Macpherson
observed that the defender seemed to be saying that the sheriff had been bound
to allow matters to go forward to a contested proof because orders for
financial provision were sought. That was, however, to ignore the amount of discretion
built into the relevant provisions of the 1985 Act. Indeed, it would be
foolhardy of the pursuer to think that she could simply rely on repeating in an
affidavit what was said in her averments, standing the decision of this court in
Ali (No. 2).
[45] The
issue was not whether or not parties' finances were complex. It was whether or
not the sheriff's exercise of his discretion was plainly wrong. He submitted
that it was not. He had exercised a discretion in refusing adjournment on
27 February 2012 (which could not now be appealed against) and in relation
to his disposal after having made a finding of default which, in the
circumstances, he was bound to make. He had not misdirected himself in law, he
had not taken account of an irrelevant factor nor had he weighted the factors
in a way which was demonstrative of error. The possibility of alternative ways
of dealing with the default did not demonstrate that the sheriff had erred. He
had, further, appropriately balanced prejudice - prejudice which was now, from
the pursuer's perspective, greater as she had, in the meantime, continued
paying the mortgage on the jointly owned former matrimonial home.
[46] Regarding
art 6 ECHR, he submitted that lack of representation was not of itself a
breach, nor was exclusion of the defender from the proceedings in circumstances
such as had occurred in this case. Further, the challenge was premature: Transco.
[47] He, very
properly, made no submissions in relation to the finding of contempt.
Discussion and Decision
[48] It was
conceded on behalf of the defender, before the sheriff principal and before us,
that the defender was in default by having failed to attend court at 10 am
on 28 February. That was a concession that was well made in the circumstances,
particularly given the sheriff's detailed and careful explanation of how and
why he concluded that the defender's failure in that regard amounted to a
relevant default.
[49] The sheriff
was, accordingly, bound to consider whether to allow the action to proceed as
undefended or to make some other order to secure the expeditious progress of
the cause ( OCR 33.37(2)(a) and(da)), as was accepted by Mr Speir. Contrary,
however, to his submission, the sheriff did not require to consider whether
there were exceptional circumstances. The terms of the rule, rather, confer a
wide discretion on a sheriff where a party is in default. Moreover, they make
it clear that the serious or draconian step of excluding a defender from
further participation in the litigation - whether or not he himself has a claim
against the pursuer - is an option.
[50] The
defender thus had the task of overcoming the high hurdle of demonstrating that
in exercising that discretion, the sheriff had taken account of an irrelevant
factor or failed to take account of a relevant factor or had reached a decision
that could only be said to be perverse in all the circumstances.
[51] It is
important that a judge explain why a discretion that is available to him has
been exercised in any particular way. If he does not do so, it may be
difficult to ascertain his reasoning process and that may, in turn, pave the
way to a successful perversity challenge. The sheriff here, however, did not
exercise his discretion without explaining himself. To the contrary, he
engaged in a detailed and careful assessment of all the relevant
circumstances. It was not suggested that he did not provide adequate reasons. Indeed,
that is not a criticism which could possibly be levelled at him; in his
commendably clear written reasons, he spells out exactly why he decided as he
did.
[52] Ultimately,
the challenge came to be that the sheriff had failed to take account of
relevant factors and had taken account of an irrelevant factor: he had failed
to consider alternative options, failed to appreciate that Ali (No. 2) did
not demonstrate that prejudice to the defender would be minimised, and had had
no basis for concluding that the pursuer would have difficulty in securing a
loan if there was further delay. He also criticised the weight given by the
sheriff to the pursuer's assertion that the action would have settled on
24 January had it not been for the defender's desire to delay matters.
[53] We are not
persuaded that any of these criticisms are sound.
[54] The alternative
options suggested by Mr Speir were that the sheriff could (a) have allowed
the proof to continue with the defender participating or (b) have allowed the
crave for divorce to be disposed of at that stage whilst postponing the
determination of all other issues. The sheriff was not bound to follow either
of these courses of action. We would have been surprised had he considered it
appropriate to do so. The default was clear and deliberate. It followed on
the defender having engaged in disruptive behaviour the day before. It was
demonstrative of the defender being determined to delay the proceedings. It had
adverse consequences on 28 February in that half a day during which
progress could have been made was immediately wasted and then time required to
be taken in the afternoon dealing with the defender's default. Sanction was,
we agree, called for. As for the suggestion that resolution of the parties'
financial dispute be postponed, that would have been wholly inappropriate. This
was a dispute that was crying out for resolution. Nothing in the circumstances
before the sheriff pointed to it being in the interests of either party for it
to be put "on the back burner".
[55] Regarding
the import of Ali (No.2), Mr Speir's submission came to be that the
sheriff would not be obliged to consider competing evidence or submissions. We
refer to what we say above regarding this matter. Whilst the defender will not
now be entitled to lead evidence or make submissions, that does not relieve the
court of its obligations to decide the pursuer's claims fairly having regard to
the whole circumstances.
[56] As for the
reference to borrowings, Mr Speir's submission does not properly reflect
the sheriff's concern which was that both parties could be prejudiced in that
regard.
[57] We cannot
find fault with the sheriff's reasoning. The factors on which he relied were
all relevant and together they amounted to a powerful case for determining on
the sanction provided for by OCR 33.37(2)(a).
[58] Turning to
the defender's attempt to appeal now against the sheriff's refusal to adjourn
the case on 27 February, leave was not but should have been sought from
the sheriff (Sheriff Courts (Scotland) Act 1907s.28(1)(d)). No
explanation for that failure was given to us. We observe, furthermore, that we
cannot find any cause to criticise the sheriff for having decided as he did. Again,
he had a discretion and it was clearly within his powers to refuse the
adjournment for the reasons stated by him.
[59] Turning to
the finding of contempt, we find that there is no merit in the defender's
argument. The sheriff did not need to state expressly that he was satisfied
beyond reasonable doubt that the defender's conduct was wilful in circumstances
where he set out in his reasons, very clearly and carefully, what he observed
himself and the steps he took to ascertain that there was no medical
explanation for the defender's disruptive behaviour - which, on the face of
matters, obviously amounted to a contempt of court.
[60] We would add
that the sheriff's handling and recording of the difficult circumstances with
which he was faced on 27 and 28 February 2012 appear to us to have been
exemplary. We commend, in particular, the staged approach which he adopted and
the fact that, throughout, he took care to check whether the defender was in fact
ill and in need of medical attention.
Disposal
[60] We will, in
these circumstances, pronounce an interlocutor refusing the appeal and
remitting the action to the sheriff at Stirling to proceed as accords.