SHERIFFDOM OF SOUTH STRATHCLYDE, DUMFRIES AND GALLOWAY

AT DUMFRIES

B76/09

JUDGEMENT

of

TEMPORARY SHERIFF PRINCIPAL C G McKAY

in the cause

THE CHILD MAINTENANCE AND ENFORCEMENT AGENCY

PURSUER AND APPELLANT

against

MR. GARRY JOHN SMITH

DEFENDER AND RESPONDENT

_______________________________

Act: Mr. McKenzie, Solicitor, Glasgow

Alt: absent

_________________________________

Judgement dated 7 January, 2011

Child Maintenance & Enforcement Agency v Garry J Smith

B76/09

Dumfries 7 January, 2011 Sheriff Principal C G McKay

The Sheriff Principal, having resumed consideration of the appeal allows same; accordingly recalls the interlocutor of the Sheriff complained of dated 28^th January, 2010; remits to the Sheriff to fix a diet for the hearing of evidence in an inquiry in terms of Section 39A of the Child Support Act 1991 and thereafter to proceed as accords; finds no expenses due to or by either party; directs the Sheriff Clerk to call this matter before another sheriff.

Sheriff Principal.

Note

1. This is an appeal in a summary application under the Child Support Act 1991 ("the 1991 Act"). The Pursuers presented an application under the 1991 Act for a warrant to commit the Defender to prison or, alternatively, to disqualify him from holding a driving licence. The basis of the application was the failure of the Defender to make payment to the Pursuers of sums due by way of child maintenance under a Liability Order dated 21^st May 2008. Warrant for service was granted on 24 February, 2009.

2. After sundry procedure, including a continuation to monitor payment arrangements, a warrant was granted for the apprehension of the Defender when he failed to appear at a diet on 13 August, 2009. The Defender appeared on 21 January 2010. The case was continued to 28 January on the Sheriff's own motion to allow the Pursuer to obtain further instructions. On that date, the Defender being present and the Pursuers represented, the Sheriff, according to the interlocutor,

"having heard parties" was "satisfied that no wilful refusal took place and therefore refuses the application and dismisses the cause with no expenses due to or by either party."

Against that interlocutor the Pursuers appealed. The appeal was not immediately fixed pending the hearing of and issuing of judgements in two other appeals on related matters. These were the cases of the Child Maintenance & Enforcement Agency v O'Donnell (B185/08) and v Davies (B341/08) in which judgements were issued at Dumfries on 11 November 2010.

3. The Respondent was neither present or represented. Notice of the appeal diet had been intimated to him.

Appellants' submission

4. Mr. McKenzie, for the Appellants, referred to an Inventory of productions containing a summary of the chronology of the case and of interlocutors and correspondence in that history. He told me that the Sheriff had made clear on 21 January, 2010 that the continuation to 28 January was for the inquiry which required to be held in terms of Section 39A of the 1991 Act. The interlocutor itself made no reference to this. He then referred to the interlocutor of 28 January. It made no reference to the issue of culpable neglect. It did not record that the Sheriff received what was, in effect, evidence from the Defender - who was present as required - and only evidence from the Defender. The Pursuers had been ready to lead evidence from an officer in their staff of the whole history for the Defender and had also lodged a list of authorities.

5. In what the Pursuer's solicitor understood to be a call-over of cases, this case had been called. The Pursuer's solicitor said she intended to lead evidence but the Sheriff had said he would decide whether evidence was required. The Sheriff then questioned the Defender as to why he had not paid the sums due. The Defender gave an explanation to the Sheriff which involved a statement by him that he had been injured and unable to work. No information as to when this had happened or for how long was included. The Sheriff then said he didn't need to hear evidence and did not afford the Pursuer's solicitor any opportunity to cross-examine the Defender. The Defender had not even been placed on oath.

6. The Pursuers had wished to lead evidence about the failure of the Defender to pay anything in a 7 year period. He had first become liable in 2003. The Liability Order was made on 21 May 2008. There had been a charge and an attempted arrestment. Agency records showed a history of employment and sheriff officers had said he might own a car. The Pursuers were deprived of any opportunity to lead this evidence or to cross-examine the Defender about it or the Defender's own statement to the Sheriff. The Sheriff had also declined to hear any submissions about the law on the basis he was familiar with it. The Sheriff then said he was satisfied there had been no wilful refusal and dismissed the cause.

7. Accordingly, the Appellants submitted, the Sheriff had failed to hold an inquiry as required in terms of Section 39A of the 1991 Act.

8. Mr. McKenzie acknowledged that the Sheriff's Note presented a somewhat different picture. He had some difficulty in understanding what the Sheriff meant in paragraph 19 by the "whole history of the case" since no evidence had been taken. Presumably it was the history of the court process. As to paragraph 20, the Pursuers' solicitor then present had indeed confirmed that the remedy was sought on the basis of the "broken agreement" for payments by the Defender. She had had no option since the Pursuers had not been allowed to lead evidence. The Pursuers had had no opportunity even to ask the Defender how he proposed to get a loan from a bank. The Defender had also referred to some insurance cover for his alleged football injury but again the Pursuers had no opportunity to question him about that. As far as paragraph 22 was concerned, put bluntly, the Sheriff simply had no basis for the conclusion he drew. The Defender had not even made any effort to pay let alone what the Sheriff called " genuine efforts".

9. Mr. McKenzie then referred me to paragraphs 60 and 74 of my judgement in CMEA v O'Donnell. The Pursuers accepted that as a statement of the law so far as the period over which the sheriff is to consider the issues of wilful failure and culpable neglect, namely, the whole period from commencement of liability to the date of the Section 39A inquiry. However, the Appellants maintained the Sheriff had failed to have such an inquiry. Mr. McKenzie referred me to Chapter 16 of MacPhail's Sheriff Court Practice (3^rd ed.) on the conduct of a proof. The fact that this was a summary application was irrelevant to the requirement for the judge to act judicially. In paragraph 58 the learned authors had made observations about the presentation of parties' cases. This involved the eliciting of evidence from witnesses who had been placed on oath or had affirmed, a process involving both examination and cross examination by the parties' representatives. At paragraph 60 the learned authors observed "A party or his advocate has a discretion to call such competent witnesses as he pleases in the order that he chooses." Paragraph 61 referred to the requirement for evidence on oath. The fact that the learned authors in MacPhail are here talking about a proof in an ordinary cause made no difference. An inquiry under Section 39A was still a judicial inquiry and was to be conducted as a proof. In dealing with Summary Applications at Chapter 26 of the same text, the learned authors had observed, in paragraph 24, that the Sheriff should ascertain from parties whether the hearing was to be a debate or a proof and that the interlocutor fixing the hearing should state which it was to be. The interlocutor of 21 January failed to do that. Under reference to the unreported case of Strathclyde Regional Council v B at Glasgow dated 17 February 1984, a decision of Sheriff Principal Dick, the learned authors observed,

"The hearing is, however, a proceeding in a judicial process in which it is necessary to observe the rules of evidence and any relevant principles of civil litigation..."

10. In the Appellants' submission the Sheriff erred in three essential ways. He did not conduct the hearing on 28 January 2010 in accordance with the relevant principles of civil litigation as a judicial process. He failed, according to the terms of his interlocutor of 28 January, to deal with the issue of culpable neglect. Finally, having gathered information in the way he did from the Defender he proceeded to make findings in fact. For all these reasons the appeal should be allowed, the Sheriff's interlocutor recalled and the cause remitted to another sheriff to hold an inquiry under Section 39A of the 1991 Act.

11. The Appellants sought expenses of the appeal if successful.

Decision

12. Unfortunately, in my view, the Sheriff has allowed this process to go very much off the rails. In his Note the Sheriff states (paragraph 13) that "the Section 39A(3) inquiry is supposed to coincide with the first calling of the summary application." I have to say I do not know how he arrives at that view. He opens the selfsame paragraph with the - undoubtedly correct - statement that "summary applications are not normally determined at the first hearing." In the next paragraph (14) of his Note he states "The inquiry may take the form of a proof or it may not in accordance with the wide discretion exercised by the sheriff in relation to summary application procedure." He is right in the sense only that the sheriff has a wide discretion but in contested (my emphasis) proceedings the only method of determining the questions of fact at issue is a proof unless, of course, all evidence is agreed. The Sheriff appears to have forgotten that the civil litigation process in this country is an adversarial one. In the words of the Lord Justice Clerk (Thomson) in Thomson v Glasgow Corporation 1962 SC (HL) 36 at 51/52

"It is an essential feature of the Judge's function to see that the litigation is carried on fairly between the parties. Judges sometimes flatter themselves by thinking that their function is the ascertainment of truth. This is so only in a very limited sense. Our system of administering justice in civil affairs proceeds on the footing that each side, working at arm's length, selects its own evidence. Each side's selection of its own evidence may, for various reasons, be partial in every sense of the term. Much may depend on the diligence of the original investigators, or on the luck of finding witnesses or on the skill and judgment of those preparing the case. At the proof itself whom to call, what to ask, when to stop and so forth are matters of judgment. A witness of great value on one point may have to be left out because he is dangerous on another. Even during the progress of the proof values change, treasured material is scrapped and fresh avenues feverishly explored. It is on the basis of two carefully selected versions that the Judge is finally called upon to adjudicate. He cannot make investigations on his own behalf; he cannot call witnesses; his undoubted right to question witnesses who are put in the box has to be exercised with caution. He is at the mercy of contending sides whose whole object is not to discover truth but to get his judgment. That judgment must be based only on what he is allowed to hear. He may suspect that witnesses who know the "truth" have never left the witness-room for the witness-box because neither side dares risk them, but the most that he can do is to comment on their absence.

A litigation is in essence a trial of skill between opposing parties conducted under recognised rules, and the prize is the Judge's decision. We have rejected inquisitorial methods and prefer to regard our Judges as entirely independent. (my emphasis).

Like referees at boxing contests, they see that the rules are kept and count the points.

It follows from this that a party to a litigation is entitled to conduct it on the footing that the rules will be observed and that they will not be altered while the contest is in progress."

This statement holds good today as it did then. It was not the subject of criticism in the House of Lords. The Sheriff may adopt a more interventionist role today, at least in the earlier stages of the process to determine the real issues but, at the stage of proof - whether in a hearing at which evidence is to be taken or in a diet of proof - his role or function is still defined in the same way. In Chapter 16 of MacPhail's Sheriff Court Practice the "Role of the sheriff" in a proof is set out in similar terms and reference is made to the case of Thomson as authority for the views of the learned authors. I have emphasised one part of the quotation because it appears to me to be what happened before the Sheriff in this case. He appears to have taken on the role of inquisitor to determine the Defender's explanation and then drawn conclusions which can only have come because he decided what the facts were. Parties are entitled to expect judges to conduct proceedings in a way that allows them to present their cases as they see fit with due regard to economy both of time and expense. If judges require to make findings in fact they may be agreed but otherwise they can do so only from evidence. Where evidence is taken it must be done in accordance with the normal rules of civil litigation. That will require a "proof" or "hearing" - to use the term in Section 50 of the Sheriff Courts (Scotland) Act 1907. That section clearly contemplates the leading of evidence since it allows the sheriff to determine whether or not it should be recorded. In Strathclyde Regional Council v B the Sheriff Principal observed of summary applications,

"a summary application...is clearly a proceeding in a judicial process in which the basic rules of evidence and recovery of documents must be observed."

I respectfully agree with that observation.

13. In paragraph 17 of the Note the Sheriff says he regarded the diet of 21 January as the Section 39A inquiry. I do not say he was not entitled to do that but if so he was under a duty to ensure that parties realised that prior to the diet. He would also need to be sure the sheriff clerk realised the diet was effectively a proof diet and that evidence might well be led so that the diet was assigned to an appropriate day in the court schedule. However, in my view, in accordance with what is almost certainly the practice elsewhere, such a diet should be fixed at the first calling or at some time after any intervening continuations for such purposes as the sheriff may allow.

14. The Appellants set out a number of grounds of appeal but, in my view, what I have already said is sufficient to determine this appeal. The Sheriff plainly failed to conduct the hearing on 28 January 2010 in accordance with the normal rules of civil litigation. He deprived the Pursuers of the opportunity to present their case as they saw fit. The Sheriff took account of what the Defender had to say but did not allow that "evidence" to be tested in the normal way. Accordingly, in my view, there has not been an inquiry as required by the 1991 Act and a further diet for that purpose will be necessary. Unfortunately this will require the Pursuers to find the Defender once again and, if necessary, compel his attendance at court for the inquiry. That inquiry will need to be before another sheriff since the Sheriff in question has already reached a view about the issues. The Appellants did not insist in the last ground of their Note of appeal.

Expenses

15. As to expenses the Respondent did not attend or oppose the appeal. There may well be a liability on the Respondent as Defender in due course for expenses in the cause otherwise - including the earlier procedure before the Sheriff - but in my view it is appropriate in the circumstances of this case to find no expenses due to or by either party in the appeal.