Lord Justice Clerk

Lord Brodie

Lord Marnoch

[2010] CSIH 65



delivered by LORD MARNOCH

in the Reclaiming Motion



Pursuer and Reclaimer;



Defender and Respondent:


Pursuer and Reclaimer: Mrs Scott, QC, C Wilson; Sheehan Kelsey Oswald

Defender and Respondent: Miss Wise, QC, Miss Innes; Drummond Miller

9 July 2010

[1] In this action of divorce under the second conclusion of the summons the pursuer seeks an order for the transfer by the defender to the pursuer of:

"(i) such right as she may have to payment by the partners of the firm of 'George Steel' of a sum arising under a partnership agreement dated 30 July 2001 on her retiral from said firm and

(ii) the right to payment in terms of the decree of this Court in her favour in the action Maria Anne Tortolano or Steel v George Steel and Robert Steel dated 16 March 2010 (other than for the expenses of that action); ...."

[2] We assume that by use of the word "transfer" what is really intended is some form of assignation. In any event, the third conclusion is thereafter expressed in the following terms:

"(3) For interdict and interdict ad interim of the defender

(i) from taking any steps to enforce payment of the sum referred to in conclusion 2 pending the determination of these proceedings; and

(ii) from taking any steps to do diligence on the basis of the decree of this court in her favour in the action Maria Anne Tortolano or Steel v George Steel and Robert Steel dated 16 March 2010 other than for the expenses of that action."

The temporary judge has refused interim interdict in terms of the third conclusion and his decision is the subject of the present reclaiming motion.

[3] The motion for interim interdict both before us and before the temporary judge was advanced under two heads. First, (although in the end this was only faintly insisted in) it was submitted that interim interdict at common law was competent as a means of preserving what was described as "the subject matter" of the second conclusion. That argument was rejected by the temporary judge in the following terms:

"I was of the opinion that prima facie at common law it was not competent for the pursuer to seek to interdict the defender from exercising her right to enforce the decree in her favour, if so advised. To do so would be her absolute right and not the apprehended violation of any right of the pursuer. Furthermore, as the decree was a joint and several decree the pursuer had no possible basis for preventing the defender from enforcing the decree against the other debtor."

[4] In our opinion the temporary judge was well founded in his reasoning. In particular, we agree that in general interdict and interdict ad interim are intended as remedies against an apprehended violation of a party's rights. It is true that in the past the court has occasionally used interdict as a means of maintaining the status quo or regulating interim possession. However, as is pointed out in Thomson & Middleton's Manual of Court of Session Procedure, at p. 294, that use has been largely if not entirely superseded by the provisions of what was then section 6(7) of the Administration of Justice (Scotland) Act 1933 and what is now section 47(2) of the Court of Session Act 1988. Pease v Pease 1967 SC 112 is possibly a more recent example of the exercise of the power in question but we are clear, in any event, that it can now be invoked only in exceptional circumstances. No such circumstances are present here and we doubt, indeed, whether, even in former times, it would ever have been thought appropriate to interdict simpliciter the timeous enforcement of a valid decree of the court.

[5] The second ground advanced in argument before us and before the temporary judge was that interim interdict was competent under section 18(2) of the Family Law (Scotland) Act 1985. As to that, we agree with the temporary judge that the enforcement of the decree would not, on the face of it, constitute a "transaction" let alone one likely to defeat the pursuer's claim for financial provision. In doing so, we are content to adopt his reasoning in para [8] of his Note which is in the following terms:

"[8] I concluded that section 18 of the 1985 was of no assistance to the pursuer. That provision is designed to deal with avoidance transactions and I agree with counsel for the defender that the notion of giving away of property is at the heart of the provision. ... In my opinion any result achieved by the defender in the implementation of the decree in her favour would not constitute the kind of disposal of property that objectively would be described as the kind of anti-avoidance step envisaged by section 18 of the 1985 Act. Having regard to the legislative intention behind the anti-avoidance provision contained in section 18 of the 1985 Act I concluded that the transaction was some action that in fact or potentially reduced the estate of one spouse/partner to the potential detriment of the other. The implementation of the decree would have the opposite effect."

[6] Before leaving this part of the case it is, however, necessary to address a more particular line of argument that does not seem to have been before the temporary judge and which, at all events, was only fully developed by Mrs Scott, QC in the course of the Reclaiming Motion. That was to the effect that the claim for transfer of "the right to payment in terms of the decree ... " constituted a specific claim for transfer of "property" under section 8(1)(aa) of the 1985 Act with the result that any interference with that particular claim could, after all, be struck at by section 18(2). Leaving aside possible questions of relevancy, we consider that the short answer to this is that the decree in question is indistinguishable from the ius crediti underlying it and thus, in substance, and, as the wording of the conclusion itself suggests, no more nor less than the equivalent of cash. Moreover, Mrs Scott freely accepted that in the end of the day the sum represented by the decree would have in some way to be divided between the parties. In these circumstances we are of opinion that neither the decree nor the right to payment under it falls to be regarded as "property" within the meaning of section 8(1)(aa) of the Act.

[7] We should add that, before us, Mrs Scott also sought to rely on section 14(2)(k) of the 1985 Act. However we agree with counsel for the respondent that where the remedy of interdict is expressly dealt with elsewhere in the Act it is quite impossible to imply from these provisions some further and broader application of that remedy.

[8] For all the foregoing reasons we consider, in agreement with the temporary judge, that the motion for interim interdict is incompetent.

[9] Since the matter was touched on in argument it is right also to mention that we would, in any event, have considered the balance of convenience to favour the defender.

[10] It is plain that the underlying strategy behind the pursuer's claim is to secure a financial outcome in the present action that would enable the pursuer, the pursuer's father and the pursuer's son to continue a farming partnership. To the extent that the claim is pressed in furtherance of third party interests it is not, in our view, relevant to section 18. Furthermore, the farm land is held in trust for the partnership by the pursuer; the farming enterprise includes a tenanted farm nearby; and the pursuer and his partners intend to dispose of a substantial part of the farm for development. In all these circumstances we are not prepared to regard it as inevitable that enforcement of the decree would lead either to the sequestration of the pursuer or to the termination of the farming enterprise, as was urged on us by Mrs Scott.

[11] In the overall result this reclaiming motion is refused.