Scottish Sheriff Court Decisions

Disqualifies the said Thomas McNamara presently residing at 18 Ash Drive, Beith KA15 2DF from holding or obtaining a driving licence for a period of six months unless the aggregate amount in respect of which this Order is made is paid.

This warrant is made in respect of -

Amount outstanding under Section 38 of the Child Support Act 1991: (£4,167.12)

Amount in respect of the expenses of the Application: (£3,319.79)

Aggregate amount: (£7,486.91)

Sheriff

This case called for proof before me on 31 May 2005. The Pursuer was represented by Mr Hunter, solicitor; the Defender was unrepresented.

This is a Summary Application in terms of the Child Support Act 1991. I understood from the Pursuer's Agent that this was one of only three cases so far taken in Scotland as regards a crave for a sanction to be imposed for non payment of a Liability Order.

The Defender moved the Court to adjourn the proof as he indicated he hoped to revisit the question of the sum due by returning to Paisley Sheriff Court where orders for payment of aliment had been made. He hoped to have clarification, he said of what he thought he was due to pay. This motion was opposed by the Pursuer on the basis that a peremptory diet of 30 March the Defender had been allowed time to lodge answers but had failed to do so. Moreover to allow further time would prejudice the interests of the Pursuer in having the case determined promptly.

I refused the motion to adjourn as I came to the view that the Defender had had more than sufficient time to prepare his defence but had failed to do so. I also had to consider that the Pursuer had a substantial interest in having a resolution of the present cause. Further it seemed to me that the Defender's recourse to the Court at Paisley would not in fact affect the matter before the Court as the Court is directed in terms of Section 33(4) of the Act not to question the maintenance calculation under which payments of child support maintenance fall to be made. In these circumstances the Defender's proposed return to Paisley Sheriff Court as regards the sums due in terms of an alimentary decree would not assist him. Further in the present action the Court had to have regard to its duties and the test to be met in terms of Section 39A of the Act.

I also allowed the Pursuer without objection by the Defender to tender at the Bar and lodge a new Production (Number 22) and that during the Pursuer's cross-examination of the Defender.

As the Defender was unrepresented I outlined the procedures which the proof was to take and explained fully his right to cross-examine any witnesses the Pursuer might call and to give evidence himself and to call any witnesses he might have (although he had not intimated any witnesses in advance). I explained that at the end of the evidence he would be able to make submissions upon the evidence and also on the law. Standing his status as an unrepresented party I was careful throughout the proceedings to take time to make sure that Mr McNamara understood the proceedings. Additionally when he came to give his own evidence and to make submissions I afforded him considerable latitude which would, of course, not normally be afforded to a legally represented party.

The Pursuer called one witness, Mrs Susanne Walker, an enforcement officer employed as a civil servant by the Child Support Agency. She was taken through the Pursuer's Inventory of Productions and gave full evidence as to steps which the Pursuer had taken to recover the sums due in terms of the Liability Order made by the Court on 17 April 2000 and extracted on 2 May 2000. She also gave evidence of certain communications received by the Agency from solicitors then acting on behalf of the Defender which indicated that he had always accepted that he had the liability to pay and indeed accepted the sum claimed. Mrs Walker with some care spoke to the productions as regards the many and varied steps of diligence which the Pursuer had attempted in order to gain recovery of the sums due in terms of the Order. None of these steps had, in terms, met with any success. She was an impressive witness in full possession of the information on the steps of diligence attempted and I found her both credible and reliable.

She gave evidence which I accepted that only after all the steps of diligence had not met with any success that the decision had been taken to raise the present proceedings.

Mrs Walker was not cross-examined by the Defender on the essentials of the steps of diligence nor indeed on the sum due. She was however asked if the Defender's former wife was behind the raising of the present action. I disallowed that question, which was objected to, because it seemed to me clear that whether the Defender's former wife was or was not behind the action was irrelevant. The action was being taken by the Pursuer because of the Defender's apparent failure to pay the sums due and owing in terms of the Liability Order and because the attempts at diligence had failed. Under cross-examination Mrs Walker indicated that had the Pursuers been able to make a deduction from earnings Order they would have done so but that as the Defender had not told the Pursuers of his employment and the changes in his employment over the years that consequently the Pursuers had to continue the steps of diligence including poinding (as it then was) and letters of inhibition. The Defender had an obligation to tell the Pursuers of his employment but had failed to do so thus rendering the steps of diligence embarked upon necessary. I accepted Mrs Walker on these matters as both clear and persuasive. She was asked by the Defender why the Pursuers had not taken proceedings to sequestrate the Defender. Mrs Walker gave evidence which I accepted that legal advice had been obtained from the Advocate General that such a step would not be legally competent where there was an outstanding Liability Order. It seemed to me that the Pursuers had not lightly embarked upon the present proceedings.

I accepted that Mrs Walker had calculated the sum due to the Pursuers immediately prior to the proof and had checked again to see if any payments had been received from the Defender. I accepted her evidence that no sums had ever been received in terms of the Liability Order and that the sum due was still outstanding.

The Defender gave evidence on his own behalf. I did accept his evidence that he had suffered a back injury some three years ago (he could not be more specific) which prevented him from working at the present time. I accepted his evidence that he now lived with his new wife and family of two children and that he did not receive benefit as his wife earned a salary that prevented him claiming for benefits himself. He advised the Court, and I accepted him on this that he might be eligible for Disability Living Allowance but had only recently sought advice on such a claim and had not yet made any claim. He was also making a claim for reparation following the accident above referred to and hoped to recover damages but there was no evidence that such a claim was at present before any Court for determination. He was vague on that matter as indeed he was on much else. He accepted in cross-examination that since the time that the Liability Order had been made that he had had periods of employment. I accepted as true his evidence that he had obtained employment through an employment agency and had earned up to £300 per week prior to taxation. He was cross-examined in terms of Production Number 22 and he accepted that it was accurate in detailing the times when he would have been in employment during the currency of the Liability Order.

Significantly for the determination I have to make - of which further details come later in this note - he was clear in his evidence that he had an objection in principle to the Child Support Agency's statutory duty to recover sums due. He gave evidence which was telling in my view that he would not pay sums due when he was not allowed to see the child for whom the child support payments were originally to be made to the Agency. He gave evidence that was also, in my view evasive, as to the monies he received from acting as a sergeant instructor in the Army Cadet Force. I accepted his evidence that he was involved weekly with training cadets and once per year organised a camp of two weeks duration for cadets. I accepted his evidence that he was paid both for these weekly and annual camp duties. However he was evasive about the sums paid and continued to refer to these emoluments as expenses only. I did not, on observing him, find him credible on this. It seemed to me that he was receiving sums which he was not willing to disclose to his opponent or to the Court. He gave evidence, which was again in my view telling, that any monies he received previously from employment had been applied to meet the needs of his new family but he was unable or willing to give full details of the sums received.

On seeing him given his evidence-in-chief and in cross-examination I was drawn to the view that he was an untrustworthy and unreliable witness. He accepted that he did not need his driving licence to work at present and indeed by his account, which on this matter I could accept him, he was not likely to work for the foreseeable period due to the injured back. He gave evidence that he wished to maintain his licence to continue to do "voluntary work", as he termed it, with the Army Cadet Force and also to assist his disabled parents and attend to his daughter and sons needs for transport to school and other places.

He gave evidence, which on observing him I could not accept, that if he had money he would pay the sums due to the Pursuer. This claim in my view fitted ill with his expressed opposition to paying any sums due to the Child Support Agency and his opposition, in principle, in paying any sums due to the Pursuers. He also deponed, and I accepted him on this as a telling aspect, that he felt his former wife was behind the current action. I was drawn to the view that he had wilfully refused to pay sums due when he had been working and also now refused to pay when he had income, although unspecified, from acting as a sergeant instructor for the Army Cadet Force.

Mr Hunter asked me to accept Mrs Walker as reliable and credible. For the reasons I have given above in dealing with Mrs Walker's evidence I have given effect to the Pursuer's submissions. Mrs Walker's credibility and reliability was not in any event challenged by the Defender. Mr Hunter drew to my attention the existence of the Liability Order made by the Court in April 2000. He further drew my attention to Section 33(4) which states that the Sheriff shall not question the maintenance calculation under which the child support maintenance figure came to be made. Thus the Court could not have regard to any claim by the Defender that sums due had been paid in terms of aliment awarded by the Court in Paisley which was the reason which had been raised when the Defender had sought an adjournment. Mr Hunter submitted that the Court was bound to accept the terms of the Liability Order which had been made by the Court.

The Pursuers, Mr Hunter submitted, had thereafter, as Mrs Walker's evidence clearly showed, exercised all diligence as authorised by Section 38 of the Act, without success. Consequently the Pursuer had now required to come to Court as the sums due had not been recovered.

The Court thereafter had to have regard to Section 39A of the Act which provides that where the Pursuer has sought to recover sums due in terms of Section 38 the Court requires to consider, on the Pursuer's application, whichever the Court considers appropriate in all the circumstances of either the issue of a warrant for imprisonment of the liable person or an order for him to be disqualified from holding or obtaining a driving licence.

At that point the Court required in terms of Section 39A(3) in the presence of the liable person to inquire as to

The Court means the "Sheriff Court" in terms of Section 39A(6)(b).

In the present case, Mr Hunter submitted that the test had been met. The Defender did not need a driving licence to earn his living. He has means formerly from his periods of employment but crucially now that he was receiving payments for working with the Army Cadet Force. The Defender had been wilful in his refusal - the Defender had said he would not pay for a child whom he did not see.

Mr Hunter asked the Court to consider that if I was not prepared to hold that there had been "wilful refusal" there had been at least "culpable neglect". This could be found Mr Hunter submitted by reference to the Defender's changes of employment and the earnings which he was receiving which were not used to meet his liability in terms of the Liability Order. Moreover the Defender did not advise the Pursuer of any changes of employment or periods of unemployment.

Mr Hunter submitted that if the statutory test was satisfied the Court had a discretion as to whether to order the committal of the Defender to prison or to disqualify him and the Pursuer was entitled to be heard on that question (Section 39A(4)) and the liable person had the right of reply.

Mr Hunter was, in terms, content to leave the choice of any sanction to the Court but observed that given the difficulties in the Defender's own life (with reference to his parents ill health and his responsibility to his new wife and children) disqualification may be thought by the Court to be more appropriate. However Mr Hunter said in the particular circumstances of this case it would not be appropriate to make a disqualification order but then to order its suspension on any conditions (such as payment) in terms of Section 40B(1)(b) as here the Defender was apparently not in the position to pay the total sum due and any condition would not have any practical benefit.

As to the length of any disqualification Mr Hunter respectfully left that to the discretion of the Court. He was not able to refer to any Scottish authority under this section of the Act. I understood from him that there had been perhaps two other cases within Scotland but in neither of these cases, although determinations had been made, had the Sheriff thought it appropriate to issue a written judgment. I myself have felt bound to do so in order to meet the requirements of Section 50 of the Sheriff Courts (Scotland) Act 1907. He was aware from personal involvement of a case before another Court that the Court had ordered a disqualification period of six months. Mr Hunter referred to no English Authority.

The Defender, clearly, not being legally qualified could not usefully submit on the legal tests. I was careful to outline these to him to try and assist his submissions. He reminded the Court of his views as regards the Child Support Agency and his concern that he should require to pay for a child he did not see. He reiterated that his licence was useful for his family and very important for his voluntary work with the Army Cadet Force. It would be better for him if he could in fact be sequestrated rather than have to pay to the Liability Order or indeed to suffer any sanction for not meeting his obligation to pay the Liability Order.

I was not addressed on the standard of proof which the Pursuers required to meet. This in my view is an important question to resolve.

It seems to me that the Court's duty on its inquiry in terms of Section 39(3)(a) and (b), which is to say whether the liable person needs a driving licence to earn his living and the liable persons means, that the Court requires to be satisfied only on the normal civil standard namely the balance of probabilities. These inquiries, after all, are conducted in terms of a Summary Application, a civil proceeding.

More difficulty however is presented when the Court turns to consider what, if any, sanction ought to be imposed following upon its inquiry.

As regards imprisonment, Section 40A(1) provides, in part,

"If, but only if, the Sheriff is satisfied that there has been wilful refusal or culpable neglect on the part of the liable person he may

As regards disqualification, Section 40B(1) provides, in part,

"If, but only if, the Court is of the opinion that there has been wilful refusal or culpable neglect on the part of the liable person it may

The Court consequently requires to ask itself to what standard should the Court be satisfied and consequently what standard does the Pursuer require to meet.

Assistance can be found in considering the full bench decision of Mullan v Anderson 1993 SLT 835. There are only two standards of proof in Scotland - on a balance of probabilities and beyond reasonable doubt - there is no intermediate standard (per Lord Morison at page 842).

In my view a possible solution to the problem can be found in examining the potential sanctions open to the Court.

As regards imprisonment, it seems to me that the Court requires to be satisfied beyond reasonable doubt as it must be in an analogous proceeding, namely contempt of court (Gribben v Gribben 1976 SLT 266, at page 269 and Johnston v Johnston 1996 SLT 499, at page 500).

As regards disqualification, too, I have come to the view that the standard of proof which the Court has to apply is beyond reasonable doubt. It seems to me that in looking at the terms of Section 40B(1) disqualification here is not a civil penalty on a proper construction of the particular legislation in focus (1^st Indian Cav. Club Ltd v HM Commissioners for Customs and Excise 1998 S.C. 126).

It might be argued that the use of the word "opinion" in Section 40B(1) as opposed to the term "is satisfied" in Section 40A(1) might not be thought to require proof beyond reasonable doubt but rather to imply a lesser standard of proof, proof on the balance of probabilities. However it does seem to me that the practical effect of disqualification is punitive rather than being a civil penalty (which latter in terms of 1^st Indian Cav. Club op cit would only require proof on a balance of probabilities). I have proceeded on the basis that Section 40B(1) requires the Court to be satisfied beyond reasonable doubt as to the liable person's wilful refusal or culpable neglect. It sees to me the sanction of disqualification is analogous to the categories which do require proof beyond reasonable doubt (where for example imprisonment is possible, Lord Hamilton at page 137 in 1^st Indian op cit). In my view it is the practical effect of the sanction which is determinative and disqualification must be regarded as a punitive sanction.

I do not feel that the Pursuer requires corroboration - this is a civil proceeding. Moreover I have had regard to an analogous case in criminal law where a person may be proved to have breached a community service order, on the evidence of one witness, notwithstanding that a criminal sanction may follow. (Criminal procedure (Scotland) Act 1995 Section 239(6)).

In the particular circumstances in the present case in examining the evidence in detail and having considered the submissions of parties I was satisfied on a balance of probabilities that the Defender did not need a driving licence to earn his living and that he had means to pay. I was satisfied beyond reasonable doubt that he had wilfully refused to make payment under the Liability Order as was required of him. This was evidenced in particular by the Defender's own evidence that he would not pay an Order which he considers not only "unjust" but also where any willingness to pay on his part is predicated upon his belief that he should not require to pay when he does not get to enjoy contact with the child who was the subject of the original Liability Order.

I accept that the Pursuers have satisfied the requirements of Section 38 of the Act as evidenced by Mrs Walker's uncontroverted, clear and compelling evidence. I am satisfied beyond reasonable doubt, as I have explained, that the Defender has wilfully refused to pay the Liability Order.

As for the choice of sanction, I was not directed to any authority by the Pursuer nor have my own researches found any.

It seems to me that imprisonment may be thought to be the "last resort" of the Court as it is often seen to be in civil proceedings for contempt of court.

Parliament has provided in effect a choice for the Court and disqualification seems to me to be the sanction which meets the circumstances of the present case.

I have found that the Defender does not require his licence to earn his living as required by Section 39A(3). His submissions as to his personal difficulties and any impact of disqualification on his family are not in my view strictly relevant in terms of the Child Support Act. I have found that he has means - he earns income from the work he does for the Army Cadet Force and has held employment until three years ago. Consequently within the period covered by the Liability Order and its current enforcement he has had the ability to pay but has refused and in my view wilfully so to do.

I am satisfied that it is a proper exercise of the Court's discretion to impose a period of disqualification upon the Defender so as to uphold the law contained in the Child Support Act but I require to tailor the sanction to the circumstances of the present case.

In the selection of a period of disqualification the Court has a wide discretion up to two years. I hold that two years, being the maximum, must be retained for the case which is at the highest end of wilful refusal or culpable neglect. I do so by analogy with penal statutes which provide a statutory maximum and where guidance comes from the High Court that the maximum should be retained for the most severe infractions of the law, or where there has been repeated offending against a particular statute.

I have had regard, too, to the lack of history of Mr McNamara having been found liable to suffer a sanction in terms of Section 39A. It seems to me that as Section 40B(7) of the Act allows the Secretary of State to make a further application in terms of 39A if the amount due has not been paid in full when the period of disqualification specified in the disqualification order expires, it may be anticipated that there may well be cases where repeated applications in terms of Section 39A may require to be made to the Court. Having regard to that interpretation I am reinforced in the view that the maximum period of disqualification of two years must have been anticipated to deal with either the worst case of wilful failure or repeated failures to pay after initial disqualification and not necessarily to the first application of a sanction in terms of Section 40B, in the average case.

In all the circumstances I am satisfied that a period of six months disqualification would be proportionate in this case.

However there remains one difficulty before any final Order can be made. I will therefore require to hear further submissions from the Pursuer and the Defender. Neither the Pursuer's agent nor the Defender addressed me on the significance of Section 40A(3). That section provides that a disqualification order must state the amount in respect of which it is made which is to be the aggregate of the amount mentioned in Section 35(1) or as much of it as remains outstanding and secondly an amount (determined in accordance with regulations made by the Secretary of State) in respect of the costs of the application under Section 39A.

In my view I required to hear parties on this before making any final Order and I resolve to hear them at the date which I originally fixed for advising namely 22 June 2005.

On 31 May when I made Avizandum I required the Defender to attend on 22 June and to bring his driving licence with him. I did so not because in any way the matter had been prejudged; I had taken the matter to Avizandum to reflect upon the evidence and submissions and to examine the law before issuing judgement. However I did so as it seemed to me to be only good practice in such cases to continue to require the Defender to be present lest an Order in terms of Section 40B were to be made. The practical difficulty in Scotland of intimating and enforcing any Court order of disqualification in the absence of the Defender, would be most difficult indeed. I am also strengthened in the view that the Defender should be present by the terms of Section 39A(3) which requires the Court to carry out enquiry in the presence of the liable person. It seems to me that the scheme of the Act anticipates that the Defender should be present at every significant stage of the proceedings, whether he be legally represented or not.

Accordingly in the present case I resolved that should I require further continuations before the issue of the proposed disqualification order (in terms of the Act of Sederunt (Child Support Rules) Amendment 2001 Rule 5E(1)) I should require the Defender to be present with his driving licence.

On advising on 22 June, I provided an earlier draft of this Note to both parties and consequently advised the Defender that he would be liable to disqualification. The question of expenses however remained unresolved on that date and accordingly I heard parties on the question of the costs incurred by the Pursuer in making the application in terms of Section 39A of the Act. I required to hear parties because Form 10 of the Act of Sederunt (Child Support Rules) Amendment 2001 requires (in terms of Rule 5E) that where a disqualification order is being made in terms of Section 40B of the Act there requires to be inserted an amount in respect of the expenses of the application. The assessment of expenses is necessary before the Sheriff formally issues the formal order of disqualification of the Defender from holding or obtaining a driving licence.

Mr Hunter, the Pursuer's solicitor, advised me that his view was that the Sheriff would require to insert the costs so incurred. He drew my attention to the Child Support (Civil Imprisonment) (Scotland) Regulations 2001 Regulation 2 which require, in the case where a Sheriff grants warrant for committal to prison of the liable person, that the warrant in such a case shall include expenses of commitment of such amount as in the view of the Sheriff is equal to the expenses reasonably incurred by the Secretary of State in respect of the expenses of commitment. Mr Hunter advised that this did not seem to relate to an order made in terms of Section 40(B) of the Act and there was nothing other in the subsidiary legislation which assisted.

He further advised me that in the case which he had conducted in another Court the Sheriff had fixed expenses at Nil notwithstanding his motion for the expenses of the cause. It appeared that this may have been due to the fact the solicitor had not been able to provide a figure and perhaps not surprisingly in these circumstances the Sheriff had made no order for expenses. Mr Hunter then submitted that as this was a summary application the Court might wish to have the expenses of the cause taxed in normal fashion. He did advise me that he had, however, prepared an account in brief form and that if the Court wished the Court might be invited to consider that account today and fix the expenses accordingly.

The Defender was again unrepresented and was not in a position, not surprisingly, to make any significant submission on the question of costs.

It seemed to me that having regard to the interests of the Defender and indeed the wider interests of justice, the question of what expense is to be fixed should be open to scrutiny by him and indeed challenged by him if so advised. The interests of justice in my view required that I should make an order that an account of expenses should be given and should be taxed in the normal way.

I thereafter appointed procedure for the giving in of an account of expenses by the Pursuer and a diet of taxation. I again decided that whether or not the Defender chose to attend the diet of taxation he should be required to attend at the next calling of the case on the procedure roll as at that time, the question of expenses having been resolved by the Auditor, the Court would be in a position then to pronounce a final interlocutor.

Ultimately there was some difficulty on the question of expenses and the case required to be continued until 28 September 2005 when the Defender was again present with his driving licence. The matter of expenses having been resolved, the Court was in a position to pronounce a final interlocutor and the Defender was disqualified from holding or obtaining a driving licence for a period of six months from 28 September 2005.

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