SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW

F137/13

INTERLOCUTOR

AND NOTE

of

SHERIFF IAN HARPER LAWSON MILLER, Esquire, Advocate

after the debate

in the cause

FELICITY FULWOOD

PURSUER

against

ANDREW O'HALLORAN k/a SAPPER O'HALLORAN

DEFENDER

_____________________

Act: Fordyce, solicitor, Glasgow

Alt: Stevenson, solicitor, Glasgow

GLASGOW, 6 JANUARY 2014

The Sheriff, having resumed consideration of the cause, Sustains the defender's first plea-in-law to the extent of deleting from the Record, number 13 of process, the following averments of the pursuer: in article 2 of condescendence the sentence at line 5, "The pursuer gave up her employment to move with the deceased."; in the same article the sentence at lines 7-10:-"In December 2004 the pursuer sold her home and applied the balance of the net free proceeds of sale to meeting debt the parties had accrued and other living expenditure they had."; in article 4 of condescendence the sentence at lines 6 to 8, "As a spouse, the pursuer would have been entitled to receive the whole of the intestate estate in satisfaction of her claims under section 8 and 9 of the Succession (Scotland) Act 1964."; and in the same article of condescendence the sentences at lines 10-21, "She currently does not have the means to obtain alternative accommodation. In the event a transfer is not granted she would be rendered homeless. The pursuer sacrificed her earnings in the interests of the relationship with the deceased. She gave up work with a salary in excess of £20,000 per annum to move to Glasgow. In Glasgow her earnings have consistently been significantly lower. She was supported by the deceased in studying photography with a view to developing a new career and better income for the parties. Her business development was put on hold due to the deceased's illness. She gave up work latterly to look after the deceased. As a consequence of her financial disadvantage in the interests of the deceased and the relationship she no longer has a home or the ability to acquire one."; quoad ultra Repels the said plea: Appoints parties to be heard on further procedure and on all questions of expenses occasioned by the diet of debate and Assigns 22 January 2014 at 9.30 am within Glasgow Sheriff Courthouse as the date, time and place for the hearing.

NOTE

[1] This action called for debate on the defender's first plea-in-law. The plea as tabled challenged the relevancy et separatim specification of the pursuer's averments in the usual general terms and sought dismissal of the action. It was supported by his rule 22 note number 12 of process.

What the pursuer wants

[2] The action arises out of the pursuer's period of cohabitation with the late father ("the deceased") of the defender who is sued as his executor dative. It has been raised under section 29 of the Family Law (Scotland) Act 2006 ("the 2006 Act") because the deceased died intestate and domiciled in Scotland and the pursuer avers that she and he cohabited as if wife and husband between some unstated date in 1994 and his date of death on 2 October 2012. She seeks an order for the transfer to her of the whole right, title and interest of the deceased in the heritable property known as [address] together with its furniture and plenishings in so far as they form part of his estate and an order for payment to her of a capital sum of thirty thousand pounds sterling. In the event that the court declines to grant the transfer order and its attendant capital sum, she seeks a larger capital sum of one hundred thousand pounds sterling.

The scope of the debate

[3] The Rule 22 Note contained six paragraphs. The case proceeded to debate on all of them.

The submissions for the defender

[4] The solicitor for the defender began his submissions by setting out the intended scope of the debate. He said that despite the generality of the defender's first plea-in-law he was not asking for dismissal of the cause. Instead his attack was restricted to the particular averments of fact of which he had given notice in the rule 22 note. If his submissions in support of the plea presented in respect of each of the six paragraphs of the rule 22 note were accepted in full, then the effect would be to restrict significantly the scope of the subsequent proof in the cause that he accepted would have to take place.

[5] He then referred to the terms of section 28 of the Family Law (Scotland) Act 2006 ("the 2006 Act"). The section gave a former cohabitant the right to apply to an appropriate court for an order for financial provision when the cohabitants ceased to cohabit otherwise than by reason of death. He pointed out that the focus of attention in the section was on the twin concepts of economic advantage and economic disadvantage, and in particular that subsection (3) set out a very detailed statement of information that needed to be made in order to substantiate a case brought under the section.

[6] At this very early point in the submissions the solicitor for the pursuer interjected to say that he had been under the misapprehension in advance of the diet that the defender was seeking dismissal of the cause. Now that he had been made aware that was not so he asked for an opportunity to discuss the proposed attacks privately with the solicitor for the defender if he were prepared to do that, which he was. I accordingly adjourned briefly to allow the parties to have that discussion. In the event, whatever it contained, it did not secure a resolution and the debate proceeded.

[7] On resuming his submissions, the solicitor for the defender referred to the decision of the Supreme Court in the case of Gow v Grant [2012] UKSC 29; 2013 UKSC1, and founded in particular on the whole terms of paragraph [33] of the speech of Lord Hope DPSC. It is in the following terms:

"[33] In that context what sec 28 seeks to achieve is fairness in the assessment of compensation for contributions made or economic disadvantages suffered in the interests of the relationship. The wording of subsecs (3), (5) and (6) should be read broadly rather than narrowly, bearing in mind the point that the Scottish Law Commission made (report, para 16.18) that the principle in sec 9(1)(b) of the 1985 Act which these subsections adopt was designed to correct imbalances arising out of a non-commercial relationship where parties are quite likely to make contributions or sacrifices without counting the cost or bargaining for a return. As Lady Hale points out (see para 54), in most cases it is quite impracticable to work out who has paid for what and who has enjoyed what benefits in kind during the cohabitation, as people do not keep such running accounts and the cost of working things out in detail is quite disproportionate to the task of doing justice between the parties."

The solicitor for the defender took from this passage that the intention of section 28 was to achieve fairness in the assessment of compensation for contributions made where the cohabitation ended otherwise than by way of death.

[8] He then turned to section 29 which he said governed the action. He submitted that it was couched in entirely different terms from section 28. Subsection (3) set out the matters which the court was entitled to have regard to of which the fourth, (d), gave the parties and the court some discretion because it referred to "any other matter which the court considers appropriate". He conceded that that provision was broad enough to permit a pursuer who had brought an action under section 29 to invite the court to consider questions of economic advantage enjoyed by the deceased through the actions of the pursuer and economic disadvantage suffered by the pursuer through the actions of the deceased.

[9] He then dealt with the question of whether it was of any value to consider the record of the deliberations of the committee that had scrutinised the Bill before it became an Act for help as to what the intention of Parliament was in relation to claims brought under section 29. He answered that by referring to the decision in the case of Kerr v Mangan, a decision of Sheriff Principal Dunlop sitting in Perth Sheriff Court issued on 15 February 2013 (now reported at 2013 S.L.T. (Sh Ct) 102 and at 2013 Fam. L.R. 38). Under reference to paragraphs [13] to [18] inclusive of the decision he submitted that the approach there taken by the Sheriff Principal was the proper and accurate one and included paying regard to the observations of the then Deputy Minister for Justice narrated in paragraph [15]. The solicitor for the defender founded on those observations which were to the effect that the intention was to "introduce a degree of fairness into an unhappy situation, with provisions that are just and equitable." As for the mischief that the section was intended to address, that was to be found in paragraph [16]:

"When one looks at the provisions of section 29 in this context [to be found in paragraphs 14 and 15] it seems to me that the mischief which it was intended to address was that a cohabitant would receive no benefit from the estate of a deceased according to the law of intestate succession when, depending on the circumstances, it would be fair that they should. The only provisos qualifying that objective are that the rights of the surviving spouse or civil partner are to remain intact and the cohabitant should be no better off than if they had been a spouse or civil partner."

[10] Against that legal background the solicitor for the defender turned to the pursuer's pleadings and began his analysis by observing that although her case was said to be brought under section 29 of the 2006 Act, she had framed it as though it were based on section 28 because her averments of fact were concerned with issues of economic advantage and disadvantage. The two sections were completely separate one from the other and dealt with entirely different situations. The pursuer did not have to present her case in the way that she had but she had chosen to do that. He took no issue of relevancy with that, having conceded that it was open to her to advance questions of economic advantage and disadvantage under section 29, but submitted that however she proposed to present her case she had to provide fair notice of it before it could be allowed to proceed to proof. The essence of his attacks under paragraphs 1, 2, 5 and 6 of the rule 22 note was that the pursuer had failed to give the necessary fair notice of parts of her case because they lacked proper specification and under paragraphs 3 and 4 was for each an issue of relevancy. He then helpfully presented his criticisms of the pursuer's averments of fact in the same order as in the note.

Paragraph 1

[11] Paragraph 1 expressed the attack in the following terms:

"Other than averring that she had 'a salary in excess of £20,000 per annum' the Pursuer fails to provide any specification of her pre-2001 employment. Apart from stating that 'her earnings have consistently been significantly lower' in Glasgow she fails to give reasonable specification of her employment position after 2001. She is founding upon her having 'sacrificed her earnings' but has not given fair notice."

The averments attacked were in article 4 of condescendence 4 at lines 12-21 and article 2 of condescendence, line 5. The averments in article 4 are as follows:

"The pursuer sacrificed her earnings in the interests of the relationship with the deceased. She gave up work with a salary in excess of £20,000 per annum to move to Glasgow. In Glasgow her earnings have consistently been significantly lower. She was supported by the deceased in studying photography with a view to developing a new career and better income for the parties. Her business development was put on hold due to the deceased's illness. She gave up work latterly to look after the deceased. As a consequence of her financial disadvantage in the interests of the deceased and the relationship she no longer has a home or the ability to acquire one."

The averment in article 2 consists of the sentence:

"The pursuer gave up her employment to move with the deceased."

[12] The solicitor for the defender said that in article 4 of condescendence the pursuer averred that she had made three sacrifices while cohabitating with the deceased: (1) that she gave up work with a salary in excess of £20,000 per annum to move to Glasgow and in Glasgow her earnings had consistently been significantly lower; (2) that she put on hold her business development because of the illness from which the deceased suffered latterly in his life; and (3) she gave up her work latterly to look after the deceased. With regard to the last feature the solicitor for the defender said that although the pleadings did not make it clear he inferred that the period of time referred to was from and after March 2010 because in article 2 of condescendence the pursuer referred to deterioration in the health of the deceased from March 2010 onwards. For each of the three features the solicitor for the defender submitted that she had not averred enough to enable the defender to evaluate for the purposes of proof the sacrifices which she said she had made.

[13] In respect of the first feature the averment that she gave up work with a salary in excess of £20,000 per annum to move to Glasgow and in Glasgow her earnings had consistently been significantly lower lacked proper specification in respect that it gave no information as to who employed her, what she was employed to do or how she was employed in doing it, and what her employment prospects were over the period of time she cohabitated with the deceased. Moreover, she did not say how much she was earning when she moved to Glasgow. The absence of proper specification of these matters meant that the court could not draw any meaningful comparison as to what she might have expected to have earned in order to evaluate her claim that she suffered an economic disadvantage.

[14] In respect of the second feature she had not averred where her business would have gone if she had not placed it on hold. The nature of her business was not entirely clear but it might be said to have something to do with photography because of the averment that she was supported by the deceased in studying photography with a view to developing a new career and better income for the parties. Whatever business it was that she wished to develop the paucity of specification robbed the defender of a chance to investigate the claim and if allowed to go to proof also prevented the court from reaching an informed decision on the value of this feature of her claim.

[15] In respect of the third feature, she did not aver what she was doing, how much she was paid and what were the financial consequences to her of her giving up her work.

[16] For all three features the information required to give proper specification was information within her knowledge and could not be expected to be within the knowledge of the defender who was being sued as the executor-dative of the deceased. In asking for proper and adequate specification, the solicitor for the defender confirmed that he was well aware of what Lady Hale had said in that part of her speech in the case of Gow to which Lord Hope had referred when she had observed, at paragraph [54], that:

"It is in most cases quite impracticable to work out who has paid for what and who has enjoyed what benefits in kind during the cohabitation. People do not keep such running accounts and the cost of working things out in detail is quite disproportionate to the task of doing justice between the parties."

What the defender wished was sufficient specification for him to be able to know what the case was that was being made against him. He did not expect the pursuer to list every item of expenditure but he wish fair notice of what the pursuer was seeking and over what period of time.

Paragraph 2

[17] Paragraph 2 was in the following terms:

"The Pursuer has not given adequate specification of the amount of the net free proceeds of 49 Shakespeare Road, Preston, or how this was applied to her own and the deceased's debt and 'living expenditure'".

The averments attacked were those in article 2 of condescendence at lines 7-10:-

"In December 2004 the pursuer sold her home and applied the balance of the net free proceeds of sale to meeting debt the parties had accrued and other living expenditure they had."

[18] The solicitor for the defender submitted that she had failed to aver the sum she realised on the sale of her home and how it was that the balance of the net free proceeds of sale had been applied. She was presumably intending that this averment be used to support her claim that she had made a sacrifice while living with the deceased but the averment lacked essential specification. The information which could cure that defect was all within her knowledge and could not be expected to be in the knowledge of the defender. For assistance on the sort of quality of factual information which the solicitor for the defender submitted would be appropriate for a case brought under section 29, he referred to the reported decision in the case of Savage v Purchase 2009 S.L.T. (Sh Ct) 36, a decision of Sheriff Arthurson QC, sitting at Falkirk Sheriff Court and from that case took that the detail given in the findings in fact was a good indicator of the remarkable amount of detail which was placed before the court in that case and enabled the court to make proper and adequate findings in fact after proof. In particular, he instanced findings in fact which gave details of the period of cohabitation between the parties and of the gross incomes of both the pursuer and the deceased. Having reviewed the detailed information and endorsed its quality, he submitted that it was worthy of note that the Savage case did not include a claim for economic sacrifice while in the present case it did and the expectation of specification should be on a par with what had been available to the court in Savage. In the present case the averments were far less specific, which meant that an equivalent quality of evidence could not be presented at proof in the present case. He accepted that Sheriff Arthurson had not made any comment about the quality of evidence or what was required by way of fair notice and that had to be gleaned from the content of the findings in fact. In a similar vein, the solicitor for the defender returned to the decision in the case of Gow and made a similar submission that necessary specification was lacking in the present case by referring to the content of paragraphs [10] and [11] of the speech of Lord Hope and observing that the quality of specification was similar to that in Savage.

Paragraph 3

[19] Paragraph 3 was in the following terms:-

"The averments in condescendence 3a, 3f, 3g and 3h (and possibly 3e and 3k) concern the Pursuer in her capacity as a creditor of the deceased's estate. They do not relate to any claim that she might have in terms of Section 29 of the 2006 Act. There is a different basis in law. Said averments should found a separate crave, or craves."

The attack on each of the stated averments in article 3 of condescendence was on the ground of relevancy, that all of those averments were irrelevant because they were each concerned with debts that were due out of the estate of the deceased and should not be included in a claim under section 29.

[20] The challenged averments were:

For 3a, at lines 6-13:

"In October 2012 the pursuer paid the instalment due in respect of said mortgage of £455. A mortgage break was then granted by the secured lenders Nationwide Building Society to enable matters to be resolved, and for payment to be paid under the mortgage protection policy with Aviva referred to at paragraph (d) below. The pursuer has been making the monthly mortgage payments due of £455.00, since February 2013. She has paid the total sum of £3640 towards the mortgage debt due by the estate which sums are properly due by the estate."

For 3e at lines 29-30:

"to which the pursuer has been making payments to clear the debt."

For 3f at lines 32-34:

"to which the pursuer has been making payments to clear the debt. The sums paid total £31.66 which sum is properly due by the estate and should be reimbursed to the pursuer."

For 3g at lines 35-37:

"Said sum was paid in full by the pursuer on 5^th February 2013 and being properly due by the estate should be reimbursed to the pursuer."

For 3h at lines 39-41:

"under explanation that an initial minimum payment was made by the pursuer of £30.00 following the death, and said sum should properly be reimbursed to her from the said estate."

And for 3k the whole of the sub-article, found at lines 49-52:

"Outstanding mobile telephone bill of £28.04 and ongoing contractual liability. The pursuer has paid £30.44 towards said debt responsibility for which she has since February 2013 been taken over by the deceased's employers with whom the contract was operated."

Paragraph 4

[21] Paragraph 4 also raised the issue of relevancy by asserting that the "averments in Condescendence 4 anent the 1964 Act are irrelevant." The 1964 Act referred to is the Succession (Scotland) Act 1964 ("the 1964 Act"). The challenge was to a single sentence at lines 6-8 of the article:

"As a spouse, the pursuer would have been entitled to receive the whole of the intestate estate in satisfaction of her claims under section 8 and 9 of [the 1964 Act]."

The solicitor for the defender submitted that that averment was irrelevant because the pursuer rested her claim on section 29 and it formed no part of her case that she was or ever had been a spouse of the deceased. Even although its presence did not prejudice the defender the averment had no place on record.

Paragraph 5

[22] Paragraph 5 challenged two particular sentences in article 4 of condescendence in the following terms:

"The averments in condescendence 4 regarding the Pursuer's not having the means to obtain alternative accommodation being 'rendered homeless' etc. are lacking in specification. She does not state her current financial circumstances."

The challenge was to the sentences at lines 10-12 and 19-21:

"She currently does not have the means to obtain alternative accommodation. In the event a transfer is not granted she would be rendered homeless."

"As a consequence of her financial disadvantage in the interests of the deceased and the relationship she no longer has a home or the ability to acquire one."

The nature of the challenge was lack of proper specification causing a lack of fair notice.

Paragraph 6

[23] Paragraph 6 continued the challenge to the specification of the pursuer's averments:

"The averments in Condescendence 4 relating to the Pursuer's career and "business development" are lacking in specification."

The solicitor for the defender conceded that he had already dealt with matter this because it formed part of the submission that he had made under paragraph 1 in support of the second feature which attacked the lack of specification of lines 15 to 18.

The order sought by the defender

[24] In conclusion, the solicitor for the pursuer submitted that for all the reasons stated in his submissions the defender's first plea-in-law fell to be sustained to the extent requested and the case thereafter assigned to a diet of proof not a proof before answer.

Submissions for the pursuer

[25] The solicitor for the pursuer began his submissions by saying that the court could not sustain the defender's preliminary plea because it sought dismissal and the challenge to the pursuer's case was limited in scope and effectively was restricted to issues of specification. He was unable to vouch any authority for this proposition and contented himself with saying that it surely was a matter of common sense beyond which he could not go.

[26] He submitted that the pursuer's case rested almost entirely on section 29(3)(d) but her entire case rested on section 29. Beyond that he did not indicate which part or parts of section 29 the pursuer founded her case upon despite being asked to explain that. He submitted that the pursuer was offering to prove "any other matter which the court considers appropriate" and that each and all of the averments criticised by the solicitor for the defender were placed on record with that end in view. This was so because each and all fell under the definition of "any other matter".

[27] He submitted that the defender's stated concern about the lack of specification could have been met by him moving for a commission and diligence to obtain the information that would satisfy what he said were the demands of adequate specification but having made that submission he then withdrew it.

[28] With regard to the attack on relevancy in paragraph 4 he submitted that the challenged averment was relevant because in section 29(10) there was a reference to the 1964 Act. The averment was a marker for the court to take account of when making an order under section 29.

[29] With regard to the challenge to relevancy made under paragraph 3 he submitted that the averments relating to executory debts came under the heading of "any other matters" and the court could take account of any payment made after death. The court could not dispose of these averments at debate and they would have to hear the pursuer on these matters and then decide how to deal with them after proof.

[30] For all the remaining paragraphs 1, 2, 5 and 6 he said that the pursuer was content to take these matters to proof, that it was open to the court to make an award in terms of the craves in the record under section 29 and beyond that he had no further submissions to make.

[31] When asked thereafter if he wished to say anything about the reliance made by the solicitor for the defender on the decisions in the reported cases referred to in the course of his submissions the solicitor for the pursuer said curtly that the case law referred to section 28 and did not help.

Response on behalf of the defender

[32] The solicitor for the defender submitted that he had nothing that he wished to add to what he had already said.

Discussion

[33] The pursuer has brought her action under section 29 of the 2006 Act. The defender's criticism is that certain of her averments of fact are unsuitable to be admitted to proof in the respects and to the extent detailed in his rule 22 note and the submissions made in support of the note. The pursuer disputes the validity of all the criticisms made against her averments of fact. Four of the six paragraphs in the note raise the issue of specification and two of relevancy.

The pursuer's challenge to the defender's preliminary plea

[34] Before dealing with the defender's criticisms of the pursuer's averments I think it right to deal with the submission of the solicitor for the pursuer, made at the outset of his reply, that the formulation of the defender's preliminary plea prevented the court from sustaining it because it sought dismissal of the action and the solicitor for the defender had intimated at the start of his submissions that he did not seek that order but instead the deletion of certain of the pursuer's averments leaving what was left to proceed to proof but not proof before answer. If he is right then no matter how valid might be the criticisms made on behalf of the defender, the debate would achieve nothing beyond incurring expense to both parties.

[35] The solicitor for the pursuer was unable to present any judicial authority to support his proposition. I am not surprised by that. He said that his proposition rested on common sense. I disagree. I consider the proposition to be misconceived. The plea that was supported at debate is a general plea to the relevancy and specification of the pursuer's pleadings. It is permissible to sustain such a plea in part but not in whole. That is what the defender wishes me to do. The scope of the attacks made in the course of the debate all fall within the broad generality of the tabled plea. If I agree with the force of any of them it is open to me to sustain the plea to that extent. The plea is then spent and what is left of the generality of the plea will have no further part to play in the action. I would say that the very generality of the plea did not best focus the scope of the debate and it might have been better focused if the debate plea (or pleas) had specified either the particular passages or specific line of averments to be attacked with the request that they be should not be admitted to probation, but the defender's first plea-in-law is not inapt for the use made of it in the debate and the rule 22 note gave prior notice of the actual attacks to be advanced at the diet.

The relevant law

[36] Turning to the defender's criticisms I begin by dealing with the points of applicable general law that were raised in the course of submissions. I gratefully adopt the approach and reasoning of Sheriff Principal Dunlop in paragraphs [13] to [18] of his judgment in Kerr. The action in that case was brought under section 29 not, as submitted by the solicitor for the pursuer, under section 28. The legal analysis in the decision in Kerr is in point and to my mind includes a correct interpretation of the purpose of section 29 and the mischief that it was intended to address. In taking that view I agree with the submission on behalf of the defender in that regard. In particular section 29 is "a provision which is intended to confer rights on cohabitants in relation to the succession of a deceased as the long title to the Act suggests" (paragraph [17]). The "mischief which it was intended to address was that a cohabitant would receive no benefit from the estate of a deceased according to the law of succession when, depending on the circumstances, it would be fair that they should" (paragraph [16]).

[37] To that end the language of the section confers upon the court a discretion whether to make an order of the kind sought in the present case and directs, in subsection (2)(a) that it may do so "after having regard to the matters mentioned in subsection (3)". That subsection lists four such matters. The first three concentrate upon the net intestate estate of the deceased and may be described as relatively closely circumscribed in their scope but the fourth, (d), is much more widely drawn, requiring the court to have regard to "any other matter the court considers appropriate." This provision was doubtless enacted in order to give the court the best opportunity to carry out the intention of the Scottish Parliament, as noted in paragraph [15] of Kerr, to make an order in favour of the survivor in a cohabiting relationship if it would be just and equitable to do that, and that any such order would be fair and reasonable in the circumstances of the case. That intention had been explained, endorsed and applied earlier by Lord Hope in his leading speech in Gow for the purposes of a claim under section 28 and all the Supreme Court justices agreed with his analysis. The speech has much to say on the issue of fairness that is equally applicable to a claim brought under section 29. The case of Gow was before the Sheriff Principal in Kerr and he made use of it to explain and adopt for section 29 that same intention and intended equitable result. The same broad and general concept of fairness infuses the application of both section 28 and 29 and that is so even although the sections deals with different situations and sets of circumstances and each is accurately described in paragraph [18] of Kerr as a "free-standing, self-contained statutory innovation" under reference to the coinage of that description in the decision in the case of Simpson v Downie [2012 CSIH 74].

[38] Subsection (3) is extremely wide in its scope. Its precise and unequivocal terminology brings within its ambit the opportunity to present an exceedingly broad range of facts and circumstances that might be deemed appropriate in the particular circumstances of any given case. As a consequence, doubtless unintended, it makes it much more difficult, but not impossible, for a defender to challenge successfully at the stage of debate the relevancy of averments of the pursuer said to fall within subsection (3)(d) and makes it more likely that such a challenge could best be made within the confines of a proof before answer. No such difficulty could be said to attend a challenge to the specification of such averments on which subsection (3) as a whole is understandably silent.

[39] Such is the generous scope of subsection (3)(d) that the defender was correct to concede that it permitted a pursuer who had brought an action under section 29 to invite the court to consider questions of economic advantage and disadvantage when deciding whether to make an order under the section.

The defender's attacks

[40] I turn now to address the defender's several attacks on the pursuer's averments. Paragraphs 1, 2, 5 and 6 each dealt with an issue of lack of specification while paragraphs 3 and 4 each raised an issue of relevancy.

Paragraphs 1, 2, 5 and 6

[41] The defender's principal attack was on the lack of specification of a variety of averments of fact in articles 2, 3 and 4 of condescendence. The essence of the attack was the same for each: that the pursuer's pleadings lacked the essential specification that was required to give the defender fair notice of the pursuer's case. For that reason it is convenient to deal with all four paragraphs together. In any event there was considerable overlap between the criticisms expressed in paragraph 1 and 5 and the criticism in paragraph 6 fell wholly within the one made under paragraph 1.

[42] All four paragraphs raise the question of what is the appropriate degree of specification for a case presented under section 29 which avers economic advantage or disadvantage. Section 29 does not give any assistance and neither does any other provision of the 2006 Act. To assist me in trying to answer the question I was referred to the decisions in the cases of Savage and Gow. Neither gives a direct answer presumably because the reports follow proof in each cause, and any live issue of specification and in particular one of the kind that is raised in the present case would have been resolved before proof. I am left then to conclude that in the absence of any guidance from either statute or judicial decision what amounts to an appropriate degree of specification must be determined by an exercise of judgment made under reference to the facts and circumstances of each case.

[43] In this case I have carried out that exercise by gauging the demands of fair notice against the specific orders that the pursuer wants the court to make. There are two and they are presented in the alternative. The primary order is for the transfer to her of the whole right, title and interest of the deceased in the heritable property known as [address] together with its furniture and plenishings in so far as they form part of his estate and an order for payment to her of a capital sum of thirty thousand pounds sterling. Her secondary position, in the event that the court declines to grant the transfer order and its attendant capital sum, is to seek a larger capital sum of one hundred thousand pounds sterling.

[44] If the court makes an order, the effect of it will be to deplete the net intestate estate of the deceased. In order to do that the court will have to be placed in a position at and after proof to make a calculation of the total value of the financial provision to which the pursuer has proved an entitlement that is fair and reasonable and then in the exercise of the discretion conferred by section 29, decide whether to grant the order first sought which failing the second sought. The facts on which she seeks to persuade the court of that are contained within her averments. The factual ground on which she relies is an economic one that of the advantage to the deceased and the disadvantage to her that occurred as a consequence of actions and conduct that occurred during part of the period of cohabitation in the respects narrated in her articles of condescendence. To that end it seems to me that the degree of specification that she should be expected to aver is one that on the face of the record would enable both the court and the defender to calculate with reasonable accuracy, and on the assumption that she proves her entire case on the facts, how she can justify the craves which she wishes the court to give effect to after proof.

[45] As subsection (3) of section 29 makes clear, all her claims must be assessed by reference to the value of the net intestate estate of the deceased, and her entitlement to share in it, whether that be by way of a transfer of property or of payment of a sum of money or both, has to be assessed in the final analysis by way of an arithmetical calculation, which may be of some complexity. In order to support that entitlement she must give fair notice of how her claim is constituted to a degree that enables a dispassionate reader of the record for proof to be able to make a reasonably accurate assessment of what it amounts to in money terms. That does not seem to me to place too high a duty upon the pursuer and is intended to be mindful of and consistent with the observation of Lady Hale, which Lord Hope adopted, at paragraph [54] in Gow and quoted at paragraph [7] above.

[46] I find support for that conclusion in the degree of specification which is shown in those passages in both Savage and Gow on which the solicitor for the defender relied. The nature, extent and quality of the financial information given in each decision is far greater than that relied upon by the pursuer in the present action. I recognise that neither decision lays down or even attempts to lay down a test of adequate and proper specification but what they do give is an insight into the quality and degree of detail that the court in each case was both able and content to use to reach a decision on whether to make orders under section 28 that involve a similar type of assessment and with a similar end in mind, that of providing the pursuer with a financial provision assessed and then calculated on a just and equitable basis. By analogy I consider it right to apply a similar quality and degree of detail to the present case under section 29. That is particularly appropriate because all the information required to meet the demands of adequate specification are, or must be deemed to be, within the knowledge of the pursuer.

[47] Applying that approach I have concluded that the submissions of the defender are to be preferred in respect of each and all of the challenges made under paragraphs 1, 2, 5 and 6.

[48] The pursuer avers that she and the deceased cohabited for a period of approximately eighteen years. She does not found her claim on actions and conduct that occurred throughout that entire period but restricts it to the period beginning with the time when she and he moved from Preston to Glasgow because of the demands of his then work and the financial effects of that percolated throughout the decade or thereby that remained of their life together, and beyond. The problems with the specification of her claim begin with the timing of that move, because she avers no more specific date than that it was in or around 2001 so it is not even clear from that averment that they did move to Glasgow during that year and that is not entirely clarified by the averment in article 4 of condescendence that the Glasgow property is the only home that she has had since 2001.

[49] The importance of a reasonably certain date for that move lies in the fact that she avers that as a consequence of it she gave up her then employment and that brought about a significant reduction in her earnings from a salary in excess of £20,000 a year. I agree with the submission for the defender that fair notice requires her to aver much more than this, and that for the reasons submitted. To my mind she ought to aver what her employment was and with whom, what her salary was, be it gross or net, with greater precision than that it was in excess of £20,000 a year and to support her claim for economic disadvantage, what she reasonably anticipated on a broad approach she might have earned over the years covering the period of her claim.

[50] This degree of specification is particularly important because of her averment that "[i]n Glasgow her earnings have consistently been significantly lower". That averment immediately raises the question: lower than what and from what source or sources of income? She does not answer that in her averments. There is no fair notice of the extent of this aspect of the financial disadvantage she avers she suffered over the years of her claim. It seems to me that the requirements of fair notice should oblige her to aver at least the source of her earnings over the years of cohabitation since giving up work for the sake of the move to Glasgow, the period or periods during which she was engaged in that work, what she earned from it over the period of the claim and whatever use was made of it within the relationship between her and the deceased. This requirement would then give some workable context for the averment that the deceased supported her during their time living in Glasgow in studying photography with a view to developing a new career and better income for the parties. At present the duration of that support is indeterminate and its nature and extent is unstated, even in broad and general terms and that robs the averment of the essential degree of specification.

[51] The pursuer's intention of developing a new career was interrupted by the illness of the deceased. It is not entirely clear when that occurred but as the solicitor for the defender observed it was probably from March 2010 onwards. Whenever it was the consequence for her was that she gave up work at some indeterminate date in order to look after the deceased. On the assumption that the financial consequences to her of caring for the deceased until his death forms part of her claim that she has suffered economic disadvantage, and as pled that would seem to be the case, she gives no indication, even in general terms, of what in this regard she has lost financially up to the date of death of the deceased. Moreover, if for her claim under this head the consequences of giving up her work extend beyond that date, she gives no indication of what that disadvantage amounts to, and why.

[52] One other element of her claim arises out of the sale of her home which occurred in December 2004. She avers that she applied the net free proceeds for purposes that must be construed as advantageous for the life that the pursuer and the deceased together in Glasgow. I agree with the submission that she ought to aver the sum that she thus expended on the purposes which she avers. I am less persuaded that she ought to aver how it was that she applied the proceeds because what she does aver makes it clear that whatever the sum of the proceeds was in money terms it was all used to meet financial obligations incurred within and during the relationship that she and the deceased enjoyed. Having said that, the absence of an averment of the sum of the proceeds robs the whole sentence of essential specification.

[53] The averments challenged under paragraphs 1, 2, 5 and 6 of the rule 22 note amount to little more than an expression of her heads of claim. What is needed is averments that support her craves on which she wishes the court to give a decision by stating with adequate specification not only what she claims but why and over what period or periods of time since about 2001 for each head of claim. Her averments that lack essential specification do not support the conclusions that she invites the court to draw after proof, expressed in article 4 at lines 10-13 that currently she does not have the means to obtain alternative accommodation and that she sacrificed her earnings in the interests of the relationship with the deceased, and at lines 19-21 that as a consequence of her financial disadvantage in the interests of the deceased and the relationship she no longer has a home or the ability to acquire one.

[54] For the foregoing reasons I have concluded that the pursuer's averments that the solicitor for the defender challenged do not give fair notice of what the pursuer seeks and the averments fall to be deleted from the record.

Paragraph 3

[55] The attack on relevancy under paragraph 3 was in respect of the pursuer's averments in paragraphs 3a, 3e, 3f, 3g, 3h and 3k of article 3 of condescendence that narrated a variety of payments of what she describes as debts of the deceased that the pursuer had made after the date of his death. The challenge to their relevancy was that each of the claims was properly a charge on the estate of the deceased and for that reason had no place in a claim made under section 29. The pursuer's response to that was to say that the sums claimed under this general head of debts of the deceased paid by the pursuer fell within the scope of section 29(3)(d).

[56] I have concluded that the pursuer's submission is to be preferred. The challenge was to the relevancy of the averments and not to their specification. I accept that each of the debts averred in each of the sub paragraphs might well constitute a charge on the estate, but that fact alone does not prevent them from being taken into account in an action under section 29. That is because section 29(3)(d) confers a very wide latitude in favour of the court on what it may take into account. The wording adopted in the subsection makes that clear: it refers to "any other matter the court considers appropriate". The point in time when the court could be asked to make that decision in the exercise of the discretion given by that provision would normally be after proof or, more suitably, proof before answer rather than at debate unless the irrelevancy of the averments was patent. I cannot reach that conclusion in respect of this attack. Such is the width of the latitude given by the subsection that it cannot be said at the stage of debate that the averred debts could not be deemed a relevant matter that the court could be asked to construe as an appropriate element falling within section 29(3)(d) when considering making an order under section 29(2).

[57] Furthermore, and in any event, it seems to me that there is another reason for leaving until proof the question of the pursuer's entitlement to claim in the way that that she has averred the various outgoings that she has incurred and that is grounded in the requirements of the other matters in subsection (3). Those others, contained in (a), (b) and (c), refer to the net intestate estate of the deceased in a way that makes its assessment central to the proper determination of the matters. That assessment must involve determining the actual value of the net intestate estate. A debt said to be due from the estate might be expected, if admitted or established, to have an effect on the calculation of the value of that estate out of which the pursuer invites the court to make an order as craved. It seems to me that although there is an argument that the pursuer's averments relate to a charge on the estate which falls outwith her ground of action as a surviving cohabitee under section 29, nonetheless her claim for reimbursement, in her capacity as a purported debtor of the whole estate of the deceased, has the potential to affect the value of the net intestate estate and that is something on which the court ought to be able to make a decision in the claim under section 29. The averments of fact challenged under this paragraph provide a ground for assisting the court in making that decision. For that reason alone I conclude that they ought to remain on record for the purposes of any subsequent proof in the cause.

Paragraph 4

[58] Paragraph 4 of the note challenges the relevancy of the single sentence in article 4 of condescendence at lines 6 to 8 that states: "As a spouse, the pursuer would have been entitled to receive the whole of the intestate estate in satisfaction of her claims under section 8 and 9 of the Succession (Scotland) Act 1964 ("the 1964 Act")". I prefer the submission for the defender on this matter. The pursuer's action proceeds upon the legal ground conferred by the 2006 Act of the right to claim on the estate of the deceased cohabitant if certain conditions are satisfied, none of which was challenged at debate. What she might have realised from the estate of the deceased had they been spouses is irrelevant because any entitlement she might vindicate to share in that estate is determined by an application of the provisions of section 29 and not of any sections of the 1964 Act. The averment in question is one that she offers to prove, but to what end? Bearing in mind the legal ground of her action, even if she were to prove the fact contained in the sentence it would not assist her to secure the remedy that she seeks. It is correct to say, as the solicitor for the defender did, that the 1964 Act is referred to in section 29(10) but for the purposes of the debate that statutory direction does not give the pursuer the sound legal basis for the sentence under consideration that she would need to survive the defender's attack on its relevancy. In making the submission the solicitor for the defender acknowledged, almost apologetically, that this challenge was not a point of substance and I agree with him on that, but he having insisted in it I am persuaded that he is right in his challenge. Accordingly I will delete that sentence from the record.

Conclusion

[59] For all the foregoing reasons, I sustain the defender's first plea-in-law to the extent of the challenges made under paragraphs 1, 2, 4, 5 and 6 but repel those made under paragraph 3 and quoad ultra I repel the plea. As for further procedure in the cause I consider that it would be appropriate for parties to address me on that in light of my decision and I have therefore appointed a hearing for that purpose.

Expenses

[60] Neither side addressed me on how to deal with the expenses of the diet of debate. The defender's first plea-in-law included a request for an award in his favour of the expenses of the whole action. I question whether a plea in law is the proper place for a request for an award of expenses, and find support for that in Macphail, Sheriff Court Practice, third edition (2006), at paragraph 9.104. I have appointed a hearing on the expenses, which I intend should take place at the same time as the hearing on further procedure.