SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE

 

F30/10

 

JUDGMENT OF SHERIFF PRINCIPAL

R A DUNLOP QC

 

in the cause

 

ANDREW SIMPSON

Pursuer and Appellant

 

against

 

JENNIFER DOWNIE

Defender and Respondent

 

__________________

 

 

Act: Malcolm, Advocate, instructed by Boyles, Solicitors, Forfar

Alt: Innes, Advocate, instructed by Machardy, Alexander & Whyte WS, Forfar

 

 

FORFAR, 17 August 2011. The Sheriff Principal, having resumed consideration of the cause, refuses the opposed motion of the pursuer (no. 7/3 of process) to allow the record to be opened up and amended in terms of the Minute of Amendment (no. 13 of process); refuses the appeal and adheres to the sheriff's interlocutor of 9 December 2010 complained of; certifies the appeal as suitable for the employment of junior counsel; finds the pursuer and appellant liable to the defender and respondent in the expenses of the appeal; allows an account thereof to be given in and remits the same when lodged to the auditor of court to tax and report; remits to the sheriff to proceed as accords.

 

 

 

 

 

NOTE:

 

[1] In this action the pursuer seeks inter alia an order for payment by the defender of a capital sum in terms of section 28(2)(a) of the Family Law (Scotland) Act 2006 (hereinafter referred to as "the 2006 Act").

 

[2] Section 28 applies "where cohabitants cease to cohabit otherwise than by reason of the death of one (or both) of them."

 

[3] Section 28(2)(a) provides as follows:

 

"On the application of a cohabitant (the "applicant"), the appropriate court may, after having regard to the matters mentioned in subsection (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."

 

[4] Section 28(4) provides that, in considering whether to make an order under subsection (2)(a), the appropriate court shall have regard to the matters mentioned in subsections (5) and (6).

 

[5] Section 28(8) provides that any application under this section shall be made not later than one year after the day on which the cohabitants cease to cohabit.

 

[6] The parties to the action were cohabitants within the meaning of the 2006 Act but ceased to cohabit on 13 March 2009. The pursuer's initial writ was lodged with the sheriff clerk and warranted on 11 March 2010. It was served on the defender the following day. Accordingly the pursuer complied with the time limits set out in section 28(8) of the 2006 Act.

 

[7] Defences were lodged on 27 April 2010. These defences incorporated a crave for payment by the pursuer to the defender of a capital sum in terms of section 28 of the 2006 Act. The defences also incorporated two preliminary pleas in law in terms of which the defender challenged the competency of certain of the pursuer's craves and also the degree of specification of the pursuer's averments. A rule 22 note was lodged in support of these pleas and a diet of debate was assigned. However no issue arises in this appeal out of the sheriff's treatment of these pleas.

 

[8] When the matter came before the sheriff for debate on the defender's preliminary pleas the pursuer took the opportunity of submitting that the defender's first crave was incompetent in respect that her claim was made outwith the period prescribed by section 28(8) of the 2006 Act. This submission was made notwithstanding the absence of any preliminary plea in law or rule 22 note and apparently without any objection on the part of the defender. The sheriff entertained this argument but rejected it on the basis that the defender's crave was in effect part of her defence to the pursuer's claim and that she should not be denied the opportunity of setting off her claim against that of the pursuer. His conclusion was that in these circumstances the defender's crave was not caught by what he described as the time bar provisions of section 28(8). He then went on to consider the arguments advanced in support of the defender's preliminary pleas and pronounced an interlocutor leaving all pleas standing and assigning a hearing to determine further procedure. At that diet he granted the pursuer's motion for leave to appeal. An appeal was then marked by the pursuer on the single ground that the sheriff had "erred in rejecting the submission that the defender's first crave was time barred and has prescribed."

 

[9] Prior to the hearing of the appeal the pursuer lodge a minute of amendment in which he proposed the insertion of two new pleas in law as follows:

 

"1. The defender's counterclaim for payment of a capital sum under section 28 of the Family Law (Scotland) Act 2006 having been made outwith the period of twelve months after the date of cessation of cohabitation is incompetent and should be dismissed with all craves, averments and pleas in support of same deleted."

 

2.                  The defender's counterclaim for payment of a capital sum under section 28 of the Family Law (Scotland) Act 2006 being time barred should be dismissed, with all craves, averments and pleas in support of same deleted."

 

[10] This minute of amendment was not moved until the diet of appeal and parties were agreed that the arguments for and against the allowance of the amendment were bound up with the arguments on the merits of the appeal. Counsel for the pursuer submitted that section 28 of the 2006 Act created the right of cohabitants to claim financial provision and that if one failed to enforce that claim within the time limit prescribed by section 28(8) the right ceased to exist. This made the provisions of section 28(8) more akin to a rule of prescription than one of limitation so that the very foundation of the defender's claim was undermined by the lapse of the time limit of one year without the making of the claim. Such a deficiency could be noticed by the court irrespective of whether there was a plea in law. If on the other hand section 28(8) was to be seen as a limitation provision it was accepted that the pursuer could waive that defence and required positively to plead it if he wished to rely upon it. Reference in this regard was made to Johnson on Prescription and Limitation para 20.04.

 

[11] So far as the substance of the sheriff's decision was concerned, it was submitted that he had erred in viewing the defender's crave as part of the wider defence to the pursuer's claim. On the contrary the defender's crave was a positive separate claim under section 28 and the defender was as much bound by the provisions of section 28(8) as the pursuer. Reference was made to the analysis of the provisions of section 28 set out in paragraphs 9 and 10 of my own decision in Mitchell v Gibson 2011 Family LR 53. Albeit the pursuer did not found upon this point, it was submitted that the defender's claim was not in proper form and that it ought to have been cast in the form of a counterclaim. It was pointed out that an application under section 28 was not a "family action" as defined by ordinary cause rule 33.1 and that the general provisions of the ordinary cause rules therefore applied. Thus the defender's own application under section 28 ought to have been made either by way of initial writ (OCR 33B(1)) or by way of counterclaim (OCR 19.1(1)). A counterclaim was by definition a claim which might have been made in a separate action.

 

[12] On the question whether the defender's counterclaim was timeous it was submitted that it required to be made prior to the expiry of the relevant period. Having only been lodged on 27 April 2010 it was plainly out of time. Reference in this regard was made to Beveridge and Kellas v Abercromby 1997 SLT Sh.Ct. 5, Henshaw v Carnie 1988 SCLR 305, Boyle v Glasgow Corporation 1975 SC 238 and Johnson on Prescription and Limitation page 337 at paragraph 6. Reference was also made to Lawley v Sutton unreported 18 March 2010 (Sheriff Berry, Wick) in which the sheriff had allowed an amendment to introduce a section 28 claim outwith the time limit prescribed by section 28(8). It was submitted however that this decision could be distinguished on the ground that the substance of the claim had already been set out in the defences lodged within the one year period and that the amendment was merely correcting the form of the claim and not its substance.

 

[13] In a brief reply counsel for the defender submitted that section 28(8) was a limitation provision which required to be plead by the pursuer and that in the absence of a relevant plea in law it was not open to the pursuer to take this point. She opposed the allowance of the pursuer's minute of amendment. It was further submitted that in any event, even if the minute of amendment were allowed so as to introduce the plea, it should be repelled on the grounds that the defender's claim was part of her defence to the pursuer's claim. In this regard she adopted the reasoning of the sheriff. She agreed that the approach outlined in paragraphs 9 and 10 of Mitchell v Gibson was the correct approach but submitted that there was nothing in that analysis which undermined the sheriff's conclusion.

 

[14] In my opinion the provisions of section 28 clearly support the view that each cohabitant must make a separate application before the court is entitled to make an order for payment of a capital sum in the applicant's favour. In paragraphs 9 and 10 of my decision in Mitchell v Gibson I offered an analysis of the provisions of section 28 and expressed the view that each of the questions posed by section 28(3) were separate and defined by the provisions of sub-sections (5) and (6) respectively with the result that it was not appropriate to put all matters into a single melting pot and for the court to come to a view about where the balance of advantage and disadvantage fell. I expressed the opinion that, if the defender had his or her own claim under section 28, such a claim could only be vindicated by way of the defender's own application or perhaps by counterclaim in the same process.

 

[15] Since that decision the Inner House of the Court of Session has had occasion to consider the provisions of section 28 (see Gow v Grant 2011 Fam LR 50) but confined itself to emphasising the limited scope of the section and the importance of applying it in accordance with its precise terms. While the actual result in Mitchell v Gibson may be inconsistent with the decision in Gow v Grant, specifically on the question of economic disadvantage suffered by one party in the interests of the other, it respectfully seems to me that there is nothing said in that case which casts doubt on the analysis set out and the views expressed in paragraphs 9 and 10 of my own decision, the correctness of which was accepted on both sides of the bar.

 

[16] That being the case there is I think little difficulty in concluding that the provisions of section 28(8) ought to be seen as applying equally to both cohabitants. Each cohabitant requires to make his or her own application, be it by initial writ or counterclaim, and must do so within the period prescribed by section 28(8). In the present case the defender's application was only made for the first time on 27 April 2010 and is accordingly outwith the relevant period. The authorities referred to in paragraph 12 above clearly support this conclusion. I agree that the decision in Lawley v Sutton can be distinguished for the reasons advanced by counsel for the pursuer.

 

[17] In his judgment the sheriff expresses the view that the defender ought to be able to offset her claim against that of the pursuer and that her crave is in reality simply part of her defence. He refers to the offsetting provisions of sub-sections (5) and (6). With respect to the sheriff, I do not think that a separate counterclaim is necessary to allow the defender to argue that the pursuer's own claim is either unwarranted or overstated and that by reference to the offsetting provisions to which he refers. But it is one thing to deploy such arguments in defence of the pursuer's claim and quite another to say that these arguments should not only abate the pursuer's claim but actually result in a net payment to the defender. The defender's crave seeks a payment by the pursuer to the defender and in my view that plainly constitutes an application within the meaning of section 28(2).

 

[18] In that state of affairs I now turn to consider the competing interpretations of section 28(8). I have already referred to the absence of any plea in law for the pursuer when the matter was argued before the sheriff, a matter noticed by the sheriff himself. The primary contention for the pursuer was that this raised an issue of competency and it was pars judicis to take notice of that irrespective of the absence of a plea in law.

 

[19] In my opinion the defender's submissions on this matter are to be preferred. Section 28(8) merely prescribes the time within which an application must be made. It is a procedural bar to the making of the application. It does not provide that the court may not make an order unless the application is made timeously and, in the absence of any objection to the late lodging of the application, I do not consider that it would be unlawful for the court to make an order in terms of section 28(2). The question raised by the pursuer therefore is not one of competency but one of limitation and in my opinion the sheriff ought not to have entertained the pursuer's argument on its merits without an appropriate plea in law.

 

[20] In that state of affairs the pursuer's appeal must fail unless he is allowed to amend his pleadings so as to introduce the appropriate plea in law. This calls for an exercise of discretion. On the one hand the pursuer contends that there can be no prejudice in allowing the amendment at this stage of the proceedings because it was simply formally introducing pleas in law in support of a proposition which had been fully argued at the debate. On the other hand the proposition was clearly an afterthought since it found no expression in a plea in law or rule 22 note and so far as I can determine was not mentioned at all (at least to the court) before the debate itself.

 

[21] In Johnston on Prescription and Limitation the author emphasises that the plea of limitation is a defender's plea and that the defender must put it in issue. He states that the defender can waive the defence and that the court cannot insist that it is plead. I understood counsel for the pursuer to accept these propositions. The time for taking such a point is in my view the time at which the pleadings are settled and the record is closed. If the plea is not taken at that point in my view the party entitled to make the plea must be taken to have waived their right to do so absent any explanation for the inactivity. To put it another way the party in question is thereafter personally barred from taking the point. In the present case there was nothing said to explain why the pursuer had not raised the issue of section 28(8) at an earlier stage and there was no material before me to rebut the inference that the pursuer had waived this defence when the record was closed. In these circumstances it does not seem to me to do justice between the parties to allow the pursuer to row back from that position at this stage and I have accordingly refused to allow amendment in the terms sought.

 

[22] It follows that the appeal must be refused and the sheriff's interlocutor adhered to, albeit for different reasons to those advanced by the sheriff. In light of this outcome parties were agreed that the pursuer should be liable in the expenses of the appeal. Parties were also agreed that the appeal should be certified as suitable for the employment of junior counsel.