SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY AT DUMFRIES

 

B185/08

 

 

 

 

 

 

 

 

Act: Mr McKenzie of Messrs Harper Macleod LLP, Solicitos, Glasgow

Alt: Mr Parratt, Advocate instructed by Messrs Brazenall & Orr, Solicitors, Dumfries

 

 

 

 

 

 

 

 

 

 

Judgement dated 11 November, 2010

 

 

 

SECRETARY OF STATE FOR WORK AND PENSIONS, CHILD SUPPORT AGENCY v MR STEVEN O'DONNELL

 

B185/08

 

 

 

DUMFRIES: 11 November, 2010

 

The Sheriff Principal, having resumed consideration of the appeal, allows same and recalls the interlocutor of the Sheriff complained of dated 12^th and 26^th  November 2009; finds the Appellants entitled to the expenses of the appeal; allows an account thereof to be given in and remit the same when lodged to the Auditor of Court to tax and to report; otherwise remits to the Sheriff to proceed as accords; directs the Sheriff Clerk to assign the cause to a different sheriff for all further procedure.

 

 

 

 

 

Sheriff Principal

NOTE:

 

1.    This is an appeal in a summary application by the Secretary of State for Work and Pensions (now, since November 2008, the Child Maintenance and Enforcement Agency). In the application the Appellants sought warrant committing the Defender to prison or, alternatively, an order of disqualification from the holding of a driving licence in terms of subsections (a) and (b) respectively of section 39A(2) of the Child Support Act 1991 as amended ("the 1991 Act"). The summary application was lodged on 5 June 2008 and after sundry procedure - including continuations for the purpose of monitoring payment arrangements between parties - on 9 April 2009 proof was allowed and assigned for 5 October 2009. After hearing proof the Sheriff made avizandum and by his judgement of 12 November 2009 repelled the first plea in law for the Pursuers that the Defender be imprisoned or disqualified and sustained the Defender's plea in law for dismissal of the action. At a hearing on expenses on 26 November 2009 the Sheriff found no expenses due to or by either party. Against those interlocutors the Pursuers appealed.

 

2.    The basis of the application was that the Defender, being a "liable person" in terms of the 1991 Act had failed to make payments due under a liability order made against him on 7 December, 2007. Diligence had been attempted without success. The Pursuers averred that the Defender, having being called upon to make the payments due, had wilfully refused or culpably neglected to do so and, accordingly he should either be committed to prison or disqualified from holding a driving licence all in terms of section 39A.

 

3.    In his Judgement of 12 November 2009 the Sheriff, after hearing evidence and submissions, made a number of findings in fact but, in particular, made the following findings,

"Finds in Fact and Law:-

 

1.       In the period from 14 May 2002 (the beginning of the period in respect of which the liability order was made) to 5 June 2008 (the date the Secretary of State presented his summary application under section 39A (1) of the Act), the Defender did not wilfully refuse to pay the sums due under the liability order.

2.       In the same period, he did culpably neglect to pay the sum due under the liability order.

 

3.       In the period from 30 June 2008 (the date the Defender became eligible to receive Job Seekers Allowance) to 5 October 2009 (the hearing of the summary application under section 39A (1) of the Act) the Defender neither wilfully refused nor culpably neglected to pay the sums due under the liability order.

 

Finds in Law:-

 

1.       The Defender is liable only to imprisonment or disqualification from driving in a summary application under section 39A (1) of the Act if, on the date the summary application first calls before the sheriff or at a hearing shortly thereafter, the Defender was wilfully refusing, or culpably neglecting to pay the sums due by him under the liability order.

 

2.       The Defender was neither wilfully refusing nor culpably neglecting to pay those sums when the summary application under section 39A (1) first called before the sheriff on 3 July 2008.

 

3.       The Defender is therefore not liable either to be imprisoned or disqualified from holding or obtaining a driving licence by order under section 39A(2) of the Act in the present application under section 39A (1) of the Act.

 

Further Finds in Law:-

 

1.       It was not competent for the court to have continued the summary application on 31 July 2008 to "monitor the payments agreed".

 

2.       It was not competent for the court to have continued the summary application on 11 September 2008 "for payments to be made".

 

3.       It was not competent for the court to have continued the summary application on 12 February 2009 "to monitor payment agreement"."

 

 

4.         In the course of appeal I was referred to various statutes, textbooks and authorities in accordance with an inventory lodged by the Appellants. I have attached a copy to this judgement. The Appellants, most helpfully, lodged an inventory with copies of all authorities and legislation to which they might refer and, in particular, various excerpts from the Child Support Act 1991 as amended and reflecting the amendments as at the relevant dates from which they were in force.

 

5.    The case is concerned with sections 33, 38, 39A and 40, 40A and 40B of the 1991 Act which deal with Liability Orders, their enforcement in Scotland and the commitment to prison or disqualification from driving which may arise from a failure to make payments due under such orders. Section 33 defines liability orders:

"33.- Liability orders.

(1) This section applies where-

(a) a person who is liable to make payments of child support maintenance ("the liable person") fails to make one or more of those payments; and

(b) it appears to the Commission that-

(i) it is inappropriate to make a deduction from earnings order against him (because, for example, he is not employed); or

(ii) although such an order has been made against him, it has proved ineffective as a means of securing that payments are made in accordance with the maintenance calculation in question.

(2) The Commission may apply to a magistrates' court or, in Scotland, to the sheriff for an order ( "a liability order") against the liable person.

(3) Where the Commission applies for a liability order, the magistrates' court or (as the case may be) sheriff shall make the order if satisfied that the payments in question have become payable by the liable person and have not been paid.

(4) On an application under subsection (2), the court or (as the case may be) the sheriff shall not question the maintenance calculation under which the payments of child support maintenance fell to be made.

 

The other sections are set out where referred to in the course of the Appellants' submission.

 

Grounds of appeal

 

6.    The Note of Appeal is as follows:

(1.) The Sheriff erred in law in finding that in the period from 30 June 2008 until 5 October 2009 that the defender neither wilfully refused nor culpably neglected to pay the sums due under the liability order.

(2.) The Sheriff erred in law in finding that the defender was only liable to imprisonment or disqualification from driving in a Summary Application made under Section 39A(1) of the Child Support Act 1991 ("the Act") if, on the date the Summary Application first called before the sheriff or at a hearing shortly thereafter, the defender was wilfully refusing or culpably neglecting to pay the sums due by him under the liability order.

(3.)         (A). The Sheriff erred in law in not finding that when considering whether the defender should be imprisoned or disqualified from driving in a summary application made under Section 39A(1) of the Act that the relevant period to be considered for the purposes of determining whether there has been wilful refusal or culpable neglect on the part of the defender for the purposes of sections 39A(3)(c), 40(3) and 40A(1) of the Act to pay child support maintenance is (i) the period beginning with the date on which the defender first became liable to pay the child support maintenance in respect of which recovery was sought by virtue of section 38 of the Act down to the date of the proof; or alternatively (ii) the period beginning with the date from which the defender first became liable to pay the child support maintenance in respect of which recovery was sought by virtue of section 38 of the Act down to (a) the date of presentation of the summary application to the court or (b) the date of first calling of the summary application before the sheriff or at a hearing shortly thereafter; or

(B). the Sheriff erred in law in not finding that when considering whether the defender was liable to be imprisoned or disqualified from driving that whether the defender has wilfully refused or culpably neglected to pay child support maintenance for the purposes of sections 39A(3)(c), 40(3) and 40A(1) of the Act is to be determined by the position as at the date of presentation of the summary application to the court.

(5.) Separatim, the Sheriff erred in law in making a finding that the defender was neither wilfully refusing nor culpably neglecting to pay the sums due by him under the liability order on 3 July 2008 when the summary application made by the pursuer under Section 39A(1) of the Act first called before the sheriff.

(6.) The Sheriff erred in law in finding that the defender was not liable either to be imprisoned or disqualified from holding or obtaining a driving licence by order under Section 39A(2) of the Act.

(7.) The Sheriff erred in law in not either imprisoning the defender or disqualifying the defender from holding or obtaining a driving licence pursuant to the application made by the pursuer under Section 39A(1) of the Act.

(8.)         The Sheriff erred in law in considering and determining whether it was competent for the court to have continued the summary application made by the pursuer under Section 39A(1) of the Act on 31 July and 11 September both 2008 and 12 February 2009.

(9.) The Sheriff erred in law in finding that it was not competent for the court to have continued the summary application made by the pursuer under Section 39A(1) of the Act on 31 July and 11 September both 2008 and 12 February 2009.

(10.)              The Sheriff erred in law in finding that the pursuer could not found on the agreement between the pursuer and the defender as referred to in the interlocutors of 31 July and 11 September both 2008 and 12 February 2009 in establishing that the defender was wilfully refusing or culpably neglecting or had wilfully refused or culpably neglected to pay the sums due by him under the liability order.

(11.)  The Sheriff erred in introducing and that only at the stage of submissions following proof, the proposition that the defender was only liable to imprisonment or disqualification from driving if on the date the summary application first calls before the sheriff or at a hearing shortly thereafter, the defender was then wilfully refusing or culpably neglecting to pay the sums due by him under the liability order.

(12.)     The Sheriff erred in himself referring to and relying on authorities not referred to by parties and not in support of submissions advanced or cases made by parties and by advancing lines of argument and statutory interpretation during submissions of parties, without advance notice, and in his judgement, without any notice.

 

 

Appellants' submission

7.             For the Appellants Mr McKenzie referred me to the Sheriff's Judgement of 12 November 2009 but also drew my attention to a second Note or Judgement which the Sheriff had issued after the hearing on expenses. Mr. McKenzie expressed surprise at this since the majority of the Note concerned the arguments advanced by the Sheriff in his first judgement and a critique of the Note of Appeal. He also pointed out that the competency of the issue of expenses in a summary application was not an issue between parties. They had agreed it was competent and whilst the Appellants did not challenge the determination of the issue of expenses in the light of the judgement made by the Sheriff in the principal issue they did challenge the merits of the principal judgement.

 

8.             Under reference to the first judgement, (pages 47 to 52), he said there had been no motion for expenses before the Sheriff after the principal hearing but he had nonetheless chosen to set out what could only be described as an academic discussion on the competency of expenses in a summary application. He had further set out as an issue (pages 52 to 53), the competency of an appeal against the judgement. The Appellants were at a loss to understand why the Sheriff had chosen to do this. The Sheriff had chosen to refer to his own text book on summary applications but Mr McKenzie emphasised that today there was no issue between parties concerning the competency of the appeal.

 

9.             There were two substantial issues in the appeal. These were firstly, the point in time at which the Sheriff was to determine the issue of wilful refusal and/or culpable negligence and, secondly, the competency of continuations of a summary application for the purpose of monitoring payment arrangements or indeed any other legitimate purpose. The line taken by the Sheriff in his judgement was entirely of his own making. It had not been the subject of submissions to him by the Defender.

 

10.         Mr McKenzie drew my attention to the Inventory of Productions for the Appellants which contained a chronology of the procedure from the warrant to cite of 5 June 2008 and copies of letters and interlocutors to which he might refer. Whilst he took me through the inventory, in itself it is simply a record of what has happened up to the present time and does not directly concern the validity or otherwise of the submissions in the appeal. It shows that the application first called before the sheriff on 3^rd July 2008; that answers were ordered; that there were several continuations to monitor payment arrangements; and that a Record of pleadings was ordered for the proof diet.

 

11.         Mr. McKenzie then referred to the terms of the Sheriff Courts (Scotland) Act 1907 ("the 1907 Act") and in particular section 3(p) in which the term "summary application" was construed thus,

"3. In construing this Act (unless where the context is repugnant to such construction)-

......................

(p) "Summary application" means and includes all applications of a summary nature brought under the common law jurisdiction of the sheriff principal, and all applications, whether by appeal or otherwise, brought under any Act of Parliament which provides, or, according to any practice in the sheriff court, which allows, that the same shall be disposed of in a summary manner, but which does not more particularly define in what form the same shall be heard, tried, and determined;.."

 

12.         With reference to section 50 of the 1907 Act,

"Summary applications.

In summary applications (where a hearing is necessary) the sheriff shall appoint the application to be heard at a diet to be fixed by him, and at that or any subsequent diet (without record of evidence unless the sheriff shall order a record) shall summarily dispose of the matter and give his judgement in writing: Provided that wherever in any Act of Parliament an application is directed to be heard, tried, and determined summarily or in the manner provided by section fifty-two of the Sheriff Courts (Scotland) Act 1876, such direction shall be read and construed as if it referred to this section of this Act: Provided also that nothing contained in this Act shall affect any right of appeal provided by any Act of Parliament under which a summary application is brought."

 

he pointed out that a hearing was "necessary" in applications under the 1991 Act. Section 50 of the 1907 Act envisaged "subsequent diets" and formed the statutory basis for summary applications in the Sheriff Court.

 

13.              He then referred to section 32 of the Sheriff Court (Scotland) Act 1971 ("the 1971 Act") and the power of the Court of Session to regulate procedure in the Sheriff Court. The powers were very wide ranging. In exercise of those powers the Court of Session had enacted the Act of Sederunt (Summary Applications etc) Rules1999 and he drew my attention to chapter 2. There were other chapters concerning specific applications under various statutes but none dealt with the 1991 Act. Accordingly, only chapter 2 was relevant. Rule 2.4 dealt with the form of a summary application unless it was otherwise prescribed. The 1991 Act did not have a prescribed form. In terms of Rule 2.31 the sheriff was empowered to make such orders as he thought fit insofar as not inconsistent with the terms of section 50 of the 1907 Act. Accordingly it was competent to make orders if they were not in conflict with section 50 and on that basis it was perfectly competent to continue applications if the sheriff considered it appropriate to do so.

 

14.              Section 39A of the 1991 Act had been amended in 2008. The Appellants produced the version applicable to the period 2001 to 2008 and the current version. Although they overlapped in this particular case nothing turned on that fact. Accordingly it was appropriate to consider the current version, the only difference between the two sections being the substitution of the Commission for the Secretary of State. Section 38 provided for enforcement of liability orders by diligence in Scotland and, in terms of section 39A(1)(b), the provisions in that section were applied to Scotland. The sections are in the following terms:

" 38.- Enforcement of liability orders by diligence; Scotland.

(This version in force from: April 22, 2009 to present)

(1) In Scotland, where a liability order has been made against a person, the order shall be warrant anywhere in Scotland-

(a) for the Commission to charge the person to pay the appropriate amount and to recover that amount by an attachment and, in connection therewith, for the opening of shut and lockfast places;

(b) for an arrestment (other than an arrestment of the person's earnings in the hands of his employers) and action of furthcoming or sale,

(c) for an inhibition.

(2) In subsection (1) the "appropriate amount" means the amount in respect of which the order was made, to the extent that it remains unpaid."

 

(There are earlier versions of this section but the differences are minor and immaterial to the issues in the appeal. The version in force at the commencement of these proceedings including the making of the liability order simply referred to the Secretary of State rather than the Commission in subsection (1)(a).)

39A.- Commitment to prison and disqualification from driving.

(This version in force from: November 1, 2008 to present)

(1) Where the Commission has sought-

(a) in England and Wales to levy an amount by distress under this Act; or

(b) to recover an amount by virtue of section 36 or 38,

and that amount, or any portion of it, remains unpaid it may apply to the court under this section.

(2) An application under this section is for whichever the court considers appropriate in all the circumstances of-

(a) the issue of a warrant committing the liable person to prison; or

(b) an order for him to be disqualified from holding or obtaining a driving licence.

(3) On any such application the court shall (in the presence of the liable person) inquire as to-

(a) whether he needs a driving licence to earn his living;

(b) his means; and

(c) whether there has been wilful refusal or culpable neglect on his part.

(4) The Commission may make representations to the court as to whether it thinks it more appropriate to commit the liable person to prison or to disqualify him from holding or obtaining a driving licence; and the liable person may reply to those representations.

(5) In this section and section 40B, "driving licence" means a licence to drive a motor vehicle granted under Part III of the Road Traffic Act 1988.

(6) In this section "the court" means-

(a) in England and Wales, a magistrates' court;

(b) in Scotland, the sheriff."

(Once again there is an earlier version of this section but, as before, the only difference is the substitution of the Commission for the Secretary of State.)

 

15.         Accordingly, it was a necessary preliminary to any application under Section 39A that the Pursuers had sought to enforce the liability order in terms of section 38. They had done so and it remained unpaid. Section 39A(2) allowed the court to make the order for committal to prison or disqualification "whichever the court considers appropriate in all the circumstances". In England (section 40 of the 1991 Act) the criterion was "the opinion" of the court as to whether there had been wilful refusal or culpable neglect on the part of the liable person to pay whereas in Scotland (section 40A) the criterion was whether or not the sheriff was "satisfied" as to these matters. Whatever the difference - upon which the Appellants offered no view - ultimately the sheriff had a very wide discretion in determining whichever of the two, if either, was "appropriate".

 

16.         Section 39A(3) imposed a requirement on the court - which was mandatory - to have an inquiry in the presence of the liable person. The section specified three matters into which the court required to inquire but, in particular, whether or not "there has been" (his emphasis) wilful refusal or culpable neglect. Mr McKenzie described the tense of this phrase as being the "present perfect progressive tense". Accordingly, he submitted, it encompassed an event which must have happened in the past; which might be a continuing event; and also which might occur tomorrow or further in the future. Section 39A(4) allowed the Commission the right to make representations in the inquiry and afforded a right of reply to the liable person.

 

17.         Under reference to section 40 of the 1991 Act, (which dealt with commitment to prison), in its form before the amendment in 2001, he pointed out that, in terms of section 40(12), sub-sections 1 to 11 did not apply to Scotland. He drew my attention to the terms of section 40(2)(b) and the use of the tense "has been" for England. In Scotland, until April 2001, sub-sections (13) and (14) of section 40 applied. They provided:

"(13) For the avoidance of doubt, it is declared that a sum payable under a liability order is a sum decerned for aliment for the purposes of the Debtors (Scotland) Act 1880 and the Civil Imprisonment (Scotland) Act 1882.

(14) Where a liability order has been made, the Secretary of State (and he alone) shall be regarded as, and may exercise all the powers of, the creditor for the purposes of section 4 (imprisonment for failure to obey decree for alimentary debt) of the Civil Imprisonment (Scotland) Act 1882."

 

18.         After April 2001 to the present date in England, commitment to prison, was appropriate when the court was "of the opinion" that it was appropriate to do so in terms of section 40(3). In Scotland, in terms of section 40A, (added to the 1991 Act by the Child Support, Pensions and Social Security Act 2000, section 17(2)) such commitment to prison was on the basis that the court was "satisfied that there had been wilful refusal or culpable neglect on the part of the liable person" and that it was appropriate to do so. Accordingly, the English position prior to 2001 became the position in Scotland because it replaced entirely the Civil Imprisonment (Scotland) Act 1882. Section 40A was in the following terms:

"40A.- Commitment to prison: Scotland.

(This version in force from: April 2, 2001 to present)

(1) If, but only if, the sheriff is satisfied that there has been wilful refusal or culpable neglect on the part of the liable person he may-

(a) issue a warrant for his committal to prison; or

(b) fix a term of imprisonment and postpone the issue of the warrant until such time and on such conditions (if any) as he thinks just.

(2) A warrant under this section-

(a) shall be made in respect of an amount equal to the aggregate of-

(i) the appropriate amount under section 38; and

(ii) an amount (determined in accordance with regulations made by the Secretary of State) in respect of the expenses of commitment; and

(b) shall state that amount.

(3) No warrant may be issued under this section against a person who is under the age of 18.

(4) A warrant issued under this section shall order the liable person-

(a) to be imprisoned for a specified period; but

(b) to be released (unless he is in custody for some other reason) on payment of the amount stated in the warrant.

(5) The maximum period of imprisonment which may be imposed by virtue of subsection (4) is six weeks.

(6) The Secretary of State may by regulations make provision for the period of imprisonment specified in any warrant issued under this section to be reduced where there is part payment of the amount in respect of which the warrant was issued.

(7) A warrant issued under this section may be directed to such person as the sheriff thinks fit.

(8) The power of the Court of Session by Act of Sederunt to regulate the procedure and practice in civil proceedings in the sheriff court shall include power to make provision-

(a) as to the form of any warrant issued under this section;

(b) allowing an application under this section to be renewed where no warrant is issued or term of imprisonment is fixed;

(c) that a statement in writing to the effect that wages of any amount have been paid to the liable person during any period, purporting to be signed by or on behalf of his employer, shall be sufficient evidence of the facts stated;

(d) that, for the purposes of enabling an inquiry to be made as to the liable person's conduct and means, the sheriff may issue a citation to him to appear before the sheriff and (if he does not obey) may issue a warrant for his arrest;

(e) that for the purpose of enabling such an inquiry, the sheriff may issue a warrant for the liable person's arrest without issuing a citation;

(f) as to the execution of a warrant of arrest.

 

19.         Of course, the Sheriff still retained a discretion. If the sheriff was satisfied then he "may" make the order sought. It was for the sheriff to determine whether or not is was appropriate to do so and accordingly it was a very wide discretion. The sheriff was entitled to fix the term of imprisonment and also entitled to postpone its implement. Accordingly a warrant might be issued with imprisonment postponed and the threat of imprisonment was simply hanging over the debtor.

 

20.         Accordingly, in the present case, if the sheriff had been satisfied that Mr O'Donnell had been wilfully refusing or culpably neglecting to make the payments required under the liability order then the sheriff could have issued a warrant for imprisonment or fixed the term and postponed its implement on such conditions as the sheriff thought fit. Six weeks was the maximum term of imprisonment. The sheriff had carte blanche in terms of conditions he could impose upon the order.

 

21.         Section 40A(2) dealt with the determination of the amount of expenses in terms of section 38. Section 40A(4) dictated that the warrant was to be for a fixed period and for release upon payment of the sums due. Section 40A(5) fixed the maximum period at six weeks. Mr McKenzie submitted that the process was designed to extract the money from the liable person rather than impose a punishment. The liable person could purge their wilful refusal or culpable neglect simply by making payment.

 

22.         Section 40B had the disqualification provisions and applied to the United Kingdom as a whole.

"40B.- Disqualification from driving: further provision.

(This version in force from: April 1, 2009 to present)

(1) If, but only if, the court is of the opinion that there has been wilful refusal or culpable neglect on the part of the liable person, it may-

(a) order him to be disqualified, for such period specified in the order but not exceeding two years as it thinks fit, from holding or obtaining a driving licence (a "disqualification order"); or

(b) make a disqualification order but suspend its operation until such time and on such conditions (if any) as it thinks just.

(2) The court may not take action under both section 40 and this section.

(3) A disqualification order must state the amount in respect of which it is made, which is to be the aggregate of-

(a) the amount mentioned in section 35(1), or so much of it as remains outstanding; and

(b) an amount (determined in accordance with regulations made by the Secretary of State) in respect of the costs of the application under section 39A.

(4) A court which makes a disqualification order shall require the person to whom it relates to produce any driving licence held by him, and its counterpart (within the meaning of section 108(1) of the Road Traffic Act 1988).

(5) On an application by the Commission or the liable person, the court-

(a) may make an order substituting a shorter period of disqualification, or make an order revoking the disqualification order, if part of the amount referred to in subsection (3) (the "amount due") is paid to any person authorised to receive it; and

(b) must make an order revoking the disqualification order if all of the amount due is so paid.

(6) The [Commission]² may make representations to the court as to the amount which should be paid before it would be appropriate to make an order revoking the disqualification order under subsection (5)(a), and the person liable may reply to those representations.

(7) The [Commission]² may make a further application under section 39A if the amount due has not been paid in full when the period of disqualification specified in the disqualification order expires.

(8) Where a court-

(a) makes a disqualification order;

(b) makes an order under subsection (5); or

(c) allows an appeal against a disqualification order,

it shall send notice of that fact to the [Commission]² ; and the notice shall contain such particulars and be sent in such manner and to such address as the [Commission]² may determine.

(9) Where a court makes a disqualification order, it shall also send [any driving]³ licence and its counterpart, on their being produced to the court, to the [Commission]⁴ at such address as [it]⁵ may determine.

(10) Section 80 of the Magistrates' Courts Act 1980 (application of money found on defaulter) shall apply in relation to a disqualification order under this section in relation to a liable person as it applies in relation to the enforcement of a sum mentioned in subsection (1) of that section.

(11) The Secretary of State may by regulations make provision in relation to disqualification orders corresponding to the provision he may make under section 40(11).

(12) In the application to Scotland of this section-

(a) in subsection (2) for "section 40" substitute "section 40A";

(b) in subsection (3) for paragraph (a) substitute-

"(a) the appropriate amount under section 38;";

(c) subsection (10) is omitted; and

(d) for subsection (11) substitute-

"(11) The power of the Court of Session by Act of Sederunt to regulate the procedure and practice in civil proceedings in the sheriff court shall include power to make, in relation to disqualification orders, provision corresponding to that which may be made by virtue of section 40A(8).""

 

 

23.         In terms of subsection (1) if the court was "of the opinion" that the liable person had been wilfully refusing or culpable in neglecting to pay then it may make an order of disqualification. In England the evidential criterion for imprisonment was "opinion" and for disqualification also but, in Scotland, for imprisonment the court had to be "satisfied" that there had been wilful refusal or culpable neglect whereas for disqualification the court had to be "of the opinion" that there had been such refusal or neglect. Mr McKenzie was unclear why there should be such a difference between Scotland and England in these terms. The maximum period of disqualification was fixed at two years and once again it might be fixed or its implement postponed. It was not competent to impose imprisonment and disqualification. Subsections (3) and (5) required the statement of the amount due and a provision dealing with the right to purge liability and also the revocation or reduction in the term of disqualification.

 

24.         Mr McKenzie described the foregoing as an outline of the statutory structure so far as the application made in this case was concerned.

 

25.         Imprisonment for debt had been abolished by the Debtors(Scotland) Act 1880 save for sums decerned for aliment and certain special fines. Sections 3 and 4 of the Civil Imprisonment Act 1882 ("the 1882 Act") dealt with the process for such imprisonment. They provided:

"3. Imprisonment for alimentary debts.

No person shall, except as hereinafter provided, be apprehended or imprisoned on account of his failure to pay any sum or sums decerned for aliment.

4. Power to imprison for wilful failure to obey decree for alimentary debt.

Subject to the provisions herein-after contained, any [sheriff principal or sheriff]¹ may commit to prison for a period not exceeding six weeks, or until payment of the sum or sums of aliment, and expenses of process decerned for, or such instalment or instalments thereof as the [sheriff principal or sheriff]¹ may appoint, or until the creditor is otherwise satisfied, any person who wilfully fails to pay within the days of charge any sum or sums of aliment, together with the expenses of process, for which decree has been pronounced against him by any competent court;

provided-

(1) That the warrant to commit to prison may be applied for by the creditor in the sum or sums decerned for without any concurrence:

(2) That the application shall be disposed of summarily, and without any written pleadings:

(3) That the failure to pay shall be presumed to have been wilful until the contrary is proved by the debtor; but that a warrant of imprisonment shall not be granted if it is proved to the satisfaction of the [sheriff principal or sheriff]² that the debtor has not, since the commencement of the action in which the decree was pronounced, possessed or been able to earn the means of paying the sum or sums in respect of which he has made default, or such instalment or instalments thereof as the [sheriff principal or sheriff]¹ shall consider reasonable:

(4) That a warrant of imprisonment may be granted of new, subject to the same provisions and conditions, at intervals of not less than six months, against the same person in respect of failure to pay the same sum or sums of aliment and expenses of process, if or in so far as still remaining due, or such instalment or instalments thereof as the [sheriff principal or sheriff]² shall consider reasonable, or any sums afterwards accruing due under the decree, or such instalment or instalments thereof as the sheriff or sheriff substitute shall consider reasonable:

(5) That the imprisonment shall not to any extent operate as a satisfaction or extinction of the debt, or interfere with the creditor's other rights and remedies for its recovery:

(6) That the creditor, upon whose application the warrant of imprisonment is granted, shall not be liable to aliment or to contribute to the aliment of the debtor while incarcerated under such warrant; but that the incarcerated debtor shall be subject to the enactments and rules as to maintenance, work, discipline, and otherwise applicable to the class of prisoners committed for contempt of court.

 

26.         It was particularly significant that it was "wilful failure to pay within the days of charge" that attracted the liability to the penalty. Accordingly the "days of charge" was the period which the court had to consider. The generality was subject to provisions dealing with the summary disposal and, significantly, that a failure to pay was presumed to be wilful until the contrary was proved by the debtor. Accordingly, there was a presumption of wilful failure which was quite different from the provisions under the 1991 Act. So far as the standard of proof in Scotland in a section 39 application was concerned the authorities to date all supported the requirement that it was to be proof beyond reasonable doubt. Accordingly, the provisions dealing with civil imprisonment under the 1882 Act were completely different from the 1991 Act and with effect from 2 April 2001 all reference to the 1882 Act had been removed. Thus, in the Appellants' submission, it was of no relevance to the present day provisions and the operation of those provisions in terms of the 1991 Act.

 

27.         Under reference to the case of The Secretary of State v Martin (dated, at Perth, 2 April 2008) Mr McKenzie drew my attention to the findings in fact made by the Sheriff and, in particular, the third finding in law. On page 2 of the Note the Sheriff had discussed the procedural history of the case including agreements between parties for the liable person to make payment but had criticised the process as having gone on too long. The Appellants took no issue with the Sheriff's entitlement to form the view that the process had gone on too long and accepted it was entirely a matter for the Sheriff to allow continuations of the application. It was open to the Sheriff to sist the application or to fix an evidential hearing under section 39A of the 1991 Act. There was however, a fundamental difference between this and finding that continuations of summary applications were incompetent. To determine that the continuations of the kind which occurred in the present case were incompetent flew in the face of Rule 2.31 of the 1999 Rules.

 

28.         In Martin the Sheriff had continued by examining the evidence of the history of the Defender's failure to pay and the Defender's state of knowledge. He had considered the statutory provisions and, under reference to page 8 of the Sheriff's judgement, Mr. McKenzie submitted that the Sheriff had regard to the entire period from the time the person became a liable person to the date of the Sheriff making the determination.

 

29.         Under reference to the Secretary of State v McNamara 2005 SLT (Sh Ct) 125 he pointed out that in that case the Sheriff had reviewed the history of non-payment and drew my attention in particular to pages 126 to 129 of the report. Once again the Sheriff had considered the entire period during which there had been a failure to pay. The case of Secretary of State v McCulloch (dated, at Glasgow, 6 January, 2009 Sheriff Principal Taylor)- was authority for the proposition that there must be an inquiry. No issue had been taken with the competency of continuations of the application. In Secretary of State v Runciman (dated at Selkirk 12 June 2007) it was quite clear that the Sheriff had regard to the whole period during which the Defender had failed to pay in making the finding of wilful refusal. In particular he drew my attention to the terms of the findings in fact 4 to 10 inclusive, 14 regarding the issue of enforcement and 21. This case followed the line adopted by the Sheriff in Martin. In an appeal in the Runciman case the Sheriff Principal had determined (30 August 2007 at Edinburgh) that the approach adopted by the Sheriff was appropriate and, in particular, in having regard to the history of the dealings with the Child Support Agency. The Sheriff Principal had expressed some reservations about the standard of proof being beyond reasonable doubt but no issue was taken with that standard in the present proceedings.

 

30.         In the case of the Child Maintenance & Enforcement Commission ("CMEC") v Wilson (dated at Paisley 6 July 2009) once again the Sheriff had considered the entire work record of the Defender and had looked at the whole history of the failure to make payment. Likewise in CMEC v Duncan (dated at Perth 4 September 2009) the whole history of the failure to pay had been reviewed by the Sheriff. All these decisions had been made in Scotland and, because Mr McKenzie's firm had handled all cases for the Agency in Scotland, these were all the decisions relevant to this particular matter. In all, the Sheriffs had adopted the same approach. They had had regard to the history of the liability from the date the assessment had been made, through the making of the liability order and up to the date of inquiry when the Defender's status as to wilful failure or culpable neglect had been determined. In the present case, before the Sheriff, this was the approach adopted both by the Pursuers and the Defender both of whom had been represented by solicitors.

 

31.         In response to a question from me Mr McKenzie confirmed that parties had been alerted to this possible difference of approach during submissions. He referred to the terms of his Note of Appeal and, in particular, grounds 11 and 12. There had been no notice in advance of submissions that the Sheriff had in mind an approach different from that adopted by the parties to the issue as to the point in time at which the court judged whether or not there had been wilful refusal or culpable neglect or on the issue of the competency of the continuations. It was only in the course of submissions by parties that the Sheriff had referred to the case of Cain v McColm (1892) 19R 813. Once again in response to a question from me Mr McKenzie confirmed that the solicitor then appearing for the Pursuers had not made an application for adjournment to enable her to consider these matters further.

 

32.         Mr McKenzie then went on to consider the terms of the Sheriff's judgement. He drew my attention to various findings in fact and in particular numbers 1, 2, 4 and 5, to the findings in fact and in law 1, 2 and 3 and to the three findings in law. He submitted that the Sheriff's findings in law numbers 1 and 2 were in error. So far as the further findings in law 1 to 3 were concerned Mr McKenzie accepted them as accurate so far as the narrative of the interlocutors was concerned but submitted they were wrong in law. In relation to the interlocutor of 12 February 2009 the interlocutor was fuller in its terms than as set out by the Sheriff. At page 7, paragraph 7 onwards, the Sheriff had considered "the law". It was clear that the Sheriff was aware that the 1991 Act made reference to the 1882 Act but that those references had been repealed. In paragraph 19 he had set out the terms of section 4 of the 1882 Act and this, in Mr McKenzie's submission, was the beginning of a course of reasoning which led the Sheriff into error. The 1882 Act, since 2 April 2001, had no relevance whatsoever to applications for commitment to prison under the 1991 Act. He submitted that the Sheriff's construction in paragraph 20 of his judgement was neither correct nor necessary in his consideration of the 1991 Act. "Summarily" does not mean "summary application". Proceedings under the 1882 Act were commenced by petition. However the Sheriff had later attached the term "summarily" to summary application under the 1907 Act and there was no similarity between the two terms as used in the two Acts. Sub-paragraph (b) of paragraph 20 of the first Judgement was, in Mr McKenzie's submission, a complete mis-statement of the law. Neither statute required "justification" for commitment to prison. It was a disposal open to the court provided certain statutory criteria were met. The reference to "culpable negligence" was rather a distinction than a similarity between the Acts. The similarities were that each Act provided civil procedures for commitment to prison for failure to make a payment in respect of child maintenance or aliment. He accepted that the Sheriff's narrative in sub-paragraph (c) of paragraph 20 - was accurate.

 

33.         Insofar as paragraph 21 of the Sheriff's note was concerned he accepted the accuracy of sub-paragraphs (a) and (b). However in the sub-paragraph (c) the Sheriff had erred and misconstrued the 1881 Act. If the debtor rebutted the presumption relative to the days of charge then imprisonment did not follow. So far as sub-paragraph (d) was concerned Mr McKenzie accepted this because applications under the 1882 Act were commenced by a pre-printed minute. However, in the Appellants' submission, the Sheriff had omitted a whole series of other and substantial differences which made clear that the 1882 Act has no relevance to the 1991 Act and its procedures. The period for the determination of wilfulness related to the period of charge only in the 1882 Act. Section 40A(1) provided for disqualification from driving; section 40A(4)(b) prescribed a right to purge; section 39A(2) fixed an "appropriateness" test; and section 39A(3) directed that there had to be an inquiry as to the means of the debtor; all of which were designed to inform the Sheriff's discretion in the exercise of it.

 

34.         With reference to paragraph 22 of the Sheriff's note Mr McKenzie submitted that the 1882 Act had no application whatsoever. It appeared from the terms of this paragraph that the Sheriff was of the view that the 1882 Act had some application despite earlier recognising in his note that it had been repealed. He submitted that the case of Cain v McColm had little importance and since the Sheriff appeared to regard it as of considerable importance it led him into error. The case was concerned solely with the 1882 Act.

 

35.         Pages 17 to 19 of the Sheriff's Note contains the procedural history of the present proceedings. With reference to paragraph 36 of the Sheriff's note (it recorded the Sheriff had refused a motion for adjournment of the proof) Mr. McKenzie informed me that the Defender had made a motion to discharge or adjourn the evidential hearing which the Sheriff refused. In paragraph 37 the Appellants took no exception so far as the reference to matters being disposed of "summarily" was concerned but had difficulty in understanding the Sheriff's reference to "control by agreement". The last sentence of this paragraph simply failed to recognise that as soon as a liability order was made the liable party was under a threat of civil imprisonment or disqualification in terms of the 1991 Act. All the continuations had been on the motion of the Defender so that the issue of "imprisonment hanging over him" had arisen from his own actions. In Secretary of State v Martin there had been no concern whatsoever expressed about the competency of continuations. Rather the Sheriff had expressed the view that the matter had simply been going on too long.

 

36.         The case of Cain v McColm referred to in paragraphs 40 to 45 of the Sheriff's note simply had no relevance to the 1991 Act and the Appellants did not propose to deal with it in detail. Having examined Cain at some length the Sheriff had then chosen to make "comment" on it. So far as paragraph 47 of the Sheriff's note was concerned the first calling of a summary application under the 1907 Act was not set down as a diet for proof or a factual inquiry. There was no basis for that in terms of the 1907 Act or the 1999 Rules. It was unrealistic to think that there could have been an evidential hearing at the first calling. So far as paragraph 49 of the Note was concerned whilst the Appellants had no difficulty with the first sentence they disagreed that it was made clear in Cain that continuations under the 1991 Act were incompetent. It might have been the case for procedures under the 1882 Act. At this point the Sheriff had joined the two issues in this appeal, the period of time and the competency of continuation. The Sheriff had failed to recognise the different statutory language in the 1991 Act from that in the 1882 Act where the onus was on the debtor to rebut the presumption that during the days of charge he wilfully refused to make payment.

 

37.         In paragraph 50 of the note the first sentence was simply wrong. The Sheriff was referring to the 1991 Act. Its purpose was to secure payment of child maintenance not to impose imprisonment or disqualification. Where the Sheriff takes the view that there is a prospect of obtaining payment from a liable party then in the Appellants' submission continuations were entirely appropriate to secure this. It was no doubt open to the Sheriff - as it happened in the Perth case - to take the view that at some point no further continuations would be allowed and this was wholly in accordance with the terms of Rule 2.31. The 1991 Act does not make reference to court proceedings. The proceedings are governed by the 1999 Rules and the 1907 Act, section 50.

 

38.         With reference to paragraph 51 of the Sheriff's Note Mr McKenzie submitted that the Sheriff had earlier said that the relevant date was the date of first calling before the Sheriff. He submitted that both approaches were wrong and that the correct date upon which an inquiry was to be made was the date of the actual inquiry, the proof. On the assumption that the Sheriff, in paragraph 51 of his note, was in fact referring to the date of the first calling of the application, the Appellants submitted that this was hardly a likely date to make the inquiry into the facts. Notwithstanding this, the Sheriff appeared to be of the view that the inquiry had to look at the circumstances prevailing at the date of the first calling. Such circumstances might be totally different from those pertaining at the date of the actual inquiry and he submitted that the test must be at the date of the inquiry. With reference to paragraph 51 of the Sheriff's note, the Appellants did not make applications when it was the most favourable time to achieve a warrant for civil imprisonment.

 

39.         So far as paragraph 52 of the Sheriff's note was concerned what he had to say there might be the case if the statutory test happened to be, is the Defender wilfully refusing to pay or culpably negligent? Such an approach ignored the possibility of suspending the court order as envisaged in the 1991 Act and accordingly it was wrong to say there was no "legal basis". The matter was for the exercise of the Sheriff's discretion. As far as paragraph 53 of the note was concerned whilst the expense might have been "infinitesimal" in 1892 that was certainly not true today.

 

40.         With reference to paragraph 64 of the Sheriff's note whatever the agreement between parties happened to be it mattered not because the Sheriff made a finding in fact that up to June 2008 there had been culpable neglect. His conclusion in paragraph 80 of the note could not be supported on the facts found. The Defender was in employment. He knew of his liability. He paid nothing. That could only amount to wilful refusal and accordingly the first finding in fact and law was not supported by the evidence. However, ultimately, nothing turned on this difference because in paragraph 81 of the note the Sheriff states that he was satisfied that the Defender had been culpably negligent. The Appellants did not challenge this finding in law as dealt with by the Sheriff in paragraphs 81 to 83 of his note. The finding covered the period of liability from May 2002 to June 2008.

 

41.         He submitted that the Sheriff was simply wrong about his interpretation of the case of Cain v McColm. The Sheriff had been wrong to fix on any particular date and he had already determined that on 5 June 2008 the Defender was culpably neglecting to make payment. Notwithstanding this, according to paragraph 87 of his note, the Sheriff had simply plucked the date out of the air. If the Sheriff was right at all in his view that the relevant date was not the date upon which the inquiry took place then it could only be the date of presentation of the application. That view however could not be supported. In paragraph 88 of his note he seemed to contradict what he said in paragraph 87 because once again the Sheriff talked about the Defender "refusing". Then he introduced apparently a new possibility for review at the time of inquiry, namely, "within a reasonable period". Thus, the Appellants submitted, the Sheriff appeared to have selected three possible dates at which inquiry might be made; the date of presentment; the date of the first calling and now a date within a "reasonable period after the first calling". No indication had been given of how any judgement might be made as to what was "a reasonable period".

 

42.         So far as paragraphs 91 and 92 of the note were concerned the Appellants submitted that culpable negligence was irrelevant to the issue of Cain v McColm because it was not something that was mentioned in the 1882 Act. In any event the 1882 Act defined the period as the days of charge.

 

43.         With reference to paragraphs 93 to 95 of the Sheriff's note the Appellants submitted that there was a logical inconsistency in the Sheriff's reference to the case of Cain v McColm because in the beginning of paragraph 93 of his note the Sheriff dealt with the possibility that he might be wrong about the implication of the case of Cain. Even if the interlocutors continuing the application to monitor payments were incompetent that took nothing away from the fact that there had been an agreement to make payments and that the Defender had failed to make the payments.

 

44.         Finally, with reference to paragraph 105(c) of the Sheriff's note and in particular the last sentence in that paragraph it was plain from that, that if the Sheriff had taken a different view as to the issue of competency he would have found that there would have been wilful refusal and/or culpable neglect on the part of the Defender.

 

45.         With reference to grounds 11 and 12 of the Note of Appeal the Appellants also submitted that where a Sheriff intended to take an independent view from the submissions made to him then he was under a duty to alert parties to that proposition and to allow them the opportunity to make further submissions. The Sheriff had failed to do that. The Appellants moved that the appeal be allowed and the Sheriff's interlocutor recalled. Mr McKenzie invited me then to remit to the Sheriff to proceed as accords but to direct that the matter ought not to be returned to the Sheriff who had determined the matter in view of the views he had expressed in his note.

 

Respondent's submission

46.         For the Respondent counsel invited me to refuse the appeal and to adhere to the interlocutor of the Sheriff. Failing that counsel agreed that the matter should be remitted back to the Sheriff to proceed as accords but had no view to express about whether or not it should be dealt with by another Sheriff.

 

47.         As to the procedural issue of whether or not it was competent to continue the summary application it appeared the Sheriff had derived principles from the nineteenth century case of Cain v McColm. The real question, counsel submitted, was whether he had adopted a procedure fair to all parties and allowed them to make submissions as to fact and law on the principles of that case in this particular case. Counsel then tendered a note of what parties had agreed occurred at the proof on 5 October 2009. Thus it was agreed that both parties' agents had been given an opportunity to comment on the case although it appeared that the case was not provided in report form to the agents. Neither party had sought an adjournment to consider the case. In the Sheriff's second note at paragraph 68 he had recounted what was in his mind regarding this case. Counsel accepted that it was very unusual for a Sheriff to produce a "judgement" addressing the substance of a note of appeal pending before the Appeal Court. Nonetheless it was a record of what was in contemplation of the Sheriff and, accordingly, counsel invited me to take cognisance of this second "judgement". Counsel did not reject what the Sheriff said in this second "judgement" about expenses or anything else because it showed what was in the Sheriff's mind. In particular he drew my attention to paragraph 68 of that note.

 

48.         Counsel then referred to paragraph 17.28 of Macphail's Sheriff Court Practice and in particular the case of Bell v McCurdie. He drew my attention to what he described as proper practice in relation to a new matter in the first paragraph of the report at page 67. Then under reference to paragraphs 17 to 29 of Macphail and in particular the case of Lyons Laing v Laird 2001 SLT 1246 (at page 1247). He submitted that there was enough in what the Sheriff did at the proof to allow him to deduce the principles from that case. Accordingly he submitted that grounds 11 and 12 of the appeal failed. However if the court was of the view that an opportunity had not been adequately provided to parties' agents to make submissions then that would dispose of the appeal and it would mean a remit to the Sheriff to proceed as accords in relation to submissions being made on the case of Cain v McColm.

 

49.         With reference to the case of Cain v McColm counsel noted that it emerged from the second "judgement" that the Sheriff had not automatically applied the case to this case. It had not been a futile exercise in carrying out a comparison between the two Acts of Parliament. What the Sheriff had been doing was extracting the principles from Cain, and having considered them, decided they did have an application to the facts of this case. Merely because four other Sheriffs and two Sheriffs Principal had taken one view of the matter that did not necessarily lead to the view that the Sheriff in this case had been wrong. Counsel reminded me that the Sheriff concerned was in fact the author of a major authority on summary applications, namely, the textbook Summary Applications and Suspensions. At paragraph 6-16 (page 68) of that text he had cited the case of Cain v McColm for the view he there expressed.

 

50.         In paragraph 60 of his second "judgement" the Sheriff had made plain that he was talking about the "principles" to be derived from Cain. Whilst accepting that the second note was almost an addendum to the Sheriff's original judgement since he was dealing with an issue of competency it was "pars iudicis" for the court to note such an issue. However counsel accepted that if the Sheriff was wrong in his construction of and application of the principles from Cain then the appeal here must succeed and would require a remit to the Sheriff to proceed as accords.

 

51.         Counsel then referred to the 1991 Act and the issue of the tense of the language used with reference to culpable neglect and wilful refusal. Counsel accepted that the Sheriff in neither judgement had addressed the construction of these words. It may be that the Sheriff had not applied his mind to this issue of the construction of the tense but in fact the Sheriff had looked at the whole period. Having done that he then dismissed it as irrelevant. With reference to section 39A(2) and (3) counsel told me that he had been unable to find any authorities in relation to the phrase "any such application", "wilful refusal or culpable neglect" and "has been". Wilful refusal or culpable neglect was referred to in the explanatory notes and they are defined as deliberate defiance or reckless disregard. Thus the element of intention was essential in that if it was wilful neglect it would be a deliberate action but if the element of intention, that element of deliberate action or inaction, was missing then it could amount to reckless disregard. He submitted that this was not a term of art in the UK legislation and opposed to what might be the case in Scots Law. It was necessary to keep this in mind when considering the construction of the tense "has been" in the 1991 Act. He submitted that in construing the tense of "has been" there must be some continuation of the action to the time the test is to be applied. A one-off isolated incident is not enough. There had to be an element of "continuity" in the behaviour in question.

 

52.         So far as the issue of whether the court has been "satisfied" or to be "of the opinion" in relation to the issue of wilful refusal or culpable neglect counsel submitted that nothing turned on that in this particular case. There did not seem to be any particular reason for adopting a different phraseology for England and Scotland.

 

53.         As to the issue of "the threat of imprisonment" counsel drew my attention to section 40A(1)(a) and (b) of the 1991 Act. He drew my attention to paragraph 37 of the Sheriff's first judgement and in particular the last sentence. The Appellants' point was that this threat was there from the point that the liability order was made and not just from presentation of the application. Counsel accepted that it was true that there was a threat of imprisonment if the liable person continued with a particular behaviour but it was a general threat and quite different from the position when the threat is real, namely, when it was determined in terms of the application. Counsel accepted that the Appellants' point that the purpose behind this Act was to collect child support and not to imprison people. Counsel referred then to the case of in R (on the application of Kehoe) v SS Works and Pensions [2006] 1AC 42 2005 UKHL 48 in which the purpose of the 1991 Act had been considered.

 

54.         The Sheriff clearly had the power to determine progress of an application under the 1991 Act and he had power at common law to control the procedure of a cause. The Sheriff had made clear in his second judgement that he relied on Rule 2.31 of the 1999 Rules. The Sheriff's comparison of the 1882 Act and the 1991 Act was the key to the Sheriff's decision. It had been made quite clear at page 23 of the second judgement that the Sheriff had had regard to the overall period even if he had not looked at the construction of the words "has been".

 

Appellants' reply

55.         So far as grounds 11 and 12 of the appeal were concerned the question for the appeal court arises in terms of paragraph 17.29 of Macphail Sheriff Court Practice and whether or not the issue had been "fully canvassed and examined". Cain v McColm was central to the Sheriff's judgement. He had used it in relation to determining the period to be considered in the enquiry and the date from which the court had to carry out the determination of that period. It was also central to his determination of the issue of competency of the continuation. The Appellants submitted that no proper opportunity had been given to parties to canvass this issue before the Sheriff. In any event Cain was simply irrelevant to the 1991 Act. Cain fell to be distinguished in any event since there was a defined period in terms of the 1888 Act, the days of charge; the continuation in that case had arisen only after the court had made its determination. The principle the Sheriff derived might have been applicable if the Sheriff, having carried out an enquiry, made a decision that it was appropriate to impose imprisonment but had then continued the case for the purpose of obtaining payment. A continuation after a determination to make an order for imprisonment in terms of the 1882 Act was not in accordance with the scheme under that Act as opposed to the 1991 Act.

 

56.         Mr McKenzie also pointed out that the Sheriff's text on summary applications and suspensions stated the law as at 14 July 2000 and so clearly was prior to 2002 when the 1991 Act had been amended.

 

57.         So far as the second note issued by the Sheriff was concerned this had been after a hearing on expenses which Mr McKenzie had attended personally. It appeared that the Sheriff then had been willing to engage in a discussion about the implications about Cain v McColm but Mr McKenzie had declined to do so and he reminded me that in lodging the Note of Appeal the Appellants had not requested a note.

 

58.         As to the issue of expenses both parties had been agreed at the hearing on expenses that it was competent to award expenses and accordingly no submissions about this had been made. The Sheriff had made no comment about the issue of competency of expenses in his first note.

 

59.         The Appellants accepted that there must be a continuing act over a period in the past which might or might not be continuing to the present. The continuing failure to make payment of one instalment might well fall within the contemplation of the 1991 Act if the debtor failed to pay a particular instalment for a particular period. The debtor might well refuse wilfully to make payment of different sums at different times and/or be culpably negligent in failing to make payment of others.

 

Discussion

60.         There are, as the Appellants proposed, two important issues in this appeal. The first and perhaps more important question is, was the Sheriff right or wrong in his approach to the time at which the court should determine whether or not there has been wilful refusal or culpable neglect on the part of the liable person in his failure to make the payments due under the liability assessment? The Sheriff's view - according to his first finding in law - was that he should look at the position of the circumstances to be examined in the inquiry as they were at the first calling of the summary application or shortly thereafter. In this particular case, because of the number of continuations of the application, a significant period had elapsed since the first calling date, some 16 months. The Sheriff excluded consideration of what had happened in that period partly because - at least as I understand his judgement - the continuations were incompetent but, separately and in any event, because the appropriate date at which he should determine the issues in the inquiry, having regard to the requirement that the application be dealt with "summarily", was one at or very close to the first calling date.

 

61.         The second issue, which bears upon the first, is whether he is right to conclude that continuations of summary applications of this type are incompetent. I say "of this type" because as I understand his reasoning, it is continuations of a summary application for civil imprisonment that he holds incompetent in the light of Cain v McColm. His reliance upon that case also appears to me to influence his reasoning that the proper time for determination of whether there has been wilful refusal or culpable neglect is at or about the date of the first calling.

 

62.         As I understand it this approach is unique so far in Scotland. The Appellants' solicitors have handled all such cases in Scotland and have lodged copies of all written judgements bearing upon these matters. None consider the issue of competency of continuations of applications of this type nor the date upon which the inquiry should focus. All have had such continuations and all have focused on the date of the inquiry as the date at which the determination should be made. That, of course, in itself is not a basis for saying the Sheriff is wrong nor did the Appellants suggest that. Their reference to these cases was partly to explain why they had been taken aback by the Sheriff's approach when it emerged only in the course of the proof.

 

63.              It appears to me that the Sheriff's view is significantly influenced by his consideration of Cain v McColm and the principle he derives from that case which, as I understand his judgement, is that applications for civil imprisonment should be dealt with summarily as a result of which continuations of such applications are incompetent. That is what Cain v McColm said. Furthermore, as a consequence of that approach, the date on which the mandatory inquiry under section 39A of the 1991 Act should focus was the first calling.

 

64.              The Sheriff quotes extensively from Cain v McColm but I propose to quote only the opinion of the Lord President:

"But another objection was stated to the Sheriff's interlocutor of a very different kind and quality. The interlocutor complained of, which contains a warrant of imprisonment, was pronounced upon 24th March 1892. That warrant was granted upon an application for summary imprisonment presented upon 3d September 1891. Now consider the procedure contemplated by the statute in dealing with applications for warrants for imprisonment as shewing their serious and peremptory nature. It is careful to provide that they "shall be disposed of summarily and without any written pleadings." (my emphasis)The Sheriff here, taking up consideration of the complaint upon 1st October 1891, continued consideration of it until the lapse of 12 months from 5th February 1891. That is, he dealt with the case by saying he would resume consideration of it after the lapse of four months. I do not think he was warranted in so dealing with the matter, or that was a proper way to treat an application for warrant of imprisonment. If a proper case had been made out before him for granting the warrant, he should have granted it at once, after satisfying himself that the debtor had no sufficient excuse for not paying. As he did not grant warrant, it is plain that he did not consider the circumstances then justified his complying with the application. But then he seems to have made the conjecture that in four months the circumstances might justify the granting of the warrant, and he continued the cause accordingly. That is a somewhat odd way of summarily disposing of such an application, and I think it was an incompetent way. The Sheriff might no doubt have continued the cause for a few days to give the debtor an opportunity of explaining his position. But the long continuation is fatal to the respondent, for it shews the Sheriff thought the warrant of imprisonment would not be justified by the facts as they then stood. His expectations as to a future were entirely speculative; and I do not think it right to keep a possible warrant of imprisonment hanging over a debtor's head for four months. There being no grounds for the warrant at the time, the application should have been dismissed. If the debtor's circumstances altered, the respondent could have presented a new application. That would entail none but the most infinitesimal trouble or expenses upon the respondent."

 

65.              In my view the Sheriff led himself into error by relying on a case which deals with a procedure established under an Act now no longer applicable to summary applications for civil imprisonment under the 1991 Act. Prior to 2 April 2001 such applications under the 1991 Act were made in terms of the 1882 Act by the statutory device (sub-sections (13) & (14) of section 40 of the 1991 Act) of declaring that sums due under a liability order were equivalent to decrees for payment of aliment and, as such, the Secretary of State was to be regarded as a creditor for the purposes of section 4 of the 1882 Act. That last section sets out the procedure for any such application. Since 2 April 2001 the procedure for such applications no longer refers to the 1882 Act. The procedure is now dictated by the 1907 Act (sections 3 and 50) and the 1999 Rules - and by them alone - wherein the Sheriff has a very wide discretion as to the procedure he adopts - Rule 2.31 - subject only to the constraint that it must not be inconsistent with section 50 of the 1907 Act. Section 50 specifically contemplates, without limit, diets subsequent to the first calling. In my view those two provisions mean that continuations of summary applications including those of the type in this case cannot be incompetent. They may be undesirable but that is an entirely different matter.

 

66.              I do note that in his own textbook on the subject of summary applications the Sheriff, at paragraph 6-16 (page 68) in dealing with summary applications for civil imprisonment under the 1882 Act and under reference to Cain v McColm in a footnote, says,

"The sheriff may continue the application for a short period for settlement but the practice of lengthy or frequent continuations in this regard is discouraged"(my emphasis).

 

That is not quite the same as saying incompetent. I accept the case to which he refers uses that word in relation to such continuations.

 

67.              In my view there are very significant differences between the procedure and requirements laid down in the 1882 Act for applications for civil imprisonment for non-payment of alimentary debt and the current provisions in the 1991 Act and the rules of the 1907 Act and 1999 Act of Sederunt. Firstly, the criterion under the 1882 Act entitling the creditor to the remedy is a failure to pay a sum due under a decree for aliment within the days of charge. Secondly, the failure is presumed to be wilful unless the contrary is proved by the debtor. Under the 1991 Act the burden of proof is reversed and it is for the creditor to satisfy the court that the failure has been wilful or amounts to culpable neglect. The period to which the court has to have regard commences with the assessment of liability and ends, at the earliest, with the date of the summary application - and, in my view, ends at the date of the mandatory inquiry. That clearly means that the court may view some periods of non-payment as wilful or otherwise, some as evidence of culpable neglect and others not so all dependent on the circumstances which emerge in any inquiry under the Act.

 

68.              These two differences alone provide reason why the principle derived by the Sheriff from Cain v McColm is not apt for 1991 Act applications. Under the 1882 Act the test was simple. Had there been non-payment after expiry of the days of charge. If so, the presumption being that it was wilful on the part of the debtor in the absence of any contradictor, the sheriff could immediately impose imprisonment. This simplicity enabled the sheriff to deal with such applications "summarily without written pleadings".

 

69.              There are other differences. Thirdly, the 1991 Act expressly contemplates the threat of imprisonment "hanging over the debtor's head" whatever the view of the judges may have been in the 19^th century. Section 40A(1)(b) empowers the sheriff to "fix a term of imprisonment and postpone the issue of a warrant until such time and on such conditions (if any) as he thinks just." What this demonstrates, in my view, is that the purpose behind the 1991 Act is not to impose imprisonment on debtors for their failure to make payments due under liability orders but rather to encourage such debtors to meet their liability for the maintenance of children. As the preamble to the Act says,

"An Act to make provision for the assessment, collection and enforcement of periodical maintenance payable by certain parents with respect to children of theirs who are not in their care; for the collection and enforcement of certain other kinds of maintenance; and for connected purposes."

 

The Respondent's counsel referred to the case of R(Kehoe) v. Secretary of State for Work and Pensions [2005] UKHL 48, [2006] 1 AC 42 in his submission as a case where the purpose of the 1991 Act had been considered. What that case makes clear is the Act establishes a nationalised scheme for the making of maintenance assessments (aliment) for children and its collection from liable persons. The only party empowered to make such collection was the Secretary of State, now the Commission for Maintenance & Enforcement. Since 2 April 2001 one of the powers of enforcement is an application for imprisonment or the imposition of an order of disqualification from driving. That second alternative is, of course, also a further difference in summary applications made under sections 40A and 40B. The procedure is entirely encompassed now within sections 40A and 40B of the 1991 Act and the provisions for summary applications in the 1907 Act and 1999 Rules. It is not a purpose of the 1991 Act to impose imprisonment or disqualification but to make those penalties available to the Commission - subject to the discretion of the court - for the purpose of collection of sums due under maintenance assessments.

 

70.              Another difference under the present scheme is that there is specific provision allowing a debtor who has been imprisoned or disqualified to purge the failure for which the penalty was imposed by making payment. (Section 40A(6) and 40B(5)).

 

71.              A further difference is the extent to which written pleadings are now used. The 1882 Act specifically directed that the application was to be disposed of summarily and without written pleadings. A glance at the Sheriff's text on Summary Applications, Chapter 30, well demonstrates that that is no longer the case. In addition the 1907 Act requires a written judgement. The summary application is to be commenced by an initial writ. It is no longer incompetent for the sheriff to order answers since the instruction in section 4 of the 1882 Act no longer applies. Indeed, in view of the matters to be the subject of the mandatory inquiry under section 39A, it is more likely than not that the sheriff will order answers. Indeed in the present case a Record was made up. Furthermore, in view of the requirement that the liable person be present for the inquiry, there is clearly the possibility that the inquiry may be some time ahead. Another case in which I am issuing judgement in an appeal - CMEC v Davies B341/07 at Dumfries - has a history of continuations whilst the CMEC endeavoured to trace and effectively cite the defender. The requirement for the presence of the liable person at the inquiry is itself a further difference from the 1882 Act provisions.

 

72.              There is, on the other hand, a similarity. The 1882 Act directed the sheriff "to dispose of the application summarily". Section 50 of the 1907 Act directs the sheriff to "summarily dispose of the matter". That direction is not confined to summary applications for civil imprisonment. The Lord President in Cain v McColm drew attention to the words in the 1882 Act when taking the view that the continuation allowed by the sheriff was incompetent. I assume that what was done by the sheriff in Cain was not done of consent of parties or at least not with the consent of the debtor. There is no suggestion in the report that either party sought the course adopted by the sheriff. The test to be applied by the sheriff in determining whether civil imprisonment was open to him was a simple one under the 1882 Act. It was open to the sheriff in the event of non-payment within the days of charge, the onus then being on the debtor to show it was not wilful. Under the present scheme it is for the applicant to show wilful refusal or culpable neglect - the latter being a new concept and so, a further difference. A considerable period of time may require to be examined rather than just the days of charge. All of these factors appear to me to qualify the term "summarily" in section 50 of the 1907 Act.

 

73.              It seems to me that the differences are so significant that the case of Cain v McColm is no longer relevant to applications for warrants for civil imprisonment under section 39A. The principle derived by the Sheriff from Cain v McColm is no longer apposite. This in no way qualifies the right of the sheriff to control progress of the application but it is to be done as an exercise of discretion rather than an issue of competency. Having regard to the purpose of the 1991 Act it seems to me quite legitimate for the sheriff to consider continuations of the application in an effort to secure payment without the necessity of imposing disqualification or imprisonment. How long or how often is a matter to be determined by the sheriff and, as in the case of Secretary of State v Martin, the sheriff may eventually decide enough is enough and direct that an inquiry be held forthwith. Indeed the sheriff may well decide it is preferable that an inquiry should be held as soon as possible after the first calling and, if satisfied that there has been wilful refusal or culpable neglect, impose one or other of the penalties but suspend its imposition subject to conditions reflecting some agreement between parties about a payment scheme. But I do not think he is obliged to do that as a matter of competency. Indeed, if the sheriff thinks that this latter approach to such applications is preferable, then, even in the face of a joint motion to continue the application to monitor a payment arrangement, he may, in exercising control of the progress of the application, order the inquiry to take place. It may be difficult to characterise such an approach as a wholly unreasonable exercise of his discretion.

 

74.              The Sheriff in his judgement did not consider what happened after the first calling relevant to his inquiry because, in his view, the proper date was the first calling or, at least a date very close to that and certainly not months or years ahead. I note the proof fixed eventually in this case was some 5 months ahead of the date it was fixed. That presumably was a reflection of pressure of court business. The 1991 Act directs the sheriff to inquire into, amongst other matters, "whether there has been (my emphasis) wilful refusal or culpable neglect" on the part of the liable person in respect of his failure to pay any sums due. The use of the "present perfect progressive tense" as the Appellants' solicitor described it, clearly allows the court to look at the circumstances from when the assessment was issued up to the date of inquiry. There is nothing in the Act to restrict the period to one ending at the time of application. The Sheriff, in his first finding in law states,

 

"the defender is liable to imprisonment......if, on the date the summary application first calls ... , the defender was (my emphasis) wilfully refusing..."

 

He uses a like tense in his second finding in law. In my view, his use of that tense is not in accordance with the test set out in the 1991 Act which, as the Appellants correctly proposed, was one which required the court to consider the whole past conduct of the defender and his conduct at the time the test is applied to determine whether he "has been" wilfully refusing or culpably neglecting to pay. It can hardly have been the intention of the legislators to restrict the inquiry to a date which might be months beforehand to determine whether the debtor needs a driving licence or what his means might be. It is plainly the immediate or current position that matters.

 

75.              The particular circumstance which triggered the entitlement of the creditor to petition the court for civil imprisonment under the 1882 Act - the failure to pay within the days of charge - is one readily established and must have preceded the making of the application. There was no provision for purging that save that the sheriff, in the exercise of a discretion, might not grant the prayer of the petition if payment was made subsequent to the days of charge and before the petition was heard. A liable person may have paid some parts of the sums due at various times but still not paid others. Inquiry must be held to establish the facts of non-payment. If continuations are competent before the inquiry is carried out by the sheriff - and in my view such continuations are competent - then there may be further circumstances bearing upon the issue of payment or non-payment, eg., failure to keep to an agreed scheme. If both parties agree to such continuations - and the sheriff in the exercise of his discretion allows them - then there is no prejudice to the right of the debtor to have the matter determined "summarily" or to the right of the creditor to make further applications since what the court has done has been with their consent. If either party opposes such continuation then it is difficult to see how the sheriff could do other than fix a date for an inquiry.

 

76.              In all these circumstances I am satisfied the appeal should be allowed and the Sheriff's interlocutors recalled. I am also satisfied the Sheriff was wrong to find the continuations incompetent and to have disregarded what occurred after the date of the first calling. In my view, the debtor's failure to adhere to a payment agreement after the application was made is a relevant factor to which the sheriff should have regard. What weight or significance he attaches to it is a matter for the sheriff. I have directed the Sheriff Clerk to place the cause before a different sheriff simply because the Sheriff did reach a view on wilfulness and/or culpable neglect and it would not be in the interests of justice for him to have to revisit this in the light of the changed circumstances.

 

Other matters not essential to the appeal

77.              Counsel and the Appellants' solicitor were surprised that the Sheriff issued a second Note in which he chose to comment on the grounds of appeal. It is described by the Sheriff as a Note to his interlocutor of 26^th November, 2009 in which he determined liability for expenses. In so far as the Note deals with the issue of expenses in my view it was open to the Sheriff so to do. Furthermore he was at liberty in his first Judgement and Note to alert parties to the possibility that he might regard an award of expenses as incompetent so that they might be prepared to address him on that.(para 123 of his first Note). However, he then added what was, in effect, a critique of the Note of Appeal and further argument in support of his decision. In my view that was, at the very least, simply not appropriate. There was no request in the Note of Appeal for a Note. This is hardly surprising since the Sheriff had, in fact, already issued a comprehensive judgement. It is the responsibility of the judge when issuing a judgement on the merits of the case to fully explain his reasons in that judgement. In the format used in the Sheriff Court in Scotland that requires the sheriff to set out his findings in fact (where appropriate), perhaps mixed findings in fact and law and his findings in law. He may than add a Note explaining why he has reached these findings. Thereafter, his duties are finished - unless there is a reserved matter, such as expenses as was the case here. Had there been no reserved matter and the judgement had been appealed there would, of course, have been no opportunity to add such a Note. It is not the responsibility of the sheriff to support his own judgement. That lies with the Respondent should he choose to do so. It is for the appellant, in any event, whether opposed in the appeal or not, to persuade the appeal court that the sheriff was in error. I hesitate to call what the Sheriff did incompetent in that there was an effective interlocutory judgement on the issue of expenses but I would expressly discourage the practice of commenting on a Note of Appeal in civil matters save where appeal is by way of Stated Case or unless the sheriff is invited by the appeal court to add further explanation or the cause remitted to him for some other purpose.

 

78.              It may be the Sheriff felt some responsibility to comment on the issue of notice to parties about his line of thought at the time of submissions since that is expressly raised in the Note of Appeal. However, if I had considered it necessary I could have remitted the matter to the Sheriff to add a Note about that matter - and that matter alone. As it happens the issue is no longer of any significance in view of my decision on the merits of the appeal. The Respondent's counsel - in a submission that the Sheriff had done all that was necessary - drew attention to the responsibilities of a judge who notes what he regards as an incompetency or intends to rely upon an authority not canvassed before him by parties. They are more than adequately described in paragraphs 17.28 and 17.29 of MacPhail's Sheriff Court Practice (3^rd. ed.). If an agent does not feel adequately prepared to respond to such an intervention by a judge then he or she should ask for an adjournment - even a short one - to enable proper consideration and submission to the court. The granting of such an adjournment remains within the discretion of the sheriff.

 

Expenses.

79.              Parties agreed expenses should follow success and so I have found the Appellants entitled to the expenses of the appeal as taxed.