Scottish Sheriff Court Decisions

Child Maintenance & Enforcement Commission v Julian Davies

B341/07 Sheriff Principal C G McKay

DUMFRIES: 11 November, 2010

The Sheriff Principal, having resumed consideration of the cause, allows the appeal; recalls the interlocutor of the sheriff complained of dated 26 November 2009; in terms of rule 5B of the Act of Sederunt (Child Support Rules) 1993, considering it appropriate for the purpose of enabling an inquiry in terms of section 39A(3) of the Child Support Act 1991, grants warrant to sheriff officers to apprehend the said Julian Davies and to bring him before the court; grants warrant to governors of HM prisons to receive and detain the said Julian Davies pending his appearance before the court and, in the event that such a governor is unable to so receive and detain the said Julian Davies because of the lateness of the hour, requests police officers to assist in the execution of the warrant by receiving and detaining the said Julian Davies overnight until such hour as the said Julian Davies can be presented at a prison or brought to court; requests all competent courts in England and elsewhere to give their aid and concurrence in carrying into effect this warrant; appoints execution to proceed upon a certified copy of this interlocutor; refuses the appellants' motion for the expenses of the appeal and finds no expenses due to or by either party; otherwise remits to the Sheriff to proceed as accords.

Sheriff Principal.

NOTE:

Background to the appeal

1.     This is a summary application under section 39A of the Child Support Act 1991 ("the 1991 Act"). It was commenced in the name of the Secretary of State for Works and Pensions, Child Support Agency but in course of process the pursuers' designation was amended to the Child Maintenance and Enforcement Commission. The application sought a warrant to commit the defender to prison in terms of section 39A(2)(a) of the 1991 Act or alternatively to order that he be disqualified from holding or obtaining a driving licence in terms of subsection (b) of the said section and Act.

2.     The process is witness to numerous attempts by the pursuers and appellants to effect service upon the defender eventually leading to a warrant for his arrest on 12 March 2009. That led to a procedural hearing on 13 May 2009 when the defender was personally present. On that date the sheriff appointed a procedural hearing on 14 May at which the defender was represented by a solicitor. The sheriff then fixed 6 August 2009 as an evidential hearing and appointed answers to be lodged and allowed adjustments up to 3 August 2009. The sheriff ordained the defender to appear personally at that hearing and appointed the pursuers to intimate a copy of this interlocutor on the defender forthwith. I simply say at this point that it is not entirely clear why that was necessary since the defender was represented by a solicitor on 14 May 2009. The interlocutor of 6 August 2009 discloses that the sheriff, having heard parties' procurators, on joint motion discharged the diet "ex proprio motu" and sisted the cause for negotiation. The sist was recalled on the pursuers' motion on 27 October 2009. On 26 November 2009 the sheriff refused a motion by the pursuers for the arrest of the defender and "ex proprio motu" dismissed the cause and found no expenses due to or by either party. Against that interlocutor the pursuers have appealed.

3.     The note of appeal is in the following terms:

a.       "1. The sheriff held in law in refusing to grant warrant for the arrest of the defender on 26 November 2009 in accordance with the provisions of the Act of Sederunt (Child Support Rules) 1993 Rule 5B(1) as amended by the Act of Sederunt (Child Support Rules) amendment 2001 Rule 2(4);

b.      The sheriff erred in law in dismissing the application on 26 November 2009 without allowing an enquiry in terms of the Child Support Act 1991 section 29A(3) (as amended); and

c.       The sheriff erred when dismissing the application on 26 November 2009 by failing to permit the agent appearing on behalf of the pursuers to make representations to the sheriff on the procedure which should be adopted by the sheriff after the sheriff had refused to grant a warrant for the arrest of the defender seperatim esto by the sheriff proceeding to ex proprio motu dismiss the application with no expenses due to or by without inviting such representations."

4.     The pursuers have lodged in process a certificate of intimation to the defender of the note of appeal both by first class recorded delivery post and ordinary first class post. Intimation of the date, time and place of appeal was given by the Sheriff Clerk's Office to the defender at his address in the instance, 59 Wallamhill Road, Locharbriggs, Dumfries again by first class and recorded delivery post. Those letters were returned by the Post Office marked "address inaccessible". The Sheriff Clerk, Dumfries then attempted to effect service by sheriff officers and a copy of their report dated 5 February 2010 is in process. They advised the Sheriff Clerk that a notice on the property advised that the defender had been evicted. The sheriff officers traced the defender's wife to 135 Lincluden Road, Dumfries where they contacted her on 28 January 2010. She informed the sheriff officers that she had separated from her husband, the defender, after a domestic abuse case and she believed him now resident in the south of England. She provided a mobile contact number but it was no longer active. Enquires of the defender's probation officer disclosed a "forwarding address" at Tower House Hotel, 17-78 Wokingham Road, Redding RG6 1JL. The sheriff officers were unable as at 5 February to confirm whether or not defender was resident there. Sheriff officers also reported the defender worked as a self employed bar fitter and that his wife had told them his last know contact was with a company named Rosemead, Southampton. This was the position the morning the appeal was due to be heard 23 February 2010. In light of the history of attempted service of the original application upon the defender, his eventual appearance only after arrest, the discharge of the evidential hearing of 6 August 2009 following an agreement with the defender to make payments, apparently effective service of a motion by the pursuers recalled the sist due to the defender's failure to maintain payments, the failure of the defender to appear at any court hearing thereafter and the dismissal of the application, ex proprio motu by the sheriff in the absence of the defender I determined to hear the appeal in the absence of the respondent. It appeared open to me to draw the inference from the entire conduct of the defender throughout these proceedings that he was simply evading them.

5.     In course of submissions the appellants' solicitor referred me to:

Cook v Wallace & Wilson (1889) 16R 565,

The Secretary of State for Work & Pensions v McCulloch (unreported decision at Glasgow dated 6 January 2009, B2050/05),

Perks & Others v United Kingdom dated 12 October 1999 (2000) 30 EHRR 33 and

Beet v United Kingdom (2005) 41 EHRR 23

Child Support Act 1991

6.     The solicitor for the appellants also drew my attention to cases numbers 8 to 14 inclusive in the list of authorities for the appellant lodged in process prior to the appeal but did not draw my attention to each and every one specifically but simply in support of his submission to which I later refer.

7.     The appellant also referred to the Child Support Act 1991, sections 33, 38, 39A, 40, 40A and 40B. He also referred to the Debtors (Scotland) Act 1886 section 4, the Civil Imprisonment (Scotland) Act 1892 sections 3 and 4 and the Act of Sederunt (Child Support Rules) 1993. All relevant authorities were lodged in process.

8.     Subsequent to hearing this appeal I heard a like appeal in the Secretary of State for Work & Pensions ( now Child Maintenance & Enforcement Commission) v Steven O'Donnell, B185/08 at Dumfries). That appeal was opposed and the Respondent represented by Counsel. I have issued judgement in that appeal of even date with this one. The issues discussed and determined in that appeal have a direct bearing upon the future conduct of this application and parties are advised to make themselves familiar with the O'Donnell judgement.

Appellants' submissions

9.     Mr McKenzie, for the appellants, took me through an inventory of productions lodged specifically for the appeal. It contained a summary of the chronological history of this process including copies of interlocutors, certificates of citation, letters concerning attempts to effect citation from sheriff officers concluding with the interlocutor of 26 November 2009 when the sheriff had dismissed the application. I do not propose to repeat the details of these productions at length. They are in process. Eventually, on 13 May 2009, the defender appeared before the sheriff and the case was continued to 14 May for a procedural hearing. Due to peculiar circumstances, namely, the fact that the defender was present in Dumfries Court House in relation to criminal proceedings, the appellants had not in fact required to use the warrant for arrest earlier granted. The case was continued to 14 May, the respondent's attendance on that day being excused because he had instructed a solicitor. An evidential hearing was fixed for 6 August 2009. Mr McKenzie submitted that the whole history of the attempts to effect service and the court's dissatisfaction with these attempts reflected no failings on the part of the appellants. Having considered all these productions I accept that submission.

10. Mr McKenzie then informed me that, following the assigning of the evidential hearing for 6 August 2009 negotiations were entered into with the solicitor for the defender for payment for the sum due under the liability order of £8,359.02. That was the amount due under the order at the date of raising the summary application. The appellants were collecting this sum for the benefit of the parent with care. Nothing had been paid by the defender between the raising of the summary application and the date of the arrangement actually made. There was thus a continuing accrual of sums due. The arrangement made with the defender's solicitor was for the defender to pay £95 per week. In fact the continuing liability on the order was £95.27 per week so there was no effective contribution to any arrears. The first payment was due on 14 July 2009 and £95 was paid on that date. The second payment was due on 21 July and was paid on 24 July. The third instalment was due on 28 and paid on 29 July. There was thus a pattern of meeting payments and so the pursuer had agreed with the defender's agents to discharge the evidential hearing and continued the cause for six weeks to monitor payments.

11. The 6 August 2009 diet was the first substantial hearing in this case and on that date the defender had been keeping to his agreement. The sheriff was not persuaded to continue the cause for six weeks but ex proprio motu sisted the cause.

12. The defender then defaulted. He paid £22.40 on 12 August and £72.60 on 19 August 2009. No further payment had been made. Accordingly the appellants sought to recall the sist and a motion to do so was intimated to the defender, apparently effectively. The sist was recalled on 19 November 2009 because no opposition to the motion had been lodged. In the interlocutor of 19 November 2009 the sheriff ex proprio motu continued the application to 26 November bearing to be for the "outcome of a related matter". So far as this particular process was concerned no outcome in any other matter was awaited by the appellants. It appears that the sheriff in question, in another Child Support Agency case had determined that continuations to monitor payments were incompetent. That case is the subject of a separate appeal.

13. At this point Mr McKenzie informed me that there were three appeals from the sheriff concerned in summary applications by the Agency. There was considerable public significance as the Commission used the summary procedure as it had proved successful in recovering child maintenance. Mr McKenzie informed me that the views expressed by the sheriff in relation to continuations for this purpose were unique.

14. On 22 November 2009 Mr McKenzie informed me that he himself had appeared. He had made an application in terms of Rule 5B(1)(b) of the 1993 Rules for a warrant to bring the defender to court for an evidential hearing. The sheriff had expressed the view that it would be illegal for him to grant such a warrant and had referred to the case of Cook v Wallace & Wilson. Mr McKenzie accepted that he had been unfamiliar with that case but had had no prior notice of the sheriff's intention to rely upon it. The sheriff had also expressed the view at this hearing that for him to grant a warrant for the arrest of the defender would offend against the defender's rights under Article 5(1) of the European Convention of Human Rights. The sheriff had refused his motion and had ex proprio motu dismissed the application with no expenses due to or by either party.

15. Mr McKenzie told me that this hearing had been brief. The sheriff had not invited any submissions from him in relation to Article 5(1) of the European Convention nor any submission about what might happen in the event that the sheriff determined to refuse the application for the warrant to arrest the defender. Mr McKenzie accepted that he had not asked for an adjournment to consider the situation but confirmed that he had not been alerted by the sheriff to his intention to consider dismissal. Mr McKenzie said that if he had been so alerted he would have asked for a further opportunity to effect service. The sheriff had not mentioned at any stage in the hearing of 26 November the history of the case. This led to the interlocutor of 26 November in which the sheriff had dismissed the application ex proprio motu.

16. Mr McKenzie then referred me to the relevant legislation comprising the Child Support Act of 1991 (as amended) and the Act of Sederunt (Child Support Rules) of 1993. In particular he drew my attention to the terms of sections 33, 38, 39A, 40, 40A and 40B. So far as the 1993 Rules were concerned Mr McKenzie referred me to Rule 5A and 5B. In this connection he had produced as part of the list of authorities a full copy of the relevant sections of the Act in their former and current formats. He submitted that in terms of sections 33, 38 and 39A, a liability order having been made - in which there was no scope for challenge - the Commission must first attempt to do diligence for recovery. Failing effective diligence the Commission required to make application by summary application under section 39A and the court was required to inquire as to the "needs" of the debtor; () as to what had happened in the past, what was happening at the current time and what might happen in the future. All this should be done at the time of inquiry. He described the phraseology of the section as being in the present perfect progressive tense and so that it was not just a question of past conduct but what was happening not only at the time the application was lodged but at the time the court was carrying out its inquiry. The present perfect progressive tense used in the Act comprehended events that had occurred, were taking place and which might continue to take place.

17. So far as Scotland was concerned the relevant provisions in section 40 were subsections 13 and 14. The effect of them was that the Secretary of State became the alimentary creditor for the purposes of the two statutes that are there mentioned. Those statutes were the Debtors (Scotland) Act of 1880 and the Civil Imprisonment (Scotland) Act of 1882. The Secretary of State was to be regarded as the creditor and to be able to exercise all the powers of the creditor for the purposes of section 4 (imprisonment for failure to obey decree for alimentary debt) of the Civil Imprisonment (Scotland) Act of 1882.

18. From 2 April, 2001 this had been amended and the new subsection, 12, effectively meant that section 40 did not apply to Scotland at all. Subsections 13 and 14 were deleted. The new section was section 40A. It required to be read in context with section 39A. Accordingly the sheriff had to carry out an inquiry. For the issue of a warrant to imprison for non-payment of sums due under a liability order the sheriff had to be "satisfied that there has been wilful refusal or culpable neglect on the part of the liable person". The sheriff still had a discretion because the statute provided that the sheriff "may" issue a warrant of imprisonment. Subsequently, in subsection 8 of section 40A, - the version presently in effect,- the Court of Session's power to make regulations as to procedure and practice by Act of Sederunt was set out and included power to make provision as to the form of any warrant to be issued under section 40A; for citation of a defender to appear before the sheriff to enable an inquiry to be made as to the liable person's conduct and means; and failing such appearance, for the issue of a warrant for his arrest; to enable a warrant to be granted without citation for the purposes of the inquiry and for the execution for the warrant to arrest.

19. Mr McKenzie then drew my attention to the 1993 Rules. The relevant Rule was 5A and 5B. Rule 5A directed that an application under section 39A(1) of the 1991 Act was to be made by summary application and citation to be in form 7. Rule 5B provided that the sheriff may issue a warrant for arrest of the liable person if he has been cited in terms of Rule 5A(2) but failed to appear in person at the hearing or if the sheriff otherwise considered it to be appropriate for the purpose of enabling an inquiry in terms of section 39A(3) of the 1991 Act. The warrant was to be in form 8. Mr McKenzie informed me that on 26 November 2009 when he had made application to the sheriff for a warrant to arrest he had made it under section 5B(1)(b). His submission was that such a warrant was necessary to affect the mandatory inquiry under section 39A.

20. The case of Cook v Wallace & Wilson to which the sheriff had himself referred concerned apprehension and imprisonment for civil debt under the Civil Imprisonment Act of 1882. Civil imprisonment for non-payment of aliment was now abolished. Section 1 of the 1882 Act set out the procedure for civil imprisonment and those provisions applied to liability orders but only until April 2001. Section 4 of the 1882 Act set out the procedure and directed that the matter was to be dealt with summarily - not by "summary application" - and wilful refusal was to be presumed unless the debtor proved the contrary. The decision in Cook had to be looked at in this light. It was an action for reparation against solicitors. The pursuer, Mr Cook, had been the defender in an action for aliment. On his failure to implement a decree for aliment a petition had been presented to the sheriff under the 1882 Act craving warrant to commit him to prison. The sheriff de plano granted the warrant which had been executed by the law agents of the alimentary creditor. The pursuer sought damages on the basis that the warrant was illegal. It was held that the action was relevant and that the warrant was illegal. There had been no statutory authority for the warrant granted and there had been no common law power enabling the sheriff to grant such a warrant. Cook v Wallace & Wilson had no relevance to the present case. It related to a statute repealed in 2001 and in this case a warrant for arrest was expressly authorised by Rules of Court made by the Court of Session pursuant to a power within the 1991 Act.

21. Mr McKenzie then drew my attention to the sheriff's Note. In paragraph 1 the sheriff confirmed that he had refused the appellant's motion at bar for a warrant to arrest and had ex proprio motu dismissed the cause with no expenses due to or by either party. It confirmed that the defender had not been present. In paragraph 2 the sheriff, under reference to the Secretary of State for Works and Pensions v McCulloch 2009 SLT (St Ct) 115 said that he would have fixed a hearing had the defender appeared in court on 26 November 2009. Mr McKenzie's submission was that the appearance or otherwise of the defender was irrelevant to the mandatory requirement under the Act for an inquiry to be held.

22. In terms of paragraph 4 of his note the sheriff presented his exercise of the discretion under Rule 5B of the 1993 Rules as an exercise different from that exemplified in Secretary of State for Works and Pensions v O'Donnell, a case in which the sheriff issued a separate decision. Mr McKenzie's submission was that the discretion afforded the sheriff under Rule 5B had to be exercised in the context of the 1991 statute and the Rules. The discretion had to be exercised so as to secure compliance with the purpose of the statute, namely, the holding of an inquiry under section 39A.

23. In paragraph 5 of his note the sheriff had referred to the very considerable procedural history but the sheriff had failed to have regard to this history and its terms in reaching his decision. The history was one of unfailing efforts by the appellants to effect service of the summary application in accordance with requirements of the court when it was quite clear that the defender was almost certainly seeking to avoid service. In paragraph 6 the sheriff had commented that it had been "well over one year" between the warrant to site and the warrant of arrest. That may be so but it reflected no fault whatsoever upon the appellant. Indeed the sheriff was wrong to say that the defender had been brought to court on the warrant to arrest issued in these proceedings. What had happened was that the defender was appearing in a criminal matter and as a matter of convenience it was arranged for him to appear in the civil matter on the same day.

24. In paragraph 7 of his note, in recording the history of the proceedings, the sheriff noted that "parties did not wish to proceed to proof" on 6 August 2009. It was unfortunate the sheriff had failed to record the reason the proof did not proceed which was of course that an arrangement had been reached between the pursuer and defender. The relevance of Secretary of State v O'Donnell to which the sheriff referred at this point escaped Mr McKenzie.

25. In paragraph 8 of his note the sheriff referred to the hearing on 26 November 2009. The sheriff referred to the length of time it had taken to bring the defender to court. This had not been the fault of the appellants yet the language the sheriff employed in this note tended to suggest he regarded the appellants as being at fault. There was nothing before the sheriff on 26 November to justify such an inference. The unwillingness, if that was the word, of parties to proceed to proof was because an agreement had been reach as to payment of the arrears. The sheriff suggested that proceedings would be "recommenced nearly two years later". This was quite inappropriate. It had been entirely the failure of the defender to engage with the process and all that the appellants had sought on 26 November was a procedure authorised by the 1991 Act and the 1993 Rules to enable the mandatory inquiry to be held. Mr McKenzie submitted the sheriff could have insisted upon the statutory inquiry taking place on 6 August 2009 but instead the sheriff had elected to sist the action in the face of a motion for its continuation by the appellants.

26. In paragraph 9 the sheriff had expressed the view that he felt it would be wrong to grant the appellants a second warrant to arrest the defender. He had referred to Cook v Wallace & Wilson though he recognised that the case was not "directly in point in the present proceedings". Nonetheless he appeared to rely upon it. Mr McKenzie submitted this was a fundamental misunderstanding by the sheriff. The defender had already been cited and had appeared and Cook v Wallace & Wilson was of no relevance at all.

27. In paragraph 10 of his note the sheriff expressed the view that in determining to dismiss the application there had been "no prejudice to the pursuers in refusing the application for warrant for arrest of the defender". Mr McKenzie submitted that prejudice was of no relevance to the appellants. They were a statutory body with a duty to collect child maintenance. In the case of parents with care such as the mother of the child in this case - the aliment could only be collected by the Agency. The fact that the defender might not be brought before the court because warrant for his arrest had been refused at the hearing of 26 November 2009 did not lead to an automatic conclusion that the application should be dismissed. There were other alternatives. The court had been under a duty to carry out a mandatory inquiry if the pursuers, the Child Support Agency, sought one. Whilst it was true that the appellants could commence proceedings afresh there had been no basis in law for requiring them to do so. The appellants had already invested a considerable sum of money to bring the defender to court and were entitled to insist upon the continuance of their proceedings.

28. In paragraph 11 of his note the sheriff had referred to section 6(1) of the Human Rights Act 1998 and whilst accepting that there could be no inquiry under section 39A of the 1991 Act without the presence of the defender it did not follow that there could be no further proceedings in the summary application unless and until the defender was brought before the court under section 39A(3) inquiry took place in his presence.

29. In considering the sheriff's note Mr McKenzie rejected what he regarded as the inference in the sheriff's note of a failure on the part of the appellants. The defender had himself been responsible for the length of time it had taken to effect service. The evidential inquiry set down for 6 August 2009 had been discharged on joint motion and it had been the sheriff's refusal for a warrant to arrest the defender that had caused the inability on the part of the appellants to being the defender before the court. This application had not been concerned with the defender's civil rights and obligations. They had been determined by the liability order earlier issued. What was being determined was whether the defender should pay a penalty for his failure to discharge his civil obligations.

30. With reference to paragraph 13 of the note Mr McKenzie pointed out that the warrant which had been granted in the process was a section 5B(1)(b) warrant not one under subsection A. As to paragraph 15 of the note the hearing on 26 November was caused by the sheriff's continuation of the case from 19 November. There had been intimation to the defender of the diet of 19 November and a certificate to that effect had been in process. That had been a courtesy intimation by the appellants because the defender had chosen not to oppose their motion for the recall of the sist. That motion had been intimated by sheriff officers. In continuing this line of attack Mr McKenzie submitted that paragraph 16 of the sheriff's note was simply wrong. There had to have been formal citation because the defender had appeared, had been represented by a solicitor and had lodged answers. Accordingly the defender was already convened in the process and it had been his failure to participate which had caused all the difficulties in the entire process. Under Rule 5B(1)(b) it did not matter if the defender knew he had to be in court on 19 or 26 November. The subsection was a "catch all provision".

31. Mr McKenzie submitted that the view expressed by the sheriff in paragraph 19 of his note was simply wrong. The sheriff did not have the power to grant a warrant under section 5B(1)(a) because the defender had by this time appeared. Cook v Wallace & Wilson was not concerned with an exercise of discretion but this was a case where the defender had been given opportunities to appear and where, previously, a warrant for arrest had been granted because of his failure to appear. With reference to paragraph 20 of his note Mr McKenzie confirmed that it had been an application he had made under section 5B(1)(b) of the Rules. With reference to paragraph 21 Mr McKenzie submitted that there had been no "continuations" between 13 May and 6 August 2009. The only other "continuation" in the whole history of proceedings had been where the sheriffs who had heard the application had not been satisfied on the issue of service on the defender. It was also inaccurate to state that the appellants had instructed Mrs Guthrie to appear on behalf of both parties to have the hearing discharged. The discharge had been on joint motion and had been agreed to by the sheriff in question. The sheriff had the option on 6 August to have refused discharge of the hearing if he was not satisfied with the basis for discharge. He had been under a duty to enable the appellants to have an inquiry under section 39A if the appellants sought one and it was not an inquiry "based on the arrest of the defender".

32. Finally, with reference to paragraph 22 of the sheriff's note, the appellants submitted that all the factors to which the sheriff had regard in the exercise of discretion were irrelevant. There had been nothing before the sheriff on 26 November to reflect fault or failure on the part of the appellants.

33. Paragraph 23 of the note talked of "the proceedings ... being properly started up again". The proceedings had not been completed until the sheriff chose of his own accord to dismiss them. It had been the sheriff's actions which had prevented any inquiry under section 39A taking place and the sheriff had misunderstood the implication of Secretary of State Work and Pensions v McCulloch. It was suggested that the appellants might have made a motion against dismissal but this had not been done because the appellants had expected there to be further procedure and had no indication at all that the sheriff was minded to do otherwise. His dismissal of the summary application flew in the face of the requirements of the 1991 Act and he was only entitled to do this after such an inquiry had actually been held.

34. With reference to the provisions of Article 5(1) of the European Convention on Human Rights Mr McKenzie referred me to the case of Perks & Others v UK. This was for non-payment of a community charge. Accordingly the imprisonment had been in respect of a civil liability. He drew my attention to the observations of page 13 of the report where Article 5(1) was narrated. The Article contemplated an exception to its provisions where the requirement was to fulfil an obligation prescribed by law and this was on all fours with the present case. Accordingly there had been no infringement of Article 5(1).

35. In Beak v UK it had been essentially held that the procedure prescribed by law was for an evidential hearing and the justices had failed to have such hearing. Accordingly there had been an infringement of Article 5(1) but in this case the Commission, the pursuers, had been deprived of the opportunity to have an evidential hearing.

36. Mr McKenzie drew my attention to the cases appearing at items 8 to 14 inclusive of his list of authorities. In these cases he submitted that sheriffs and sheriffs principal had had to consider wilful failure and culpable neglect on the part of a party found liable to pay under a liability order under the 1991 Act. In each and every case the court had had regard to the totality of the period during which the failure had occurred up and until the time of any evidential hearing.

37. Finally, Mr McKenzie invited me to allow the appeal, to recall the interlocutor of the sheriff of 26 November 2009 and to grant a warrant for the arrest of the defender in terms of Rule 5B(1)(b). He also sought expenses in the event that the appeal was successful.

Decision

38. I am satisfied that the Appellants' submissions are well founded. In particular, the Sheriff has failed to hold the mandatory inquiry in terms of section 39A of the 1991 Act. Whilst the decision in Secretary of State v McCulloch was not binding on him it seems to me to state the inescapable conclusion that the 1991 Act requires the sheriff to hold an inquiry and until that is done - in the presence of the liable person - the case should not be dismissed. I do not think the Sheriff can effectively avoid the statutory requirement by refusing a warrant for the debtor's arrest when that appears to be plainly the only way to bring the debtor before the court. There had been repeated continuations in the McCulloch case as well but the Sheriff Principal made it clear the inquiry was mandatory. I am unable to agree that the Sheriff - as he posits in paragraph 2 of his Note - was able to escape the effect of the McCulloch case simply because the debtor was not present on 26^th November.

39. I can understand the Sheriff's frustration at the length of time this summary application had been in court but it is quite clear to me, from a perusal of the process papers, that almost all the delay can be laid at the door of the defender. There seems to have been an inordinate number of attempts to effect service by post or officer of court before warrant for arrest was issued. It may be the case much earlier attention should have been given to securing the liable person's presence in court to enable the inquiry to be conducted. If the pursuers repeatedly ask for continuations for service it may be the court should take control of the progress of the summary application and propose a warrant for the arrest of the debtor in order to ensure the inquiry takes place. If the pursuers declined to seek a warrant then, it seems to me, the court would be at liberty to dismiss the application, the pursuers being unwilling to insist in their application.

40. I agree with the Sheriff that the normal method of bringing the defender before the court is by citation (para 9 of his Note). On the other hand where that has plainly been attended by difficulty - as was obvious from the process in this case - a warrant under Rule 5B(1)(b) of the 1993 Rules would seem the clear way to bring the application to a head. Cook v Wallace & Wilson is not authority for the proposition that a warrant under the 1993 Rules is illegal. The previous discharge of a proof, although on joint motion of parties, had been with the consent of the court. It is not, in my view, right to visit that particular delay upon the pursuers who are doing their best to secure compliance with a statutory obligation on the defender to pay the child maintenance assessment. If the court wishes to adopt a stricter approach to the control of summary applications for civil imprisonment that is matter for the sheriff but it is not right to adopt that approach at a very late stage in proceedings without allowing the pursuers some opportunity to comply with the new approach.

41. I am unable to follow the Sheriff's argument about Article 5 of the ECHR. A warrant granted by the court under Rule5B of the 1993 Rules is one granted as prescribed by law. The debtor when detained must be brought before the court forthwith. I cannot see how that would offend against Article 5.

42. Likewise I am unable to agree there is any infringement of the reasonable time requirement of Article 6. The debtor's civil right and obligation is presumably that to pay support for his child. The amount of that liability has been determined in accordance with a statutory scheme. There are appeal provisions in the 1991 Act. What is before the sheriff under the 1991 Act is a procedure to secure compliance with the determination of the civil right and obligation. I am not necessarily persuaded Article 6 has any application to proceedings for the collection of such statutory assessment. Even if it is applicable in this case the defender has substantially contributed to the delay by his failure to co-operate with the Agency and, indeed, the court.

43. Finally, I am not persuaded by the Sheriff's reasoning in paragraphs 20 and 21 that the pursuers have only themselves to blame. The "number of continuations" which preceded the first inquiry date seem to me, on a reading of the process, to have been as much the responsibility of the court as the pursuers. The pursuers did not "avail themselves of the opportunity" of the section 39A inquiry because they had reached an agreement with the debtor about payment and the court did not insist in the inquiry proceeding but rather, sisted the cause. It is not right, in my view, to lay the blame for that on the pursuers. If, in the future, the court intends to control the progress of such summary applications more expeditiously then it is important the parties understand that from the outset.

44. I have granted warrant for the arrest of the Defender so that he may be brought before the court for the purpose of holding the inquiry. I have done so having regard to the history of non-co-operation by the defender demonstrated by repeated failures to respond to citations.