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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2025] CSIH 12
F32/22
Lord Malcolm
Lady Wise
Lord Armstrong
OPINION OF THE COURT
delivered by LADY WISE
in the reclaiming motion
by
CD
Pursuer and Reclaimer
against
ND
Defender and Respondent
Pursuer and Reclaimer: Pugh KC, Donachie; SKO Family Law Specialists
Defender and Respondent: Clark KC, CA MacLeod; Miller Samuel Hill Brown
9 May 2025
[1]
In this action for divorce and financial provision raised by the husband, the
Lord Ordinary heard a preliminary proof on the question of the correct "relevant date" for
the purpose of fixing and valuing the parties' matrimonial property. The husband reclaims
(appeals) against the determination that the relevant date was 6 January 2020.
[2]
The Family Law (Scotland) Act 1985, section 10(3) defines the relevant date as "... the
earlier of ... the date on which the persons ceased to cohabit [and] the date of service of the
2
summons ...". Cohabitation in this context means in fact living together as man and wife (or
as civil partners); 1985 Act section 27(2).
[3]
Before the Lord Ordinary the husband's position was that the relevant date was
30 December 2017 which failing March 2018. The wife contended that the date on which
the parties had finally ceased to cohabit was 6 January 2020 and did not advance any other
possible dates.
[4]
The Lord Ordinary having determined the date to be 6 January 2020, when the
wife and three of the parties' children left to holiday on a cruise without the husband or
the eldest child. The husband's reclaiming motion against that decision raises issues of the
identification and application of the correct legal test, the Lord Ordinary's conduct of the
proof and his assessment of the evidence.
Evidence
[5]
The evidence relating to the date on which the parties ceased to cohabit is set out in
some detail in the Lord Ordinary's opinion; [2024] CSOH 98 and the following is a brief
summary. The parties married in 1998 and have four children, given fictionalised names of
Simon, Andrea, James and John by the Lord Ordinary. They moved to live in Australia as a
family in 2013 due to the husband's work commitments. From August 2016 the husband
and Simon returned to live in Scotland, again because of a change in the husband's
employment commitments. Thereafter the parties' living arrangements involved them
spending physical time together only during holidays.
[6]
Difficulties arose in September 2017 when the husband became aware of text
messages between his wife and another man. He secured legal advice in Scotland around
that time and in October 2017 he consulted an Australian lawyer. Thereafter he discovered
3
further text messages, sexual in nature, between his wife and another man. A confrontation
took place on 30 December 2017 when the husband challenged his wife about the text
messages and a Tinder profile she had created and that had been disclosed to him by Simon
and Andrea. Examination of the wife's mobile telephone disclosed dozens of extremely
graphic sexual messages including images. The wife denied any sexual infidelity at that
time. On that matter she was untruthful in an affidavit she swore for these proceedings
shortly prior to proof. Her second affidavit was then tendered just prior to the
commencement of the evidence. In that second affidavit she admitted the infidelity and her
previous false denial.
[7]
Following the Christmas 2017 visit, the husband and Simon returned to Scotland.
Thereafter, the parties continued to interact by messaging each other and by spending
holidays together. There were a number of affectionate messages sent by the husband to the
wife during the first half of 2018. In July that year the whole family went to Florida on
holiday. The Lord Ordinary accepted the wife's evidence that the parties shared a bedroom
and, in accordance with the wife's account, that they had sex.
[8]
The parties planned for and travelled to Queensland over New Year 2018/2019 for
a holiday there. Both parties continued to wear their wedding rings. The wife became
unwell during the trip and the husband took her to hospital. On 3 April 2019 the husband
acknowledged his wife's birthday and sent her a message and a gift for which she thanked
him. The following month the parties discussed holidays for the rest of that year. The
husband and Simon were living in a flat in Edinburgh at that time. The wife and the
younger children travelled to Scotland and stayed in that flat. The parties did not share
a bedroom. In November 2019 the husband stayed at the family home in Australia for
4
Andrea's birthday. The Lord Ordinary accepted that the parties shared a bedroom and a
bed during that trip. Simon did not accompany his father on that occasion.
[9]
The husband and Simon stayed at the family home in Australia over the Christmas
and New Year period 2019/2020. The husband slept on a sofa bed in a hallway or alcove
within the family home. Prior to that holiday period the wife had arranged a cruise for
herself and the younger children to begin on 6 January. The husband and Simon returned to
Scotland shortly thereafter.
[10]
In about December 2018 the husband received a substantial sum of money in
connection with shares he had previously held in his employer's business. He did not
disclose the receipt of those sums to his wife she too had held shares and received a sum
of money for the sale of those which she paid into the parties' joint account. In April 2019
the husband purchased a house in Edinburgh. He made the relevant offer in April 2019,
concluded missives in May 2019 and took entry to the property on 17 July 2019 the day after
his wife and the younger children left Scotland to return to Australia. He did not disclose
the purchase to his wife, who did not know until 2021 details of the address to which he and
Simon had moved in 2019.
The Lord Ordinary's decision
[11]
There was no dispute about the relevant law before the Lord Ordinary. The correct
approach was agreed as being that stated by the Lord Justice Clerk (Carloway) in HS v
FS [2015] SC 513, at paragraph 16 where he cited from his own decision in Banks v
Banks 2005 Fam LR 116 at paragraph 33. While the illustrative factors mentioned by
Professor Clive in The Law of Husband and Wife (4th Edn, 1997) should be taken into account,
5
these were not exhaustive and the court's decision must be based on the particular facts of
the case.
[12]
The Lord Ordinary decided that the nature of the parties' cohabitation had changed
materially and irreparably following the wife's departure with the younger children on the
cruise in January 2020. He identified 11 factors (paragraphs [62] [72] inclusive) supporting
his conclusion that cohabitation between the parties as husband and wife had continued
until that time. He then addressed what he described as "... more general matters ...",
including the receipt by the husband of the substantial sum of money for his shareholding
and his subsequent purchase of a property in Edinburgh. He considered that there were "...
signs of cracks in the parties' relationship" during 2019 when significant decisions appeared
to be made in the absence of consultation with the other and they ceased sharing a bed.
Ultimately, however, it was the act of the planned cruise with only the wife and the three
younger children that signified a point at which the parties "... consciously let go of their
relationship ..." (paragraph [79]).
Submissions for the reclaimer
[13]
Senior counsel for the husband pointed to what he said were a number of errors
of law by the Lord Ordinary. What was required was an objective assessment by the
Lord Ordinary of when the parties ceased living together as husband and wife. The whole
of the admitted period of cohabitation ought to be considered and not just the disputed
period, to avoid ignoring the potential significance of a change in circumstances. It was
necessary to identify the usual nature of the parties' cohabitation in order to understand
when a change took place. During the period 2013 2016 after the family moved to
Australia, the husband travelled extensively in the course of his employment. Then there
6
was a bigger change in 2016, when he and Simon had moved back to Scotland. The
Lord Ordinary's approach was to compare only the period from 2016 onwards with the
post-2017 period. He failed to recognise the significance of the confrontation, which took
place on 30 December 2017, treating it as the "starting gun" rather than the culmination of
the breakdown of the parties' marriage.
[14]
Having started from the wrong perspective, the error was then in the underlying
assumption of the Lord Ordinary that he required to pick between two dates. For example,
at paragraph [76] of his opinion, when dealing with the purchase of the Edinburgh property
the Lord Ordinary stated that this "... might be considered to weigh against the defender's
asserted date of separation. It does not, however, necessarily support the pursuer's asserted
date". He had failed to recognise that he was not limited to determining between two dates
but required to fix any date that was objectively the correct one on the evidence.
[15]
There was extensive evidence supporting the husband's esto position that, even if the
parties continued to cohabit in any sense after December 2017 it was over by the summer
of 2018. Text messages with any signs of affection ceased in around April 2018; even on the
Lord Ordinary's findings the parties last had sexual intercourse in July 2018; neither party
acknowledged or recognised their 20th wedding anniversary on 20 August 2018; thereafter
their communications were restricted to matters relating to the children. While March 2018
had been advanced as the fall back position at proof, it had been for the Lord Ordinary to fix
the date objectively supported by the evidence and the husband's fall back positon was now
that there was no cohabitation as husband and wife after the summer of 2018. Events
following that date (the increasingly fractious tone of the parties' communication
during 2019, the receipt of the proceeds of sale of the shares and the purchase by the
7
husband of a home for him and Simon that year provided retrospective support for an
earlier date.
[16]
The Lord Ordinary's conduct during the proof had tainted his assessment of the
evidence and rendered the proceedings unfair. No argument of apparent bias was
presented. The conduct complaint was that the Lord Ordinary had "descended into the
arena" by taking too active a part in the examination of witnesses Yuill v Yuill
[1945] 1 All ER 183 cited with approval by the Court of Appeal in K v L (Children: Fairness of
Hearing) [2023] 4 WLR 61. A hearing which has been conducted unfairly cannot be saved by
a determination that might otherwise be correct. As procedure in the Court of Session does
not support sending such a case back for rehearing (MacLeod's Legal Representatives v
Highland Health Board 2016 SC 647) if the Lord Ordinary's conduct had been so unfair as to
vitiate the proceedings, this court had the Affidavits and transcript of evidence and should
make the decision of new itself.
[17]
The authorities draw a distinction between evidence and submissions in this context.
It was the number and content of the interventions, particularly during the evidence of the
parties on material issues that gave rise to the challenge.
[18]
There had been 230 separate interventions by the Lord Ordinary during the evidence
of the parties alone, although interventions may have consisted of more than one question.
Of those, 56 were the sort of routine interventions that were unobjectionable, such as finding
a page number or inconsequential points of clarification. That left 174 interventions, not all
of which were objectionable but gave a flavour in terms of frequency. Seven specific
examples of those claimed to be unfair were given. These were:
8
i.
During the husband's evidence, on the third day of proof, the Lord Ordinary
raised the question of the legal approach to fixing a relevant date. He narrated
a number of things that the husband had accepted and stated:
"... we've covered off the pursuer, we've covered off the defender, and
we've covered off everybody else being third parties ... and, if I approach
that circle of evidence objectively, subject to all of the other evidence in the
case ... but it's the pursuer's case for him to establish his relevant date,
subject to anything you pull out in re-examination ... once you get to 2019
... well, probably December 2018, if an objective view is that 2017 wouldn't
stand, how far do we need to get to 2020?..."
This amounted to the judge expressing fairly clear conclusions without hearing
all of the evidence. It was indicative of his having already formed a view that
the husband's relevant date of December 2017 would be rejected.
ii.
During cross-examination of the wife about her text messages with other men a
concession was elicited that she could see the messages could be interpreted as
being at odds with a commitment to marriage. The Lord Ordinary intervened
and suggested that if his own wife had an affair or affairs and he forgave her
and carried on the marriage would be continuing irrespective of past
behaviour. He challenged counsel for the husband that she was simply trying
to go over messages that showed the wife in a poor light.
The Lord Ordinary had missed the point of the evidence being elicited in
cross-examination at that point, which was to support the husband's case that
the wife's actings and his discovery of them were so inconsistent with the way
in which their marriage had been conducted previously the confrontation was
the catastrophic event in the marriage.
iii.
Under cross-examination about her birthday in April 2019 counsel elicited a
concession from the wife that, in contrast with previous years, the husband had
9
not sent her a physical card for her birthday and her acknowledgement of the
gifts she had received supported that they were from the children and not from
him. The Lord Ordinary interrupted and disagreed with that interpretation of
the texts being put to the witness.
The significance was that a key aspect of the parties' dispute was the nature of
correspondence that took place during 2018 and 2019.
iv.
Close to the start of the husband's evidence the Lord Ordinary interrupted the
husband's examination-in-chief and asserted that he understood that he was
going to get two subjective viewpoints and then conduct an exercise of
pointing to independent evidence to support or undermine the subjective
beliefs. He went on "Do you agree? Is that how it's going to play out, broadly,
so ... I'm just trying to make sure you understand how I am thinking. "
The intervention was inexplicable given that this was the first day of the first
witness during a passage when he was being asked specifically about a change
in position that morning about a lie in the wife's affidavit that she had sought
to correct in a supplementary affidavit at the start of the proof.
v.
On day 2 of the proof the Lord Ordinary interrupted cross-examination of the
husband to ask a question about three dots at the end of a message he had sent
his wife in February 2018. The husband answered that the dots just indicated
that he was a bit sad to be leaving the family. The Lord Ordinary challenged
that and asserted that three dots at the end of a message invited the recipient to
think what might be at the end of the sentence. When the witness hesitated the
Lord Ordinary asked "That's why you may have done it?"
10
The Lord Ordinary's questions had nothing to do with the line being explored
by counsel at that point. Even had the question been a legitimate one, the
passage illustrated that he was not seeking clarification, rather that when he
did not receive the desired answer he followed the trail like a line of
cross-examination.
vi.
Again during the husband's cross-examination it was being put to him that in a
photograph taken at a theme park on the family holiday to Queensland, his
hand was on his wife's shoulder. The husband had responded that from
looking at the photograph he was not sure whether it was on his wife's
shoulder or that of his daughter. The Lord Ordinary interrupted stating
"Come on, look at ... [w]hich child is in the yellow T-shirt ... [l]ook to the right
of (child's name) head, yes? ... [w]hat can I see on the shoulder?" and the
husband accepted that he could see his hand there although he did not have his
spectacles on.
This was tantamount to a cross-examination of the husband by the judge on
what the photograph showed. On being challenged by the person making the
decision it was hardly surprising that the witness's answer changed as a result
of the questioning. The particular dynamics of the family on the holiday in
question was a material issue.
vii.
During the cross-examination of the wife counsel for the husband put to her
that she had experience as a financial analyst and that she had signed a
document to have shares allocated to her. She was being challenged about her
claim that she did not know what the effect of the document was. The
Lord Ordinary interrupted and stated:
11
"Right, if it assists your approach to this line of your evidence. I've got an
economics degree, I've undertaken an MBA, okay. And I'm married to a
management accountant. I have an economics degree, a law degree. I
undertook an MBA. My wife deals with our investments. I have no idea
where the money is invested. She deals with it all. I trust her and that's it.
And I've signed lots of documents that she tells me. Okay?"
The passage continued with the Lord Ordinary speaking of a judge from
Northern Ireland who had stated that there were three principal facts in every
case and if you cannot win the three principal facts you were not going to win
the case. He said to counsel "Your cross-examination is very considered, it's
very structured. It's, it's very good but we're skirting around the edges of, of
the principal facts."
This was an extraordinary passage that was conducted before the witness had
given an answer to a perfectly valid question. The judge had offered to the
witness in terms what her answer to the question should be. It ends with a
critique of the husband's counsel's advocacy.
[19]
These were just a few illustrations of the many interventions and interruptions
during the proof. The interventions were generally unfavourable to the husband and
favourable to the wife. In the last example the witness never ultimately answered the
question following the judge's intervention and counsel simply moved on. The
Lord Ordinary misunderstood the task he was faced with and illustrated an unwillingness
to focus on the husband's key position in the case. This was as clear an example as the court
could find of the descent into the arena described in Yuill.
[20]
There was a challenge also to the way in which the Lord Ordinary had dealt with
credibility and reliability. His approach was flawed and internally inconsistent. He had
stated (at paragraph 59) that he accepted that the defender had been untruthful about her
12
relationship with other men not only to the pursuer but also to her lawyers and the court.
He then appeared to prefer the defender's evidence over that of the pursuer in relation to
key issues including in relation to when the parties had last shared a bed and/or had sexual
intercourse. He had failed to explain the basis on which the untruthfulness in the defender's
original affidavit could be differentiated from the oral evidence she gave at proof. No
proper basis was given for the conclusion the Lord Ordinary reached that he was "... more
cautious ..." about the pursuer's evidence. The findings in relation to credibility and
reliability of the parties were plainly wrong.
[21]
The evidence of two of the pursuer's witnesses (PC and SB) was rejected for reasons
that were plainly wrong. Those witnesses had given evidence by affidavit and proof. The
evidence they gave as to the timing of the pursuer's discussions with them about his
decision to end the marriage was supported by others in relation to timing.
[22]
If satisfied that the Lord Ordinary's decision was flawed in any of the respects
contended for, this court should substitute its own decision. The very latest point at which
the parties separated, even accepting the Lord Ordinary's finding about sexual intercourse
in Florida in July 2018 would be at that point.
Submissions for the respondent
[23]
There was no basis to interfere with the Lord Ordinary's decision on the relevant
date. There had been 9 days of evidence, which supported the much later relevant date of
6 January 2020. There had been evidence about some unhappiness in 2016 when the
defender did not want to accompany the pursuer back to the UK to live. There was,
however, an agreement that the marriage had continued after that time. It was
understandable that the Lord Ordinary focused on the disputed period given the different
13
relevant dates advanced by each party. He had not ignored the confrontation between the
parties in December 2017 but the parties' accounts of that incident had differed. The events
of December 2017 required to be put in context. On no occasion after that date and time
did either of the parties to the marriage mention separation or communicate about them
no longer living together. The wife's evidence was that she had no understanding of being
separated until well after the cruise in January 2020. There was no absolute requirement to
look at the whole period of the marriage albeit that circumstances may so require. The
Lord Ordinary had been referred to Banks v Banks and had raised the impact of that case
with parties. It could easily be inferred that he knew that it was open to the court to find a
date other than those advanced by the parties. The pursuer's esto position had changed
since proof. He had advanced a vague esto position of March or April 2018, at which time
he was sending flowers, cards and affectionate messages to his wife, but now proposed late
summer 2018.
[24]
While there was no overt acknowledgement of the husband's esto case in the
Lord Ordinary's opinion, the clear implication was that he knew a different relevant date
was possible. When dealing with evidence of the husband's acquisition of property in 2019
(at paragraph 76) the Lord Ordinary recorded that the circumstances weighed against the
defender's asserted date of separation but did not support that advance by the pursuer.
However as he did not consider that particular aspect as decisive, that must have been
that he understood that relevant evidence might not fit any of the dates put forward by
the parties and that he required to make the decision.
[25]
The opinion of the Lord Ordinary had woven together the evidential threads in
relation to the parties' dispute and demonstrated a carefully balanced forensic analysis. To
succeed in the reclaiming motion the husband would require to show that no reasonable
14
judge could have reached the same determination on the evidence - McGraddie v
[26]
The various evidential threads were supportive of the wife's position. The husband
had sought to depict in his affidavits and in his evidence in chief a clinical and transactional
relationship with his wife throughout the disputed period. He had then made many potent
concessions under cross-examination which provided ample support of a later relevant
date than either of those advanced by him. In essence, there was no relevant date alternative
to 6 January 2020 that was supported by the evidence taken as a whole. It was simply not
enough for the husband to disagree with the findings made at first instance as these all had a
basis in the evidence.
[27]
The Lord Ordinary's conduct had not been such as to render the process unfair. He
had a communicative, perhaps conversational, style, but very different judicial styles can be
accommodated within the system. Again the context was that the evidence before the
Lord Ordinary was clear and unambiguous once taken with the manifold concessions made
by the husband. He had accepted that he had behaved in a way that typified a husband's
behaviour towards his wife. Various significant themes were put to him in
cross-examination by counsel rather than by judicial intervention. It was recognised by
Baker LJ in K v L (Children: Fairness of Hearing) that judges take a more interventionist
approach in the modern legal system. The level of intervention in this case did not amount
to the judge's descent into the arena that was the risk identified in Yuill v Yuill. The issue
was whether the interventions were within the general allowance of case management in the
context of the Lord Ordinary's communicative style.
15
[28]
Some of the Lord Ordinary's questions and interventions were on side issues and
did not go to the core of the dispute as developed in submissions after proof. That the
Lord Ordinary had dealt with matters objectively and dispassionately could be seen from
his resistance to one of the wife's arguments, which was that the husband's choice of date
was a cynical one in an attempt to produce a date after he had received a large sum of
money for his shares. The impression conveyed by the husband in this case was that the
wife's side had been "pushing at an open door" during the evidence. That was not the case.
The situation here was in stark contrast to that in the case of re K where the judge had asked
over 500 questions spanning chief and cross-examination and had engaged in overly harsh
questioning of one of the parties in a challenging manner. The Lord Ordinary had not taken
over cross-examination at any time and the direction and focus of the task of eliciting
evidence remained with counsel on both sides. The interventions had sought clarification
and the avoidance of ambiguity. They were never harsh or provocative. There was no
prevention of any relevant line of examination. The interventions could not be said to have
caused any impairment to the objectivity of the Lord Ordinary. His detailed and forensic
opinion was illustrative of that.
[29]
The matter of credibility and reliability was pre-eminently a matter for the
Lord Ordinary - Thomas v Thomas 1947 SC (HL) 45, at 47 and 48; McGraddie v
evidence to reject the husband's evidence that the parties had not shared a bed since
30 December 2017 and accept the wife's evidence that they had continued to do so until
November 2019. In any event sharing a bed and/or having sexual relations is not
determinative or even essential to a finding of continuing cohabitation. There had been
evidence from some of the parties' children that their parents had shared a bedroom during
16
the July 2018 holiday to Florida. That evidence was a foundation for the Lord Ordinary
going on to find that "... on balance ..." the parties had sex during that holiday. He was
entitled to believe the wife on that over the husband. The wife's lack of truthfulness with
regard to earlier infidelity may be said to have detracted from her credibility to some degree
but could not disqualify the Lord Ordinary from accepting her evidence on other critical
matters. The findings of the Lord Ordinary in this respect were simply not open to review.
Decision
[30]
The limitations of the role of an appellate court in a case like this, where evidence has
been led, followed by findings in fact determined on that evidence, are well established. As
the weight to be given to the evidence is pre-eminently a matter for the Lord Ordinary, the
appellate court will not interfere unless his findings were not reasonably open to him
McGraddie v McGraddie 2014 SC (UKSC) 12 at paragraph 33. Where it is alleged that the
Lord Ordinary erred in law, that error would have to be a material one before this court
could interfere with his decision HF v FS 2015 SC 513, at paragraph [21], citing Lord Reed
Edinburgh and District Tramways Co Ltd 1919 SC (HL) 35, Thomas v Thomas 1947 SC (HL) 45
and McGraddie.
[31]
In this case, there are three main strands of challenge: (i) errors of law, (ii) unfair
conduct of the proof and (iii) assessment of credibility and reliability. We will deal with
each in the order in which they were presented.
17
Errors of law
[32]
Where the date on which the parties ceased to cohabit is disputed in an action of
divorce or dissolution of civil partnership, the court's task is to look at the issue objectively
and determine that date on the available evidence Banks v Banks 2005 Fam LR 116,
Lord Carloway at paragraph [33], cited in HF v FS at paragraph [16]. There is no exhaustive
list of relevant factors; the decision is quintessentially fact sensitive. The alleged errors in
this case are a concentration on a particular period rather than the whole duration of the
cohabitation within marriage and a failure to understand that the exercise was not one of
selecting between the dates for which each party contended, in consequence of which a
failure to assess the evidence objectively.
[33]
On the first of these, the core dispute as presented related to whether the end of the
parties' cohabitation was when the husband confronted the wife with messages indicative of
her infidelity (December 2017) or the end of the last time they spent a holiday period
together at the family home (Christmas and New Year 2018/2019). The complaint is that the
Lord Ordinary regarded the 2017 confrontation as the "starting gun" for the period under
scrutiny rather than examining it in the context of the whole period of the marriage. In his
opinion, the Lord Ordinary did focus primarily on the period 2016 to January 2020.
However, he referred also to earlier times, for example the family's move to Australia
in 2013 paragraph [2] and [60] and a period dating back to 2011 when John was born
[paragraph 11]. The circumstances in which the husband was asked by his employer to
return to the UK are also covered in paragraph [11]. There was agreement that the
husband's return to the UK with Simon in August 2016 represented a significant change in
the nature of the parties' cohabitation, but that they continued to cohabit as husband and
wife following that significant change in circumstances. Against that backdrop, we do not
18
consider that the Lord Ordinary fell into error by focusing his analysis on the period from
August 2016 onwards. He had (and can be assumed to have considered) the affidavits of the
parties insofar as they referred to earlier stages of the marriage, but that earlier time had
little bearing on the case as presented by counsel. The Lord Ordinary specifically noted (at
paragraph [60]) that there was no suggestion of a separation between 2013 and August 2016
or from August 2016 to December 2017 and stated:
"It is against the nature of the parties' cohabitation during this period, and
particularly the period from August 2016 to December 2017, that both counsel submit
any sufficient change in the nature of the parties' cohabitation should be assessed."
There can be no justified criticism of the Lord Ordinary for concentrating on the period of
the marriage in dispute, particularly as that period began more than a year before the date
advanced by the husband as the cessation of cohabitation. There is nothing in his opinion
illustrative of any error in this respect.
[34]
The second related error of law is said to be that the Lord Ordinary did not
understand that the task for the court is to select a date that emerges from the evidence as
that on which the parties ceased to cohabit. Instead he focused only on the two dates
advanced by the parties and to fail to consider any other possible dates, including but not
limited to the husband's then fall-back position of March 2018.
[35]
In his opinion at paragraphs [4] - [8], the Lord Ordinary referred to the relevant
authorities, which confirm that the issue must be looked at objectively. It is also clear from
the transcript of evidence that he raised with counsel his understanding of the test during
the proof and invited comments. His detailed analysis of the disputed period followed the
approach urged upon him. Counsel for the husband had recorded in her written
submissions a fall back position of March 2018 and the Lord Ordinary did not address that
in terms. However, it is clear enough from his analysis of the disputed period that he had
19
concluded on the evidence that no date earlier than 6 January 2020 could be identified as the
relevant date. The period covering the husband's esto position is specifically addressed at
paragraphs [63] and [64], followed by a conclusion that the actings of the parties in that
period contained no sense or support for the parties' separation. There is also an
examination of events in 2019 when the husband purchased a property without telling his
wife. The Lord Ordinary did not consider the events of 2019 to be decisive when considered
against all of the evidence in the case. In these circumstances we are not satisfied that the
Lord Ordinary erred in law by failing to state in terms that he had considered whether any
date other than those advanced could have been alighted on as the date of cessation of
cohabitation.
Conduct of the proof
[36]
On the applicable law in this area, the words of Lord Greene M.R. in Yuill v
Yuill [1945] 1 All ER 183 that a judge who "... descends into the arena ..." when hearing
evidence may deprive himself of calm and dispassionate observation remain apposite.
There have been more recent English cases in which, after consideration of the relevant
proceedings the Court of Appeal has found that the conduct of a judge was outwith the
parameters of reasonableness and fairness. These include K v L ( Children: Fairness of Hearing
relevant proceedings were those in which evidence had been elicited.
[37]
As we understand it, the practice in England and Wales, where unfair conduct by the
judge has so tainted the proceedings that the decision cannot stand, is to order a rehearing.
A written judgment, no matter how well reasoned, cannot retrospectively render fair an
20
unfair hearing; it is "... written in water ..." Serafin v Malkiewicz [2020] 1 WLR 2455, at
paragraph 49. As counsel for the husband in this case accepted, there is some authority in
this jurisdiction to suggest that Inner House has no such power - MacLeod's Legal
Representatives v Highland Health Board 2016 SC 647. In any event, it was not contended that
a rehearing in the court below would be appropriate and if unfairness was established this
court could consider the case of new.
[38]
Where, as in this case, unfair conduct by the decision maker is alleged, careful
scrutiny of what took place at first instance is required. We have been able to consider the
affidavits lodged as examination in chief, a full transcript of the oral evidence led and
productions referred to in the passages of evidence relied upon in the challenge. The context
in which the allegation of unfairness is made is that the Lord Ordinary was hearing a
lengthy preliminary proof on a single issue.
[39]
Both the number and nature of the Lord Ordinary's interruptions require to be
addressed. On the number, while the figure of 174 interventions that were not routine
seems high, an examination of the evidence reveals that only a small number are in the
category that should be scrutinised as potentially unfair. Many were follow up questions to
a single intervention. For example on day 3 of the proof, when the husband was being
cross-examined about his motivation for asserting an earlier relevant date because he had
received a large sum of money for share options realised after his relevant date, the
Lord Ordinary intervened to clarify a number of matters. He asked 19 separate questions in
a row about when the husband had received the shares, whether they were realised in more
than one tranche and whether and when he had understood prior to realisation that these
were valuable. They have the appearance of the Lord Ordinary trying to clarify in his own
mind the significance or otherwise of the share realisation. This example illustrates that of
21
the 174 interventions said not to be routine, at least 19 of them were in reality a single
intervention, at least in terms of subject matter. The transcript is peppered with other
examples of what will have been counted as single interventions that are in fact a dialogue
between judge and witness on an isolated point. We deal below with the issue of whether it
would have been better for the Lord Ordinary to leave such points for counsel to elicit. Our
conclusion on the number of interventions is that, given the length of the proof, it is not so
far beyond what is acceptable to render the process unfair, either on its own or when taken
with the enumerated objectionable questions.
[40]
Turning to the nature of the interventions under particular challenge, we have
narrated in full (at paragraph [18] above) the seven specific instances said to be illustrative of
unfair conduct and we acknowledge that it is said that this is merely a sample. To those we
would add another example from day 3 of the proof during the continued cross-examination
of the husband, when the Lord Ordinary intervened in questions about the purpose of
certain Facebook messages. He stated to the witness "I think you're far more intelligent and less
naïve than some of your answers to me suggest; I think you know very well that people have Facebook
to tell the world about their lives." We have considered the eight interventions specially
challenged and the one noted by us. They do not all fall into the same category. We will
deal with each in the order in which they were presented.
[41]
The first objection is to the Lord Ordinary intervening on the third day of the proof,
when he asked how far one would need to go beyond 2019 if one had accepted that a
relevant date of December 2017 "wouldn't stand ...". While this type of "thinking aloud"
during evidence is not helpful, it is not in our view indicative of unfairness, given that it was
presented as a hypothesis. By day 3 of the evidence, a judge may well be starting to think
about how to approach matters, depending on the evidence that has been led so far. The
22
transcript discloses that the Lord Ordinary described himself as "... quite interventionalist
(sic)", indicating that he was aware that he had a particular style of presiding.
[42]
The second stated objection relates to the Lord Ordinary intervening just after the
wife has conceded that her text messages with other men were inconsistent with a
commitment to marriage. While again this was inappropriate, the reference to his own wife
was hypothetical. It is reasonably clear that he was attempting to illustrate that the evidence
on that point required to be considered objectively. Although it could be interpreted as
protecting the wife by deflecting the force of cross-examination, we conclude that it is
probably no more than another example of the judge's self-declared interventionist
approach.
[43]
The third example is the intervention when the wife was being cross-examined on
the interpretation of cards and messages received on her birthday. The Lord Ordinary's
interruption to comment that he disagreed with the interpretation being put on the texts was
followed by a lengthy exchange with the husband's counsel, who attempted to explain her
position. Ultimately, she sought permission to discuss matters with her client. The
Lord Ordinary's conduct on this point was wholly inappropriate. He gave the appearance
of arguing with counsel, while she was in the middle of cross-examination, telling her "... if
you want to shift my thinking ..." that her approach should change. Legitimate
cross-examination was interrupted so that the Lord Ordinary could test counsel's approach.
That should have been done in submissions and not during evidence.
[44]
The fourth example relates to an intervention early in the first day of evidence. The
Lord Ordinary sought to clarify whether the position was that he would be getting two
subjective viewpoints and that he would then have to look at extraneous evidence to make
an objective determination on those. This challenge is in our view without merit. It falls
23
into the category of seeking to clarify the likely approach counsel were taking, albeit early in
the evidence.
[45]
The fifth objection is to the Lord Ordinary interrupting the cross-examination of the
husband to assert to him what the ellipsis "..." signified in a message, after the witness had
given an answer contrary to that assertion. We found this passage concerning. An initial
query to the husband about his answer would have been acceptable, but effectively
descending into cross-examination of a witness, as the exchange did, went considerably
beyond reasonable questioning by a decision-maker during the eliciting of evidence.
[46]
The sixth objection is to the Lord Ordinary interrupting cross-examination of the
husband about whether his hand was on his wife's shoulder in a photograph. As it
happened the husband had already conceded that the photograph might show his hand
there, so the intervention added nothing. Everyone in court was effectively looking at the
photograph together. The impression is that the Lord Ordinary was again "thinking aloud",
which may not be helpful but did not amount to an example of unfair conduct.
[47]
The seventh objection relates to the judge's intervention in the wife's
cross-examination when she was being challenged about whether she really did not
understand the effect of a document she had signed. Following the intervention there is
what appears to be a critique of counsel's style of cross-examination, telling her that from his
perspective some issues are more important than others. This was a wholly improper
interruption. It could have given the impression that the Lord Ordinary was stepping into
the evidence to protect the wife, although we do not suggest that he had that intention. His
remarks to counsel, if he considered they had to be made, should again have been saved for
her submissions after completion of the evidence.
24
[48]
The final intervention is one we have noticed and which is detailed at paragraph
[40] above. While the Lord Ordinary was entitled to consider privately whether or not the
husband was as naive as he presented, he should not have articulated that thought to the
witness. It could easily have given the witness the impression that the judge had already
formed a view of his credibility. This was a regrettable and unnecessary remark.
[49]
We have considered our conclusions on each of the interventions in the context of the
whole proceedings and having regard to the number of interventions overall. The different
acceptable styles of those presiding over such cases must also be taken into account. While,
as Baker LJ put it in K v L at paragraph 64, "No advocate enjoys addressing a judicial
Sphinx", we are clear that when evidence is being led judges should be far more circumspect
in their interventions than during submissions by counsel.
[50]
As indicated above, on four occasions within the examples addressed above, the
Lord Ordinary's interruptions of the evidence exceeded what is acceptable. Those
interruptions were unorthodox, inappropriate and even tendentious. While we have been
troubled by them, we conclude that in the context of 9 days of evidence and having regard
to the necessary accommodation for different judicial styles, the boundary between
legitimate questioning and unfair conduct was not quite crossed. In reaching this
conclusion, we have taken into account that the transcript does not disclose any rudeness or
hostility on the part of the judge. Notwithstanding the enumerated examples, counsel were
able to cross examine the parties on all relevant issues. The interruptions were not constant
and the transcript discloses some fairly lengthy periods of questioning without such
intervention.
[51]
On whether the interventions tended to be favourable to the wife's case, we do not
consider that a judge can be expected to keep a mental arithmetical note of how many
25
interruptions might be perceived as favourable to each side. There has been no specific
complaint of bias and we reject the submission that there was unfair conduct in this respect.
However, we reiterate that a judge must be careful to avoid any impression during the
evidence of having already decided which side he might ultimately favour, even if a
conclusion that he had would be ill founded.
[52]
Overall, we conclude that the judge's conduct during the evidence in this case was
not such as to vitiate the proceedings though unfairness. The conduct was not overly harsh
or bullying. Impatience with the slow pace at which evidence is elicited and an overly
conversational style is not sufficient to render those proceedings unfair even if on a few
isolated occasions within a protracted proof a judge exceeds the limit of what is reasonable.
Each side had ample opportunity to elicit the evidence they wanted. Furthermore we agree
with the submission that the judge's conclusions were carefully explained and more than
justifiable on that evidence.
[53]
That leaves the claim that the Lord Ordinary erred in his assessment of credibility
and reliability. It is well established that matters of credibility and reliability are
pre-eminently for the first instance judge - McGraddie v McGraddie 2014 SC (UKSC) 12,
Lord Reed at paragraph 28. We are entirely satisfied in this case that there was sufficient
evidence before the Lord Ordinary to support his conclusions on the substantive issues,
including that of credibility. There was no reason to assume that the wife's initial lack of
candour in relation to her sexual conduct would result in the husband's evidence being
preferred overall. It is trite that a witness's evidence may be accepted as credible and
reliable in some parts and not in others. While it is helpful to test a witness's evidence
against other sources of evidence led, that in no sense excludes the additional assistance a
26
judge can derive form observing a witness give evidence. A transcript of evidence cannot
replicate the arena in which it was given. We reject this third area of challenge.
[54]
In light of the conclusion we have reached, we do not require to consider what we
would have done procedurally had we concluded that the Lord Ordinary's conduct of the
proof was sufficiently unfair as to vitiate the proceedings. For the reasons we have given,
we refuse the reclaiming motion and adhere to the decision of the Lord Ordinary. The
matter will be remitted to proceed on the issues of financial provision before a different Lord
Ordinary. We hope that can be done more expeditiously than the litigation has progressed
previously.
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