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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

 

Lady Paton

Lady Smith

Lord Bracadale

 

 

[2013] CSIH 27

XA119/12

 

OPINION OF THE COURT

 

delivered by LADY SMITH

 

by

 

AHDIEH YAZDANPARAST

 

Pursuer and Respondent;

 

against

 

AHMED YAZDANPARAST

 

Defender and Appellant:

 

_______________

 

 

Act: Macpherson; Morton Fraser LLP ( for Blackadder and McMonagle, solicitors, Falkirk)

Alt: Speir; Francis Gill & Co

 

9 April 2013

 

Introduction

[1] The parties are spouses. The wife is the pursuer in an action of divorce which is being litigated in Stirling Sheriff Court. Her husband, the defender, does not want to be divorced. There is evidently considerable tension between them. The defender has been excluded from further participation in the litigation and has been found to have been in contempt of court, in terms of interlocutors dated 28 February 2012. He appealed, unsuccessfully, to the Sheriff Principal and he now appeals to this court.

[2] We propose to continue referring to parties as pursuer and defender.

 

Background

General

[3] The parties' financial circumstances are, on the averments, not straightforward. The relevant assets include a number of heritable properties and business interests. Each claims financial provision from the other. There are indications of attempts having been made to settle their respective claims which have, thus far, been unsuccessful. There are also indications of the defender's conduct - some of which can only be described as bizarre - having caused considerable distress, anxiety, and upset to the pursuer. For example, on 10 May 2011, the sheriff granted interim interdict against molestation in what might be described as the usual terms but only refrained from going on to interdict the defender from :

".. crying, sobbing, wailing, howling, shouting or otherwise issuing forth exclamations of distress, threatening to commit suicide or taking any steps showing or tending to show that he has attempted to do so"

 

because the defender gave an undertaking to the court to refrain from such conduct, the import of that being that he accepted that he had been behaving in that manner.

 


Initial Proceedings before the Sheriff

[4] The action was raised in October 2010 on behaviour grounds. The parties had separated on 10 August 2010. The defender was initially represented by Mr Pollock of Messrs Pollock Somerville, solicitors. Mr Pollock continued to represent him, preparing and lodging pleadings, appearing in court and seeking to achieve settlement on his behalf, until late April 2011, when he withdrew from acting for him.

[5] The defender then instructed Mrs MacLeod of Messrs Anderson Strathern, solicitors. A proof was fixed for 25 October 2011 but was discharged on the motion of the defender. A new proof date was fixed for 24 January 2012. On that day, parties were, initially, allowed a generous amount of time for discussion to see whether settlement of their financial claims could be reached. When the case called for proof later , Mrs MacLeod made a motion for discharge of the proof. No prior notice of that motion had been given. The principal reason appears to have been that the defender wanted to introduce a new claim for an order for the transfer to him of the pursuer's share in one of the parties' jointly owned heritable properties. The motion for discharge was refused and the proof began. Evidence was led but not concluded and the proof was adjourned until 27 February 2012.

[6] By letter dated 13 February 2012, Anderson Strathern withdrew from acting for the defender. A peremptory diet was, accordingly, fixed for 21 February 2012. The defender appeared at that diet. In relation to that hearing, at paragraph 11 of the sheriff's note, he states:

"On 21 February , the defender appeared personally. He intimated his intention to proceed with his defence. I specifically raised with him whether he expected to be in a position to proceed at the forthcoming proof diet. He indicated that he was "getting a new lawyer" and intended to proceed. I clarified with him that he was not making a motion to adjourn the proof and he confirmed that he was not. (Mr Dickie intimated that were any such motion to be made, he would oppose it). On that basis, I continued that case to the adjourned proof diet. I told the defender to seek legal advice quickly."

 

The Continued Proof Diet: 27 February 2012

[7] The diet of continued proof called at 10 am on Monday 27 February, two weeks after Mrs MacLeod had withdrawn from acting and six days after the peremptory diet. The defender had instructed a new solicitor, Mr Kelly of Messrs Mann, solicitors, but not until Thursday 23 February. He did not explain why it had taken until then for him to instruct a new solicitor. From the terms of paragraph 12 of the sheriff's note, it seems that Mr Kelly had some, though not all, of the papers and that whilst he was not fully cognisant of the whole case, had a reasonable grasp of the issues. He indicated, however, that he wished more information and that he did not feel that he was able to advise the defender or conduct the proof without more financial information. Ultimately the position was, as summarised by the sheriff, that the defender did not have all the evidence he needed and he wished to amend. The motion was opposed and refused because, as the sheriff explains at paragraph 16 of his note:

On receipt of that decision, Mr Kelly withdrew from acting for the defender. Before he did so, he assured the sheriff that the defender understood that his withdrawal would not necessarily mean that the hearing would be put off.

[8] The defender then asked for the hearing to be adjourned. His motion was refused. What happened next is explained by the sheriff in the following terms:

" 19...... The defender was plainly unhappy with my decision and began to argue with me in a ranting way. I had to tell him somewhat forcefully to be quiet and to sit down and to warn him as to his behaviour. He eventually complied.

 

The Potential Contempt

 

20. Mr Dickie re-commenced his examination - in - chief and the defender sat quietly for a few minutes. He then unbuttoned his collar button; began to breathe loudly and rubbing his chest. A few moments later he began screaming and wailing.

 

21. I waited for a short time to see if this would subside but it did not, so I asked him on several occasions to calm down and to listen to me. He persisted shouting (unintelligibly) in a mixture of English and what I took to be Persian."

 

The sheriff then had a police constable brought into court. The police constable stood close to where the defender was sitting. The sheriff asked him to compose himself and gave him time to do so. However, as the sheriff records:

"22.......He continued to shout and wail loudly and at one stage hit his own head with his own open hands; lurched forward to bang his head on the table in the well of the court; and slapped the table with his open hand."

 

The sheriff, accordingly, asked the police constable to remove the defender from the court. The defender refused to co-operate. He fell to his knees. He was removed from the courtroom to the public tea-room, where he continued to shout and wail to the extent that he was disturbing a jury trial taking place in another courtroom.

[9] The sheriff, having reflected, considered that the defender's behaviour might amount to a contempt of court and he, accordingly, instructed (a) that he be detained over the lunchtime adjournment, and (b) that he have access to legal advice from the duty solicitor. The sheriff provided a written note of what he had seen and heard happen in court for the assistance of the solicitor who was to represent the defender. It was handed to Mr McCready, solicitor, who agreed to represent him.

[10] At 2 pm, the defender appeared before the sheriff again and was represented by Mr McCready who stated that the defender was under stress, that he was not feeling well, that he was cold and shivering, that he had a history of depression and anxiety and that he did not feel able to deal with his case that day. Having heard that explanation the sheriff arranged for the defender to be seen by the police doctor (Dr Oliver Frenschock). He prepared a note which was handed to the doctor in which he asked him to advise: whether the defender was suffering from a mental disorder, whether he was capable or incapable of managing his own affairs and/or of giving instructions for their management, whether he considered that the defender's earlier conduct in court was attributable to mental disorder and whether, in particular, his behaviour was voluntary or involuntary?

[11] Dr Frenschock examined the defender and reported to the sheriff, in writing, at about 4.45pm. The terms of his report are rehearsed at paragraph 29 of the sheriff's note. At the end of the report, Dr Frenschock advised:

 

"In conclusion I feel that Mr Yazdanparast's behaviour might be explained by his apparent difficulty coming to terms (sic) and accepting the breakdown of his marriage.

He does not display any signs of mental illness and in my opinion he is in possession of his full mental capacities."

[12] That report was made available to Mr McCready and he discussed it with the defender, who was brought before the sheriff again. The sheriff decided to adjourn the matter of the defender's potential contempt overnight. The proof was also adjourned overnight. The defender was ordained to appear at 10 am on 28 February.

 

The Continued Potential Contempt/ Continued Proof: 28 February 2012

[13] At about 9.30am on 28 February, Mr Kelly, the defender's former solicitor, faxed the sheriff court to advise that the defender had telephoned him that morning advising that he was "unwell, had been vomiting all night and had arranged an appointment with a Dr Mullen at the Orchard Park Medical Centre." and that that appointment was due to take place at 11am.

[14] The proof and the contempt matter both called before the sheriff at 10 am. The defender was not present. The pursuer was present, as was her solicitor, Mr Dickie, who invited the sheriff to pronounce an interlocutor requiring the defender to provide a medical certificate, on soul and conscience, vouching his ill health, by 2 pm. The sheriff did so. The interlocutor was in terms which are replicated in the appeal print. They, in essence, required the defender to produce a medical certificate to the court detailing the nature and extent of any medical condition from which he was suffering, whether it prevented him from attending at court and participating in the proceedings and if so, when he would be fit to attend court to do so. That interlocutor was immediately passed to Scott & Co, Sheriff Officers who served it on the defender personally, at the medical centre.

[15] The defender at no time provided any such certificate. However, he appeared in the court building shortly prior to lunchtime and was advised to attend at 2 pm. In the meantime, a letter from Scott & Co was handed to the sheriff. It was in the following terms:

"....in accordance with your instructions our officer attended at Orchard House Medical Centre where Mr Yazdanparast was interviewed personally and became very emotional. Mr Yazdanparast asked our officer to explain the details of the Interlocutor to his Doctor claiming that he was not in a condition that allowed him to explain. Our officer went back into the medical centre and spoke to the Doctor who stated that he was unwilling to provide a medical statement as Mr Yazdanparast's condition does not stop him from attending court."

 

At 2 pm, the defender attended court. He insisted that he was unwell despite the terms of Scott & Co's letter being put to him. When asked where he had been at 10 am that morning, he said that he had been sitting in his shop. That is, he had been at work.

[16] The sheriff then had an email sent to the doctor who had seen the defender that morning, asking if he could confirm, in writing, what he had said to the sheriff officers. The doctor was not willing to send an email or fax; he was only prepared to send a written answer by post, possibly on account of data protection concerns.

[17] The sheriff proceeded with the hearing. He found the defender to have been in default by not attending at court at 10 am: see Ordinary Cause Rules ("OCR") para 33.37. He rejected the defender's explanation that his non-attendance was because he was unwell. In paragraph 49 of his note, he explains that he had seven separate reasons for doing so. In summary, they were:

[18] The sheriff also found the defender to be in default by not having produced a medical certificate, as ordered. We doubt whether that was an appropriate finding to make, given that the actual production of such a certificate was not within the direct power of the defender, but it was separate from and did not affect the finding of default by reason of non-appearance at the diet.

[19] The sheriff repelled the defender's pleas-in-law and allowed the cause to proceed as undefended by way of affidavit evidence. He pronounced an interlocutor to that effect. At paragraph 53 of his note, the sheriff expressly recognises that exclusion from proceedings is a draconian measure and explains why, under reference to eight separate reasons, in the circumstances, he considered that it was appropriate to opt for that course of action. In summary, those reasons were:

[20] The sheriff then found the defender to have been in contempt because of his persistent disruptive behaviour - which had been deliberate and persisted in despite warnings - on 27 February 2012. He pronounced an interlocutor to that effect. He imposed no sanction in relation to the contempt. After the defender had been advised of the sheriff's decisions he became verbally aggressive and alleged to the sheriff : "...he has barbecued me and now you barbecue me" . The "he" referred to was the pursuer's solicitor.

 

Appeal to the Sheriff Principal

[21] Having considered the details of what took place before the sheriff and his reasons for (a) finding the defender to be in default and allowing proof by affidavit evidence, and (b) finding the defender to have been in contempt of court, the sheriff principal refused the appeal.

[22] He concluded that it was not competent to appeal to him in relation to the finding of contempt: MacPhail Sheriff Court Practice para 2.25. We note that it was not and is not conceded that the sheriff principal was correct about that but it is not an issue which we require to determine since it is clear (and was not disputed) that it is competent to appeal to this court from a sheriff's finding of contempt.

[23] Regarding the sanction imposed for the defender's default - it being conceded that he had been in default - the sheriff principal considered that it was evident that there had been a serious and deliberate default by the defender and it was open to the sheriff, in the circumstances, to allow the action to proceed as undefended. Indeed, it was proper and appropriate to do so.

 

OCR 33.37:

[24] The provisions of OCR para 33.37 are contained in that part of the rules which relates to family actions and, insofar as relevant, are:

"33.37. (1) In a family action in which the defender has lodged a notice of intention to defend, where a party fails-

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

(b) to implement an order of the sheriff within a specified period,

(c) to appear or be represented at any diet, or

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

that party shall be in default.

(2) Where a party is in default under paragraph (1), the sheriff may-

(a) where the family action is one mentioned in rule 33.1(1)(a) to (h), (n) or (p), allow that action to proceed as undefended under Part II of this Chapter; or

(b) .........................

(c) ........................

(d) .................., or

(da) make such other order as he thinks fit to secure the expeditious progress of the cause; and

(e) award expenses."

 

Since the rule applies to family actions, the power to exclude a defender from further participation in the action applies as much to cases where the defences include a crave for an order for financial provision as it does to those where the defender seeks only to resist the pursuer's financial claims. To put it another way, it applies not only where a defender seeks to vindicate a defence but also where he seeks to advance his own financial claims.

 

Relevant Authorities

[25] Where, as in the present case, a defender is in default in terms of OCR 33.37(1), the observations of Lord Penrose, delivering the opinion of the court in the case of Fernandez v Fernandez (2007) SC 547, are pertinent. In that case, the defender in an action of divorce was in wilful default by not being present or represented at a diet. At paragraph 34, Lord Penrose observed:

"[34] ....The guiding principle is that the court should seek to do justice between the parties in the circumstances of the case. But where there is a prima facie defence the interests of justice will, in the absence of exceptional circumstances, militate in favour of giving the defender an opportunity to vindicate his defence and accordingly against granting decree by default. The issue remains one of discretion in all the circumstances of the case, however, and there is no rule that a defender must be allowed the opportunity to vindicate a prima facie defence."

 

[26] Awards of financial provision are regulated by secs 8 and 9 of the Family Law (Scotland) Act 1985 which provide, put shortly, that before the court can make such an award, it must be satisfied that it is (a) justified by one or more of the principles set out in sec 9, and (b) reasonable having regard to the resources of the parties. Notwithstanding the structured approach to awards of financial provision required by the legislation, much is left to the discretion of the judge.

[27] In the case of Ali v Ali (No 2) (2001) SC 618, an action of divorce from which the defender had been excluded and which had been allowed to proceed as undefended, by means of affidavit evidence, the sheriff's award of financial provision was challenged on the basis that the sheriff had not been provided with any supporting evidence at all, not even in the affidavits lodged on her behalf. Delivering the Opinion of the Court, Lord Hamilton (as he then was) said, at paragraphs 23 - 24:

"[23] It is plain that, whatever precisely the legal foundation for it, there has been since at least 1966, a well-established rule (at least of practice) that an application for financial provision on divorce should, except where parties are agreed, be supported by evidence and that such evidence should be considered by the judge or sheriff when deciding whether or not to grant the application. ............in all cases, except where there is agreement, it is appropriate that there be an evidential basis to warrant the award.

 

[24] Plainly there was no such basis before the sheriff when by his interlocutor of 3 January 1996, he made award of a capital sum of 70,000. It was submitted on behalf of the respondent that in the circumstances of this case that was unimportant. The reason why the sheriff did not have fuller information about the relevant capital assets was the petitioner's failure to obtemper the sheriff's orders. An affidavit by the respondent dealing with her financial claims would merely have repeated what was said by her on averment. We are unable to accept that submission. While his failure to disclose assets (including non compliance with court orders in that regard) was a matter to be taken into account, it did not of itself justify the grant of the financial application. Moreover not only does compliance with the rule ensure that the application is supported by sworn testimony, but, if the rule is properly followed, the affidavit should give a full, accurate and up to date explanation of why the amount claimed would, having regard to secs 8 and 9 of the 1985 Act, be justified and reasonable. In her averments in the sheriff court action the respondent put certain values on certain capital assets as at the date of the parties' separation (in 1989). She gives no explanation as to the basis for those figures (historical cost, professional valuation or otherwise) or how those figures were related to the resources of the parties at the date of the application (in 1994). A mere repetition on affidavit of the statement on averment might well, if properly considered, have made appropriate a requirement by the sheriff that the basis for the amount of the respondent's claim be more fully explained - at a By Order hearing or otherwise."

 

[28] Accordingly, in a case where undefended proof has been allowed but parties have not reached agreement on financial provision, it will not be enough for the pursuer who seeks an order for financial provision to rely on bald assertions. Further, such a pursuer would be well advised to lodge affidavits not only from herself but also from any witness whose evidence would have been relied on to support the relevant financial claims at a contested hearing, together with supporting documentation (such as valuation reports) and to have regard, in the presentation of that evidence, to any issues previously raised by the defender regarding the veracity or reliability of such evidence and/or the appropriateness of the pursuer's financial claims. Even where that has occurred, it will also be open to the judge or sheriff, before determining the claim for financial provision, to fix a hearing, By Order, so as to have the pursuer/the pursuer's representative, address the court orally in relation to any issues which arise from considering the case on the papers. Where there is a claim for financial provision which is not the subject of agreement and the defender has been excluded from the action - however appropriate that exclusion might have been - the court should not feel constrained from fixing such a hearing if, for instance, it has a doubt or doubts about the financial claims. It is not obliged simply to proceed on the basis of the ipse dixit of the affidavit evidence. The overall obligation remains to do justice between parties and in applying the relevant statutory provisions, assess the evidence in the light of the whole circumstances including the defender's averments and any documents lodged by him prior to his exclusion following default.

[29] Art 6 (1) of the European Convention on Human Rights provides:

 

"1. In the determination of his civil rights and obligations.......everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

 

[30] Where a party to a litigation alleges, before the relevant hearing, that his rights under art 6(1) will be breached at that hearing, it is only where it can be said that violation will be a "practical certainty" or an "inevitability" that the court may, at that preliminary stage, interfere: Transco Plc v HMA (NO. 2) 2005 1 JC 44.

[31] We were not referred to any authority which would support the proposition that art 6(1) entitles litigants to be present or represented at all stages of the proceedings which is not surprising given the line of Strasbourg authority to the effect that practical and effective access to the court need not necessarily involve participation in the proceedings (see: for instance, Ashingdane v United Kingdom (1985) A 93; H v United Kingdom (1985) DR 45).

 

Grounds of Appeal

[32] There appeared to be four aspects to the written grounds of appeal.

[33] First, that the sheriff's decision to allow the cause to proceed as undefended was disproportionate and unnecessary. The sheriff had failed to give sufficient weight to the defender's right to vindicate his claim for fair financial provision on divorce; there were alternative options open to him.

[34] Second, that the defender's case had been dismissed and he had thereby been deprived of his rights under art 6(1) of the Convention.

[35] Third, that it is competent to appeal to the sheriff principal against a finding of contempt but even if it is not, it should be reviewed by this court.

[36] Fourth, the sheriff had erred by not adjourning the proof on 27 February; the defender had no representation and was not in a position to represent himself.

 

Submissions for the Defender

[37] Counsel for the defender referred us to various aspects of the parties' financial circumstances in an effort, it seemed, to demonstrate that they were complicated and involved difficult issues such as whether or not the defender had an interest in an Isle of Man trust; the defender denies that he has any interest in that trust. We observe, in passing, that on the documents produced to us, he may have some difficulty in so doing given that the trust is said to be a "revert to settlor" trust where he is recorded as being the settlor and as being first in the list of beneficiaries. Counsel also referred to the fact that the pursuer based her claim on sec 9 principles which involved the court exercising a measure of discretion. The defender would now have no opportunity to challenge the pursuer's valuations. Insofar as some of the matrimonial assets were joint heritable property, there would have to be further procedure. There was a complication in that the pursuer was resident in the former matrimonial home with the benefit of an exclusion order that would fly off on divorce being granted. The defender was not satisfied that the pursuer had made full disclosure and he would not be able to pursue that matter further.

[38] As to the law, Mr Speir's submission was to the effect that, absent exceptional circumstances, it was not open to the sheriff to do as he did. Whilst the decision in Ali (No 2) demonstrated that the court would have a duty to have regard to the principles of the 1985 Act, that was no substitute for the defender being permitted to exercise his right to vindicate his claims.

[39] Regarding details of the sheriff's handling of matters, Mr Speir submitted that the sheriff had, wrongly, proceeded on the basis that the defender had not acted promptly to get a new solicitor after Mrs MacLeod withdrew from acting. Further, there were reasons that were explanatory of both her and Mr Pollock's withdrawals from acting which did not call for censure of the defender. He referred to reasons for their withdrawal which were not put before the sheriff or the sheriff principal nor were they vouched; we do not, in these circumstances, consider that we ought to have regard to them. Further, regarding Mr Pollock, whilst it was said that he withdrew because he was a criminal law practitioner and family law was not his area of expertise, if that was the reason or the only reason, it seems reasonable to expect that withdrawal would have occurred at a much earlier stage than it did; in particular, prior to the drafting of pleadings and engagement in efforts to negotiate a settlement.

[40] Regarding the defender's conduct on 27 February, it was unusual and unfortunate but he did not want to be divorced. Counsel sought to submit that Dr Frenschock did not provide a proper answer to the sheriff's enquiries of him but we cannot accept that that is fair. He may not have answered the sheriff's questions one by one but his conclusion was plain and it provided a clear response to the central issue that had been raised.

[41] Regarding 28 February, it was accepted that the defender was in default by not attending at court. It was also accepted that the various steps taken by the sheriff on both 27 and 28 February to make enquiries about the defender's state of health were appropriate from a pastoral perspective. The proof could, however, have carried on. One option was to use the power under s.12 of the 1985 to postpone determination of the claims for financial provision until a later date, restricting the proof at that stage, to the issue of divorce. The case had not been ongoing for very long. It was irrelevant that the defender had consulted three separate solicitors. It was irrelevant that there had been efforts to settle the case. It was accepted that the sheriff witnessed what happened in court but that had to be balanced against the difficult circumstances in which the defender found himself. The defender would suffer prejudice that was not outweighed by prejudice to the pursuer.

[42] Regarding the refusal to adjourn the proof on 27 February, Mr Speir accepted that the order pronounced was not a final interlocutor and that no application had been made timeously for leave to appeal against that interlocutor , as sec 27(d) and 28 of the Sheriff Courts (Scotland ) Act 1907 required. However, he understood that this court could review all prior interlocutors in an exercise of its supervisory jurisdiction.

[43] Mr Speir submitted that the defender's art 6(1) rights had been breached. He had been excluded from the process. It was consistent with a fair trial that a litigant be present or represented. That was implied in the right to a fair hearing. He referred - after the close of Mr Macpherson's submissions - to Clayton and Tomlinson at para 11.425. He did, however, accept that art 6 did not confer absolute rights.

[44] Regarding the contempt of court matter, he submitted that the sheriff had failed to consider whether or not wilful conduct had been established beyond reasonable doubt: Johnston v Johnston 1996 SLT 499.

 

Submissions for the Pursuer

[44] Mr Macpherson observed that the defender seemed to be saying that the sheriff had been bound to allow matters to go forward to a contested proof because orders for financial provision were sought. That was, however, to ignore the amount of discretion built into the relevant provisions of the 1985 Act. Indeed, it would be foolhardy of the pursuer to think that she could simply rely on repeating in an affidavit what was said in her averments, standing the decision of this court in Ali (No. 2).

[45] The issue was not whether or not parties' finances were complex. It was whether or not the sheriff's exercise of his discretion was plainly wrong. He submitted that it was not. He had exercised a discretion in refusing adjournment on 27 February 2012 (which could not now be appealed against) and in relation to his disposal after having made a finding of default which, in the circumstances, he was bound to make. He had not misdirected himself in law, he had not taken account of an irrelevant factor nor had he weighted the factors in a way which was demonstrative of error. The possibility of alternative ways of dealing with the default did not demonstrate that the sheriff had erred. He had, further, appropriately balanced prejudice - prejudice which was now, from the pursuer's perspective, greater as she had, in the meantime, continued paying the mortgage on the jointly owned former matrimonial home.

[46] Regarding art 6 ECHR, he submitted that lack of representation was not of itself a breach, nor was exclusion of the defender from the proceedings in circumstances such as had occurred in this case. Further, the challenge was premature: Transco.

[47] He, very properly, made no submissions in relation to the finding of contempt.

 

Discussion and Decision

[48] It was conceded on behalf of the defender, before the sheriff principal and before us, that the defender was in default by having failed to attend court at 10 am on 28 February. That was a concession that was well made in the circumstances, particularly given the sheriff's detailed and careful explanation of how and why he concluded that the defender's failure in that regard amounted to a relevant default.

[49] The sheriff was, accordingly, bound to consider whether to allow the action to proceed as undefended or to make some other order to secure the expeditious progress of the cause ( OCR 33.37(2)(a) and(da)), as was accepted by Mr Speir. Contrary, however, to his submission, the sheriff did not require to consider whether there were exceptional circumstances. The terms of the rule, rather, confer a wide discretion on a sheriff where a party is in default. Moreover, they make it clear that the serious or draconian step of excluding a defender from further participation in the litigation - whether or not he himself has a claim against the pursuer - is an option.

[50] The defender thus had the task of overcoming the high hurdle of demonstrating that in exercising that discretion, the sheriff had taken account of an irrelevant factor or failed to take account of a relevant factor or had reached a decision that could only be said to be perverse in all the circumstances.

[51] It is important that a judge explain why a discretion that is available to him has been exercised in any particular way. If he does not do so, it may be difficult to ascertain his reasoning process and that may, in turn, pave the way to a successful perversity challenge. The sheriff here, however, did not exercise his discretion without explaining himself. To the contrary, he engaged in a detailed and careful assessment of all the relevant circumstances. It was not suggested that he did not provide adequate reasons. Indeed, that is not a criticism which could possibly be levelled at him; in his commendably clear written reasons, he spells out exactly why he decided as he did.

[52] Ultimately, the challenge came to be that the sheriff had failed to take account of relevant factors and had taken account of an irrelevant factor: he had failed to consider alternative options, failed to appreciate that Ali (No. 2) did not demonstrate that prejudice to the defender would be minimised, and had had no basis for concluding that the pursuer would have difficulty in securing a loan if there was further delay. He also criticised the weight given by the sheriff to the pursuer's assertion that the action would have settled on 24 January had it not been for the defender's desire to delay matters.

[53] We are not persuaded that any of these criticisms are sound.

[54] The alternative options suggested by Mr Speir were that the sheriff could (a) have allowed the proof to continue with the defender participating or (b) have allowed the crave for divorce to be disposed of at that stage whilst postponing the determination of all other issues. The sheriff was not bound to follow either of these courses of action. We would have been surprised had he considered it appropriate to do so. The default was clear and deliberate. It followed on the defender having engaged in disruptive behaviour the day before. It was demonstrative of the defender being determined to delay the proceedings. It had adverse consequences on 28 February in that half a day during which progress could have been made was immediately wasted and then time required to be taken in the afternoon dealing with the defender's default. Sanction was, we agree, called for. As for the suggestion that resolution of the parties' financial dispute be postponed, that would have been wholly inappropriate. This was a dispute that was crying out for resolution. Nothing in the circumstances before the sheriff pointed to it being in the interests of either party for it to be put "on the back burner".

[55] Regarding the import of Ali (No.2), Mr Speir's submission came to be that the sheriff would not be obliged to consider competing evidence or submissions. We refer to what we say above regarding this matter. Whilst the defender will not now be entitled to lead evidence or make submissions, that does not relieve the court of its obligations to decide the pursuer's claims fairly having regard to the whole circumstances.

[56] As for the reference to borrowings, Mr Speir's submission does not properly reflect the sheriff's concern which was that both parties could be prejudiced in that regard.

[57] We cannot find fault with the sheriff's reasoning. The factors on which he relied were all relevant and together they amounted to a powerful case for determining on the sanction provided for by OCR 33.37(2)(a).

[58] Turning to the defender's attempt to appeal now against the sheriff's refusal to adjourn the case on 27 February, leave was not but should have been sought from the sheriff (Sheriff Courts (Scotland) Act 1907s.28(1)(d)). No explanation for that failure was given to us. We observe, furthermore, that we cannot find any cause to criticise the sheriff for having decided as he did. Again, he had a discretion and it was clearly within his powers to refuse the adjournment for the reasons stated by him.

[59] Turning to the finding of contempt, we find that there is no merit in the defender's argument. The sheriff did not need to state expressly that he was satisfied beyond reasonable doubt that the defender's conduct was wilful in circumstances where he set out in his reasons, very clearly and carefully, what he observed himself and the steps he took to ascertain that there was no medical explanation for the defender's disruptive behaviour - which, on the face of matters, obviously amounted to a contempt of court.

[60] We would add that the sheriff's handling and recording of the difficult circumstances with which he was faced on 27 and 28 February 2012 appear to us to have been exemplary. We commend, in particular, the staged approach which he adopted and the fact that, throughout, he took care to check whether the defender was in fact ill and in need of medical attention.

 

Disposal

[60] We will, in these circumstances, pronounce an interlocutor refusing the appeal and remitting the action to the sheriff at Stirling to proceed as accords.