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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Ali v Andrew Or Ali [2001] ScotCS 265 (22 November 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/265.html Cite as: [2001] ScotCS 265, 2002 SCLR 264

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[1] This is a petition for suspension and interdict by Aslam Mohammed Ali against his former wife, Mrs Lorna Jane Andrew or Ali. Throughout this opinion I shall refer to them respectively as "the petitioner" and "the respondent". The petition and the respondent's answers thereto came before me for a proof before answer. This was allowed by an Extra Division on 30 January 2001, for reasons given in an opinion of the court delivered by Lord Hamilton and reported as Ali v Ali (No 2) 2001 SLT 602. Before I turn to discussion of the evidence, it is necessary for me to explain in some detail the context in which the proof was allowed. For convenience, I shall incorporate material derived from the opinion of the Extra Division.

[2] A number of basic facts were not in dispute. The petitioner and the respondent were married at Turriff on 26 August 1967. They had three sons, aged 30, 27 and 24 at the date of the proof. After the marriage they lived for about two years in Canada, and then went to live at The Bungalow, Overbrae, Fisherie, Turriff. The petitioner was (and remains) a farmer and ran a farming business from that address. The parties lived there together until 17 May 1989, when the respondent left the petitioner. At that date the petitioner owned The Bungalow, Overbrae, Fisherie, with land extending to about 27 acres, a holding at Cartref, Overbrae, Fisherie, with land extending to about 11 acres and a holding known as Croft of Overbrae with land extending to about 12 acres, making a total of about 50 acres. In addition he owned a holding known as East Neuk, Crudie with land extending to about ten acres, which he was in the course of selling at the date of separation. He also owned various items of machinery and equipment, tractors and vehicles. He had a bank overdraft and other current liabilities. The respondent had no property of her own.

[3] In August 1994 the respondent raised in the sheriff court at Banff an action for divorce from the petitioner, then designed as Muhammed Aslam Ali, in which she applied, under section 8 of the Family Law (Scotland) Act 1985, for an order for payment of a capital sum of £70,000. Her initial writ contained the following averments:

[4] The petitioner lodged defences in which he maintained that the sum sought by way of a capital sum was excessive. Both parties were at that stage legally aided. On 7 February 1995 the sheriff, having heard parties' solicitors, ordained the petitioner to lodge certain farm accounts. He further ordered that a report on a valuation of heritable property and farm machinery, already arranged to be carried out by a named company, be lodged when it became available. Proof was allowed and 23 May 1995 was assigned as the diet. On 9 May 1995, no such report having been lodged, the sheriff, having heard solicitors, on the respondent's motion, ordered that the report be lodged within seven days. On 23 May 1995 the diet of proof set down for that day was discharged on the petitioner's motion because he was medically unfit to attend court. A fresh diet was fixed for 12 September 1995. On 8 August 1995 the sheriff heard the parties' solicitors on (1) the respondent's motion to find the petitioner in default in respect of his having failed to obtemper the interlocutor of 9 May 1995 and to allow the action to proceed as undefended, and (2) the petitioner's motion once more to discharge the diet of proof and to allow him further time to lodge the report. The sheriff granted the respondent's motion, held the petitioner in default in respect of his failure to obtemper the interlocutor of 9 May 1995, discharged the diet of proof, repelled the defences, allowed the action to proceed as undefended and allowed the respondent a proof of her averments by way of affidavit evidence. The petitioner marked an appeal to the sheriff principal against that interlocutor. The appeal was heard on 5 October 1995 and was refused. Following refusal of the appeal the petitioner's solicitors withdrew from acting for him. On 3 January 1996 the sheriff granted decree of divorce, awarded the respondent a capital sum of £70,000 with interest thereon at the rate of 8% per year from that date until payment and found the petitioner liable to the respondent in the expenses of the action. The decree was extracted on 18 January 1996. The petitioner's evidence, which was not disputed, was that he was not aware of the decree until an extract of it, which had been sent by the sheriff clerk to his former solicitors, was forwarded by them to him on 22 January 1996. The petitioner sought leave to appeal late but that application was refused by the sheriff principal on 7 May 1996. A subsequent attempt to appeal to this court was abandoned.

[5] Thereafter the respondent took steps to enforce the decree for payment of a capital sum. A charge for payment was served on the petitioner on 8 February 1996. On 20 May 1986 the respondent made an application to the Sheriff Court at Banff for the sequestration of the petitioner. Before any award of sequestration was made, the petitioner presented to this court the present petition in which he sought (1) interim suspension of the charge for payment of the debt constituted by the decree of 3 January 1996, (2) interim suspension of that decree, (3) suspension of that decree to the extent of the second and third parts thereof, ie. the award of a capital sum and the finding of liability in expenses, (4) a remit to the sheriff for reconsideration of the award of a capital sum, (5) a remit to the sheriff for reconsideration of the question of expenses, and (6) interdict of the respondent from insisting further in the petition for sequestration. On 25 June 1996 interim suspension of the charge and the decree and interim interdict were granted on the ex parte motion of the petitioner. It seems that he had (presumably emergency) legal aid for the purpose of seeking these interim orders. So far as appears, the petitioner has not otherwise had the benefit of legal aid for the purposes of the present proceedings. At all subsequent stages he appeared as a party litigant.

[6] In September 1997 the petitioner, under rule 4.2(5) of the Rules of the Court of Session, requested the deputy principal clerk to place a summons before the Lord Ordinary for leave to proceed without the signature of an agent. This concluded for production and reduction of the decree for the capital sum and for expenses pronounced by the sheriff at Banff on 3 January 1996. The request was placed before Lord Eassie who refused to grant it on the ground that as framed "it does not disclose prima facie grounds for reduction of the sheriff court decree". The petitioner was urged to seek legal advice.

[7] Meantime, the respondent had lodged answers to this petition. These included a plea to its competency, based on rule 49.30 (which precludes the bringing of proceedings for the suspension of any decree of divorce pronounced in an undefended action). On 29 May 1998, after a procedure roll hearing, Lady Cosgrove dismissed the petition as incompetent. A reclaiming motion against this interlocutor was heard by an Extra Division, which on 10 December 1998 recalled Lady Cosgrove's interlocutor insofar as it dismissed the petition and repelled the first plea-in-law for the respondent, being the plea to the competency of the petition, and remitted the cause to the Lord Ordinary to proceed as accords. The decision of the Extra Division is reported as Ali v Ali 1999 SLT 943. The court held that the constituent parts of the decree of 3 January 1996 were severable and that rule 49.30 did not render incompetent a prayer for suspension of a decree so far as concerned with a capital sum and expenses. The plea to the competency was repelled without any discussion of the general question of the competency of a petition for suspension as a means of reviewing a decree pronounced in a lower court. No subsequent attempt was made to advance submissions about this general question, and before me counsel for the respondent expressly stated that he did not seek to challenge the competency of the petition. Without expressing any opinion on the matter, I therefore proceed on the basis that the petition is competent.

[8] After sundry further procedure the case was heard by Lord Macfadyen on procedure roll. On 19 October 1999 he dismissed the petition as irrelevant. Having considered the authorities and the petitioner's averments, he held that the test for relevancy of these averments ought to be derived by analogy from cases of reduction. He then held that the decree sought to be impugned was a decree in foro and that the petitioner's averments were irrelevant to instruct a case for suspension of such a decree. He further held that, even when tested by the less stringent standard applicable to a decree in absence, the petitioner's averments were irrelevant to support the prayer for suspension.

[9] The petitioner brought a reclaiming motion against Lord Macfadyden's interlocutor. On 30 January 2001 an Extra Division allowed the reclaiming motion and, as I have said, allowed the present proof before answer. The proof was allowed under exclusion of the petitioner's averments in statement 3.2 and the relative answer for the respondent. These averments related to the petitioner's state of health at various times and to the history of his legal representation in the sheriff court. I note that in their opinion the Extra Division observed that none of the authorities cited by the petitioner supported the proposition that an action of reduction was an incompetent form of process for seeking to set aside an extracted decree of an inferior court, and this would be usual mode.

[10] This being in the circumstances an unusual form of process, it is necessary to consider with some care what tests fall to be applied in deciding whether to grant the petitioner the remedy of suspension which he principally seeks. The Extra Division held that the remedy sought by the petitioner is in substance the same as that of reduction of a sheriff court decree, namely, the setting aside for all time of a decree pronounced by the inferior court and against which an appeal is not or is no longer available. Accordingly, they held that the test for relevancy of each form of process is the same. As they pointed out, the interests of public policy dictate that the granting of such a remedy should not be taken lightly or without due consideration of the whole circumstances: Robertson's Executor v Robertson 1995 SC 23 at p.30. Lord Macfadyen had held that the decree sought to be impugned in the present case was a decree in foro. The Extra Division said that, without deciding the matter, they were disposed to favour the assumption that the stricter standard applicable to decrees in foro should be applied. Before the Extra Division reference was made to two cases in which reduction was sought of decrees in foro. In Adair v Colville & Sons Limited 1926 SC (HL) 51 the House of Lords held that while it might have been competent to reduce a decree of the sheriff had it been clearly demonstrated that a miscarriage of justice had taken place, in the circumstances of that case it was impossible to arrive at any conclusion upon that question. At pp. 55 to 56 Viscount Dunedin said:

In Philp v Reid 1927 SC 224 the Inner House held that reduction as a process of review was not an alternative to the ordinary method of appeal and was available only in exceptional circumstances. In the present case, the Extra Division noted (2001 SLT at p.607)

Although I was not addressed on the question whether the decree of the sheriff in the present case was a decree in foro or a decree in absence, I understood the parties to proceed on the basis that it was the former. This appears to me to be correct. It was the view which the Extra Division were disposed to favour, without deciding the matter. I do not see how a decree pronounced in an action which has initially been defended but has been allowed to proceed as undefended by reason of the default of the defender in failing to obtemper an interlocutor could be regarded as a decree in absence.

[11] The considerations which led the Extra Division to hold that the petitioner's averments were sufficiently relevant for a proof before answer were as follows. The affidavits before the sheriff, and in particular that of the respondent, made no reference to the financial matters which were the subject of the averments in the initial writ which I have quoted. At most, therefore, the sheriff had regard to those averments in deciding to award the capital sum of £70,000. After considering various authorities, the Extra Division concluded 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. They said that where a defender fails to make a full and frank disclosure of his or her assets, inferences adverse to him or her may be drawn from other evidence in the case. But in all cases, except where there is agreement, it is appropriate that there be an evidential basis to warrant the award. The Extra Division went on to consider a submission on behalf of the respondent that in the circumstances of the present case it was unimportant that there was no such evidential basis before the sheriff. It was submitted that 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. The court were unable to accept these submissions. They said that 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, compliance with the rule not only ensured that the application was supported by sworn testimony but, if the rule was properly followed, the affidavit evidence should give a full, accurate and up-to-date explanation of why the amount claimed would, having regard to sections 8 and 9 of the 1985 Act, be justified and reasonable. In the present case, a mere repetition on affidavit of the respondent's statements 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. In these circumstances the Extra Division concluded that the petitioner's averments disclosed a larger basis for reviewing the sheriff's award than a mere claim that the amount awarded was not in fact justified by the true financial position of the parties. They said that much might turn on whether and, if so, to what extent he is able to establish that the award of £70,000 as a capital sum was in the relevant circumstances extravagant.

[12] I invited submissions on the meaning of the word "extravagant" in the context of the Extra Division's opinion. The relevant definition in the Oxford English Dictionary is "astonishingly or flagrantly excessive or extreme" or "exorbitant". Counsel for the respondent referred to Macarthur v Chief Constable, Strathclyde Police 1989 SLT 517, in which it was held in the Inner House that inter alia one of the tests to be applied in determining whether the damages awarded by a jury were excessive, such that a new trial should be ordered, was whether the sum was so extravagant that it could be said to be a verdict which no reasonable jury could have given. This formulation was derived from Young v Glasgow Tramway and Omnibus Co Ltd (1882) 10 R. 242. Counsel also referred to Girvan v Inverness Farmers Dairy 1998 SC (HL) 1 and the case of Landell v Landell (1841) 3D 819 which was followed by the House of Lords. Lord Hope quoted with approval a passage in the opinion of Lord Justice Clerk Boyle in Landell v Landell at p. 823, that,

As I shall discuss more fully later on, the petitioner did not accept that the correct test was whether the sheriff's award was extravagant, rather than simply excessive, but he did not dispute that, if extravagance was the correct test, these formulations provided guidance.

[13] I turn now to consideration of the evidence which was led before me. As I have indicated, the petitioner appeared as a party litigant. He was accompanied in court by a Mrs Lee, who was not, as I understood it, legally qualified but who acted as his adviser. Except when he was giving evidence himself I allowed the petitioner to take such advice from Mrs Lee as he wished during the course of the proceedings. The proof was principally taken up with questions relating to the valuation of the petitioner's property and the extent of his liabilities from time to time. Despite efforts on my part to remind the petitioner, under reference to sections 8 to 10 of the 1985 Act, of the need in the first place to have regard to the net value of the matrimonial property at the relevant date, which in the circumstances of this case was 17 May 1989 when the parties separated, the petitioner preferred to concentrate on the valuation of his property at the date of the Sheriff Court decree. Indeed, he several times questioned the validity of a retrospective valuation of the property as at 17 May 1989. One of the productions which had been lodged by him or on his behalf was a report by Messrs F G Burnett, a firm of chartered surveyors in Aberdeen, dated 19 May 1998, which had been instructed by Mrs Lee on the petitioner's behalf. The firm had been instructed to value, as at May 1989, the dwellinghouse and 50 acres of land which they described as a unit but which clearly comprised the three holdings at The Bungalow, Cartref and Croft of Overbrae. They expressed the opinion that the open market value of this property as at May 1989 with the benefit of vacant possession could be fairly stated in the sum of £80,000. Although it had been instructed on his behalf and lodged as one of his productions, the petitioner did not seek to rely on this report, as he disputed the validity of a valuation as at May 1989 (though clearly Mrs Lee at least had understood the relevance of that date), and in any event because he did not accept the value stated by Messrs F G Burnett. Counsel for the respondent did, however, rely on the report, as in my view he was entitled to do. The petitioner led evidence from two witnesses, as well as giving evidence himself. The respondent also gave evidence. I propose to discuss the factual issues in approximately chronological order.

[14] As I have said, after the parties married in 1967, they went to Canada for about two years. On their return they took up residence at The Bungalow, Overbrae, Fisherie. This was bought for about £1600, of which the petitioner's father contributed about £400. The title to the property was taken in name of the petitioner. The respondent's evidence was that the £400 contributed by the petitioner's father was a gift to them both. The petitioner submitted to me that she was lying about this, and as I understood it he contended that his father had some kind of interest in the property. Reference was made to two letters written by the solicitors who acted in the purchase in 1969. They refer to the petitioner's father's contribution of about £400, and nothing in them suggests that the petitioner's father was to acquire any right of ownership in or security over the property. I prefer the respondent's account, which is consistent with this. The petitioner's father no doubt wanted to help the young couple to set themselves up in business on their return to Scotland.

[15] No evidence was led before me as to whether all the heritable property which the petitioner came to own during the marriage was acquired by him in 1969 or whether, as seems more likely, some of the holdings were acquired subsequently. In any event, he worked as a farmer and the respondent assisted him. The principal activity was growing potatoes and other crops. The respondent's evidence, which was not disputed by the petitioner, was that she was very much part of the farming business. She said that she did all sorts of things, such as feeding the potato-pickers, grading the potatoes and keeping the books. The farm was her whole life and she had no other occupation at all. She was brought up on a farm and spent a lifetime in farming until the parties separated. She was in paid employment in connection with agriculture before the marriage and in Canada. She regarded herself as having a good knowledge of agricultural matters, and by working on the books of the business she was aware of the assets that were employed in it and the financial situation from time to time. I accept all this evidence.

[16] It is clear that, latterly at least, the business was not doing well. The petitioner's productions include accounts for the year ended 5 April 1988 to the year ended 5 April 1997 inclusive, along with some letters from Messrs W D Johnston & Carmichael, C.A., who prepared his accounts for all but the last of these years, and some Inland Revenue forms. The petitioner's productions also include (in some disorder) a large number of bank statements, the earliest dating from 1 November 1989. I do not think it necessary to go into the profit and loss accounts in any detail. It is sufficient to quote from a letter by Messrs W D Johnston & Carmichael (which can be related to the Inland Revenue forms), which states that in the year ended 5 April 1987 the petitioner's taxable profits were nil, in the year ended 5 April 1988 his taxable profits were £3,764, after deduction of losses and ABA, and in the year ended 5 April 1989 he incurred a loss of £2,449. The business was operated, as farming businesses often are, with the benefit of an authorised overdraft from the Royal Bank of Scotland. There was no evidence about the authorised limit prior to 1989, but in that year it was £12,000, and in 1993 it was increased to £15,000. From the balance sheet as at 5 April 1988 it appears that the bank overdraft at that date was £4,866, and from the balance sheet as at 5 April 1989 it appears that at that date it was £10,581. A bank statement shows that on 1 November 1989 it was £5,937. As at 5 April 1989, with the addition of creditors of £4,400 and accrued charges of £810, the petitioner's current liabilities were £15,791, which exceeded his current assets, consisting of stock of £2,640 and debtors of £750, by £12,401. Clearly, if the petitioner came under pressure to discharge his current liabilities, he would have to sell some of his fixed assets. This is indeed what he did in the case of the holding known as East Neuk. The sale of this property was in contemplation at the date of the separation, which is why the respondent was able to make an averment about it in her initial writ, but it was not finalised until later in the year ended 5 April 1990. The sale price was £32,500. Obviously, there will have been some legal fees and other expenses associated with the sale, but I was not given a figure for these. It seems unlikely that the net proceeds were less than £30,000. This sale may be related to a statement in a letter by the petitioner's accountants dated 15 February 1995, that his "financial position worsens each year and [he] has only managed to stay in business by selling capital assets such as land and potato quota over the years". I shall return to his financial position following the separation in due course, but at this stage I propose to discuss those of the petitioner's assets as at the date of separation which were the subject of greatest controversy before me.

[17] I have previously quoted the terms of the respondent's averments in the initial writ. The respondent explained to me that she arrived at the various values attributed to the petitioner's assets in discussion with her solicitor, Mrs Sharon McKilligin of Messrs Stewart & Watson, solicitors. The respondent used her own knowledge and experience, and likewise Mrs McKilligin came from a farming background and was married to a farmer. Between them they arrived at figures for The Bungalow, Cartref and Croft of Overbrae, the total value attributed to these three holdings being £90,000. They also arrived at £32,500 as a value for East Neuk without knowing the sum for which the petitioner was in the course of selling this property. The closeness of the respondent's valuation of East Neuk to the actual sale price of this holding lends credence to the soundness of the valuations attributed to the other three holdings. Moveover, the total of £90,000 for the respondent's valuations of these holdings may be related to the £80,000 at which Messrs F G Burnett valued them as at the date of separation. Although the petitioner argued that the respondent and her solicitor were not qualified to make these valuations, and he also argued that a retrospective valuation was lacking in validity, no other evidence was led before me about the value of the petitioner's heritable property at the relevant date.

[18] The value of any property on the open market is necessarily a matter of opinion in the absence of an actual sale, such as that of East Neuk. Where more than one opinion is expressed, there will be a range of figures. While the respondent's figures were, understandably enough, pitched at what may, in light of the evidence I am about to discuss, be regarded as the top end of the scale, I am satisfied that they reflected an honest attempt to arrive at reasonable values for the heritable property at the relevant date and were capable of acceptance as such. The petitioner preferred to concentrate on the value of his heritable property at the date of decree in January 1996. In this connection he led evidence from two valuers. The first of these was Alfred Keith, an associate member of the Institute of Auctioneers and Appraisers in Scotland, with premises in Peterhead. He carried out a valuation on 27 March 1996. He took account of the condition of the dwelling house and outbuildings, together with 50 acres of land, which he described as being of medium quality, contained in five fields, at that time all in permanent grass and set-aside and which qualified for LFA (Less Favoured Area) severely disadvantaged subsidies. He found that the fences were in a poor state and were not stock-proof. He assessed the value of the property to be £53,000. In cross-examination he said that property values change from time to time and could do so quite significantly over a period of six or seven years. The value of £53,000 represented what the property would fetch on the open market as at 27 March 1996. This was his best estimate. If the property had been in first class order, with the land being cultivated and used for rearing stock and for cropping, with stock-proof fences, he would have increased the value by £10,000 - £15,000. When asked about the F J Burnett valuation, he said that he was not asked to give a value as at May 1989, so he could not dispute that £80,000 would be an appropriate value as at that date. The second valuer was Donald Young, of Huntly and U A Partnership Limited. He was also an associate member of the Institute of Auctioneers and Appraisers in Scotland. As I understood it, his principal experience was in livestock valuation. He valued the property on 21 March 1996 and gave a brief report. He said that the dwellinghouse and outbuildings were in need of repair. The farm extended to 50 acres or thereby of mixed LFA land. In his opinion the value of the property as it stood was £59,000. In cross-examination, he said that he did not know what the value of the property would have been six or seven years previously. He agreed that Messrs F G Burnett, as chartered surveyors, were better qualified to value the property, and he was not in a position to dispute their valuation of £80,000 as at May 1989. Both these witnesses were asked to comment on a newspaper advertisement lodged by the petitioner which related to a 79 acre farm near Peterhead which was advertised for sale in March 1999 for offers over £50,000. Neither of them attached any significance to this advertisement, principally because it was not possible to comment on the value of a farm without more information about the quality of the land. The evidence of these witnesses does not in my opinion detract from the respondent's valuations.

[19] The other contentious issue in connection with the matrimonial property at the relevant date related to the value of various items of farm machinery which were said in the respondent's initial writ to be worth approximately £20,000. The respondent gave evidence that she had arrived at this figure on the basis of her knowledge of what machinery was on the farm at the time of the separation. She and her solicitor had then made an estimate of their value under reference to the prices which similar items were fetching at auction at the material time. She said that there were three tractors on the farm, two models of Massey Ferguson and a David Brown with forklift attached. There were a separate forklift, a combine, potato grading equipment, hoppers, several carting devices, stocks of potato boxes, ridgers, ploughs, harrows, cultivators and hand tools. The petitioner did not directly challenge this list, which I accept as accurate, but sought to rely on what was shown as the value of these items in his accounts. In the notes on the accounts for the year ended 5 April 1989 there was a schedule of fixed assets as at that date, which included specified machinery and equipment valued at £1,233 and tractors and vehicles valued at £1,896. Two tractors, a combine, a forklift, two vans and a motor car were individually listed. Examination of the accounts for several consecutive years shows that these fixed assets were first entered at their original cost which was then subjected to an annual depreciation charge of 20%. The extent to which the value thus arrived at might differ from the current market value of any particular item can be seen by reference to what happened to the combine. Its value as at 5 April 1992 was stated in the accounts to be £66. Thereafter it was destroyed by fire and a claim was made on the petitioner's insurance. He received £1,550 from the insurers, which I take to be what they regarded as the current market value of the combine. If I understood him correctly, the petitioner appeared to suggest at one point that he had succeeded in obtaining more from the insurers than the true market value of the combine, but without further evidence I am not prepared to accept this. The petitioner had owned the combine for a considerable period, and no doubt its market value was more at the date of the parties' separation than it was two years or so later. Counsel for the respondent suggested that one could extrapolate from this to the other items: the insurers had paid about 23.5 times the value attributed to the combine in the accounts, and if this multiplier was applied to all the relevant items in the accounts as at 5 April 1989, a figure in excess of £70,000 could be taken as their total true value. This approach appears to me to be far-fetched. The only attempt which was made to arrive at a reasonable estimate of the current market value of these items at the relevant date, as distinct from an accounting exercise, was that made by the respondent in her initial writ, with the assistance of her solicitor. Quite apart from her general knowledge of the market, she knew when the petitioner had bought these items and what he had paid for them. I am satisfied that her estimate represented an honest and reasonable attempt to arrive at a suitable figure and was capable of being accepted as such.

[20] What I have said so far has principally been directed to the evidence relating to the value of the matrimonial property at the relevant date. I turn now to the evidence relating to the means of the parties as at the date of the decree pronounced by the sheriff in January 1996. The respondent's evidence, which was not disputed, was that when she left the petitioner she had 23 pence. She found employment as a medical secretary, and obtained the tenancy of a council house. The youngest son of the marriage, who was under 16 years old at the time, went to live with her, and the petitioner paid her money for his maintenance until he was 16. She bought the council house, with the help of a mortgage, in about 1999.

[21] As at January 1996 the petitioner still owned the same property, with the exception of East Neuk, which he had sold, and the combine which had been the subject of the insurance claim. Having regard to the evidence of Mr Keith and Mr Young, the heritable property may have been worth less then than it was in May 1989, but it still formed part of his resources. According to his accounts, in the year ended 5 April 1995 he made a net profit of £8,254, and in the year ended 5 April 1996 one of £9,251. On the latter date (being the nearer in date to the date of decree) his current assets were £7,535 and his current liabilities £11,037, making a deficit of £3,502. His principal current liability, according to the accounts, was a bank overdraft of £10,537. I have not been able to relate this figure to the petitioner's bank statements, which show an overdraft of £7,223 on 4 April 1996. I do, however, accept that at all times he has been indebted to the bank. The amount of the overdraft has varied, but has not always been within what I understand to have been his borrowing limit, and I have no reason to think that in January 1996 he was in a position to borrow any substantial sum. Obviously, therefore, if he were to pay the respondent £70,000 or any other substantial sum he would have to raise the money by selling land. An additional factor is that for a period ending in March 1996, the petitioner was in receipt of sickness benefit of £66.65 per week. In a letter dated 7 June 1996, Messrs W D Johnston & Carmichael, C.A., stated to the petitioner that, on the basis of the values placed on the petitioner's property by Mr Keith and Mr Young, and otherwise on the basis of the figures shown in his accounts, his net worth would be approximately £50,000. Therefore, if the respondent was entitled to one half of his assets, the maximum she could be expected to receive would be £25,000. The alternatives, they stated, would be to force him to sell his business to pay the £25,000 or to come to some arrangement whereby he could pay it off over a period of time. They appear not to have considered the value of the matrimonial property at the relevant date.

[22] The petitioner did in fact send some money to the respondent. At the proof before me, she was under the impression that this was before the date of decree, but from a letter which is among the petitioner's productions it appears that on 28 April 1997 he sent two post-dated cheques for £500, which were accepted as a payment to account of the decree for £70,000. There were attempts to negotiate a compromise. The petitioner attempted to refer at the proof to a letter written on behalf of the respondent, but when I expressed reservations about the appropriateness of my having regard to it, since it concluded with a passage which made it clear that it was written without prejudice, the petitioner did not pursue the matter. He did however give evidence, and in due course evidence was also given by the respondent, about a proposal by him to convey to her some of his land. He valued it at £25,000, and she valued it at £20,000. She was not prepared to accept this proposal, so the petitioner still has the land. The petitioner stated to me on a number of occasions that he was dependent on retention of his land in order to earn a living as a farmer. To my mind, his proposal to convey some of his land to the respondent contradicts this. Moreover, I note, on examining his accounts as he invited me to do, that there have been a number of years (though not recently) when he has paid rent for land, presumably not his own. This suggests that there are ways in which the petitioner could continue to earn a living as a farmer without retaining ownership of all his land.

[23] At the hearing on evidence the petitioner submitted that once the sheriff had allowed the divorce action to proceed as undefended and allowed the respondent a proof of her averments by way of affidavit evidence, it was for the respondent to obtemper this interlocutor. He referred to some of the same authorities as were referred to in the opinion of the Extra Division in Ali v Ali (No 2), where the court held that there was a well-established rule (at least of practice) that an application for financial provision on divorce should, except where parties were agreed, be supported by evidence as to why the amount claimed would, having regard to sections 8 and 9 of the 1985 Act, be justified and reasonable. He also referred to McVinnie v McVinnie (No 2) 1997 SLT (Sh. Ct.) 12, in which it was held that the Court had to consider both heads of section 8(2) when the question of a capital sum was being addressed, and Wallis v Wallis 1993 SC (HL) 49, in which the House of Lords held that for the purposes of section 9(1)(a) the matrimonial property had to be valued as at the relevant date and in the absence of special circumstances as at that date was to be divided equally between the parties. In the latter case the House of Lords also held that although the 1985 Act did nothing to address directly the problems which might arise where some item of matrimonial property had increased or fallen in value during the period since the relevant date, some of these problems might be capable of being solved by the application of section 8(2)(b). The petitioner submitted that although the respondent had not lodged any affidavit evidence about her claim for a capital sum, there was ample evidence of his own circumstances as his accounts, which had been lodged before the action became undefended, were at the disposal of the sheriff. From these the sheriff could have seen that there were special circumstances, within the meaning of section 10(1) and (6), which justified sharing the matrimonial property in unequal proportions. This was particularly so because, he submitted, under reference to paragraph (d) of sub-section 6, the sheriff should have appreciated that the matrimonial property was a farm which the petitioner used for his sole livelihood. The petitioner referred to cases in which no order for a capital sum had been made: Clark v Clark, 1978 SLT (Notes) 45 and Rodgers v Rodgers (No 2) 1994 GWD 31-1869. The petitioner's most radical submission was that in making a capital award the sheriff acted outwith the scope of his powers, so that the award was ultra vires and therefore incompetent. The respondent's failure to provide the Court with any evidence negatived her claim for a capital sum. Accordingly the proceedings by means of which she had sought to enforce payment of the capital sum should be suspended. When I asked the petitioner what sum the sheriff ought reasonably to have awarded had the respondent done what she should have done, and lodged affidavit evidence in support of her claim for a capital sum, and the sheriff had taken account of this evidence, the petitioner declined to answer me. He submitted that to pay any substantial capital sum would destroy his business, because he would have to sell his property to raise the capital. He could only manage to pay a few thousand pounds, and that over a period of time. He had been a farmer all his life, and what was he to do at the age of 55? He did not think that the law should allow people to be thrown out of their property and sequestrated. This was a bestial way of enforcing a decree.

[24] Counsel for the respondent submitted that this action was not an opportunity for the petitioner to have "a second bite of the cherry" in an attempt to re-write what was done by the sheriff, which was what he was attempting to do. The divorce action had proceeded to decree as an undefended action. There was no obligation on the sheriff to take account of the defences or the productions which had been lodged on behalf of the petitioner once the action was allowed to proceed as undefended. Counsel accepted that the sheriff ought to have done more than he did, and should not have proceeded to award a capital sum without having relevant evidence, at least in affidavit form, before him. It was, however, for the petitioner to prove that there was no justification for the award of £70,000, and that that sum was "way out of order". Under reference to section 9(1)(b) of the 1985 Act, counsel submitted that the sheriff was entitled to take fair account of the economic disadvantage suffered by the respondent in the interests of the petitioner and of the family. Each and all of the figures in the respondent's initial writ could be supported. If anything, the petitioner was in a better position at the date of decree in January 1996 than he was at the relevant date, and accordingly did not lack the resources to satisfy any decree. In the present case, on any view of the matter, the sheriff's award was not significantly greater than what he should have awarded, and his award should not be disturbed.

[25] I have already discussed the evidence about the value of the matrimonial property at the relevant date and about the resources of the parties at the date of the decree pronounced by the sheriff. The situation faced by the sheriff was comparatively unusual, but a number of matters appear to me to be clear. The action was originally defended by the petitioner, and the circumstances in which it came to be undefended were entirely of his own making. The sheriff was entitled to take account of this. Once the action was allowed to proceed as undefended, the sheriff was not only entitled but was bound to disregard the terms of the petitioner's defences and of any productions lodged on his behalf. No doubt, for the reasons given by the Extra Division, the sheriff should properly have required at least the provision of evidence in affidavit form which was relevant to the respondent's claim for a capital sum. That he failed to do so did not, in my opinion, invalidate the decree, but this is a factor of which it is appropriate for me to take account in the exercise of my discretion. The sheriff did have before him a certain amount of detail in the passage from the respondent's initial writ which I have quoted. The evidence which I have accepted satisfies me that the respondent could honestly and reasonably have sworn an affidavit in similar terms in support of her averments and in justification of the sum sued for. In an undefended action, this would have been the information available to the sheriff. I have no reason to suppose that the sheriff would not have been satisfied with this information. It appears to me to be a misconception for the petitioner to argue, on the basis of the evidence he led before me, that a lower award by the sheriff would have been justified. His case in the present action was in effect the defence which he would have led before the sheriff had the original action continued to be defended. The evidence led by the petitioner before me is relevant to the extent that it has allowed me to test the figures advanced by the respondent. But, as I have explained, I am satisfied that her figures, although towards the top end of the range, are nevertheless reasonable. The sheriff might perhaps, having regard to the petitioner's liabilities, have awarded £62,500 rather than £70,000; but it may be that there were other factors which would have led him to award the higher figure. It was open to him to do so on the basis of the information that would have been contained in the respondent's affidavit and the application of the relevant statutory principles as explained in the authorities, particularly Wallis v Wallis. What is relevant for present purposes is that the award was not without justification. Even if it was on the high side, it could by no means, having regard to the information which was and should otherwise have reasonably have been available to the sheriff, be described as extravagant. Having regard to the tests set out in the authorities relating to reduction of decrees in foro, I am not satisfied that anything amounting to a miscarriage of justice, still less a fraud, has occurred, or that there are exceptional circumstances which would make it appropriate for this court to interfere with the enforcement of the decree.

[26] I would add that, had I decided that there was scope for interference, I would have granted partial suspension of the sheriff's decree, leaving the respondent to enforce payment of the balance. During the course of the hearing I suggested that this would be a possible course, and neither of the parties disagreed. I would also add that, although the Extra Division referred to section 12 of the 1985 Act, neither party suggested that its provisions had any application for the purposes of any order which I might make.

[27] On the whole matter, therefore, there being no circumstances to justify the suspension sought by the petitioner, I shall sustain the fourth plea-in-law for the respondent and refuse the prayer of the petition.