AT against NK (AP) (Sheriff Appeal Court Civil) [2025] SACCIV 9 (28 March 2025)

SHERIFF APPEAL COURT

[2025] SAC (Civ) 9

Sheriff Principal A Y Anwar KC

Sheriff Principal D C W Pyle

Sheriff Principal C Dowdalls KC

OPINION OF THE COURT

delivered by SHERIFF PRINCIPAL AISHA Y ANWAR KC

in the appeal in the cause

Pursuer and Respondent

against

NK (AP)

Defender and Appellant

Pursuer and Respondent: Coltman, solicitor; Johnson Legal Solicitors

Defender and Appellant: Leighton, advocate; Thompson Family Law

28 March 2025

Introduction

[1]

This appeal concerns an action of divorce in which both parties seek financial

provisions and orders in relation to residence and contact with the children of the marriage.

On the respondent's motion, the sheriff awarded her interim aliment. On the respondent's

motion, the sheriff also ordered the sale of the matrimonial home, title to which is in the joint

names of the parties. The sheriff made no order about the distribution of the anticipated net

free proceeds of sale.

[2]

The appellant appeals both of these decisions. Leave to appeal from the sheriff was

not sought. The respondent raised a preliminary point on the competency of an appeal

against the award of interim aliment on the basis that leave was required. A hearing on

competency was assigned. Parties were invited to also address the issue of whether leave

was required to appeal the order for sale of the property.

[3]

During the course of the hearing, this court allowed parties to address the merits of

the grounds of appeal in the interest of economy.

Background

[4]

The parties were married in Glasgow on 18 January 2020. There are two children of

the marriage. Both parties aver that the marriage has broken down irretrievably, although

the reasons for that are disputed.

[5]

On 31 January 2024 the respondent lodged a motion seeking an incidental order for

the sale of the matrimonial home; that motion was opposed. The following month the

motion was refused in hoc statu as being premature. The respondent made a motion for

interim aliment at the bar on 18 March 2024; the sheriff's interlocutor of that date records

that both parties were to prepare to address the court on the question of interim aliment on

3 April 2024.

[6]

At the hearing on 3 April 2024, the appellant failed to lodge evidence of his financial

position with the court. It had been sent to the respondent's solicitor only 6 minutes before

the hearing called. The hearing was continued to 17 April 2024 to allow the respondent to

consider the evidence produced. The sheriff also continued the respondent's renewed

motion for the incidental order for sale of the matrimonial home. The respondent asked for

vouching to substantiate the information sent to her by the appellant on 3 April 2024;

however, none was provided. As a consequence, the hearing on 17 April 2024 was

continued to 13 May 2024 with both parties ordered to lodge their vouching.

[7]

The respondent complied and lodged her vouching by 8 May 2024; however, the

appellant's agent appeared on 13 May and advised the sheriff he was unaware of the need to

lodge vouching, despite it having been stated explicitly in the interlocutor of 17 April. Both

motions were continued again to an opposed motion hearing on 29 May 2024.

The sheriff's note

[8]

Despite being ordered to do so on a number of occasions, the appellant did not lodge

any vouching of his financial position until the morning of 29 May 2024. He lodged one

wage slip (for May 2024) and three bank statements covering the period 17 February to

17 May 2024. There was no breakdown provided of his income and expenditure. No

explanation was offered as to why the vouching was late; nor was there any suggestion that

the appellant required further time to provide further vouching.

[9]

The sheriff reviewed the vouching provided by the respondent and considered that

she had a shortfall of around £1,200 per month. The sheriff was satisfied that the

respondent's needs and resources necessitated support through an award of interim

aliment. Thereafter, she considered the appellant's vouching. The sole payslip lodged

disclosed a gross salary of just over £4,000; after tax, the appellant earned just over £2,300

for May 2024.

[10]

The sheriff drew attention to two credit entries in the appellant's bank statements, for

which she could not identify the source of funding or income; no explanation was provided.

The respondent believed that they came from other bank accounts operated by the

appellant; however, he had provided no detail of additional accounts. The sheriff

considered that the failure to supply that information suggested a lack of candour on the

part of the appellant. He had had ample opportunity to provide the necessary vouching and

to produce a statement of income and expenditure, but had failed to do so.

[11]

Having considered the information, the sheriff awarded interim aliment in the sum

of £1,500 per calendar month, payable in advance.

[12]

The sheriff acknowledged that, in principle, the respondent was entitled to seek an

order for sale of heritable property in which she is a one-half pro indiviso proprietor at any

stage of the proceedings; the issue was whether the sheriff should exercise her discretion to

grant that order at the hearing. The appellant's opposition proceeded on the basis that he

hoped to obtain an order for residence of the children and to care for them in the

matrimonial home. Standing their age and the terms of the child welfare report, the sheriff

did not consider that to be a realistic prospect in the short to medium term. The motion was

granted.

Submissions for the appellant

Competency of appeal against interim aliment

[13]

It was submitted that Milne v Milne 1964 SLT (Sh Ct) 28 was wrongly decided. Milne

failed to recognise that an interim award of aliment can be extracted and enforced. While an

award of interim aliment can be temporary in its effect, it is not necessarily subject to review.

Cassidy v Cassidy 1986 SLT (Sh Ct) 17 was also wrong; aliment is money that is put into the

pocket of another party and if that money is not paid a decree can be extracted and it can be

enforced. The same error, it was submitted, is evident in Hulme v Hulme 1990 SLT (Sh Ct) 25

and Richardson v Richardson 1991 SLT (Sh Ct) 7.

[14]

The language used in section 110(1)(b) of the Courts Reform (Scotland) Act 2014 was

clear; there is no basis for a purposive interpretation. The court was invited to overturn

Milne, Cassidy, Hulme and Richardson.

Merits of appeal against interim aliment

[15]

The sheriff stated that the award of interim aliment would, "of course, supersede the

award from the CMS [Child Maintenance Service]"; that was incorrect. A maintenance

calculation supersedes an extract in relation to aliment: Ordinary Cause Rule 33.91. The

Child Maintenance Service has exclusive jurisdiction over child maintenance save in

exceptional circumstances: sections 8 - 9 of the Child Support Act 1991. Part 5 of the

respondent's schedule of income, which was lodged in process, contained resources relating

to child maintenance. The figures had been double counted and not discounted by the

sheriff.

[16]

The respondent's productions failed to disclose the payment of child maintenance in

the summary of income. The appellant's productions showed a deduction of £691.06 for

child maintenance. That was not represented in the respondent's schedule of income and

expenditure as at April 2024.

[17]

The true monthly income of the respondent is in excess of £3,600 per month in

circumstances where her outlays are, at best, estimated. The respondent's net income

is £2,309.58, some £1,300 per month more than the appellant's. His bank account discloses

council tax of £245, a mortgage payment of £1,063.11, car finance of £295.62 and car

insurance of £104.44.

[18]

The appellant lacked sufficient means to pay both the mortgage over the matrimonial

home and interim aliment. That being so, the award of interim aliment at £1,500 per

calendar month was unreasonable and the sheriff should have made no award.

Competency of appeal against order to sell matrimonial home

[19]

The challenge against the sheriff's order was an appeal against an order ad factum

praestandum. No leave was required from the sheriff for such an appeal:

section 110(1)(b)(iii) of the 2014 Act.

[20]

Counsel acknowledged that McMaster v McMaster [2021] SAC (Civ) 31 had

determined that an order for sale of the matrimonial home was an order ancillary to a crave

of decree for divorce. As such, Sheriff Principal Turnbull (as he then was) held that such an

order was not an order ad factum praestandum and that an appeal against such an order was

not competent without leave. What determines if something is an order ad factum

praestandum is the order that is pronounced not the source of the obligation. In the present

case the interlocutor of 29 May 2024 included the following wording: "... ordains the

defender along with the pursuer to execute and deliver to any purchaser a valid

disposition..."

[21]

Counsel invited this court to overturn McMaster; an order for sale is an order ad

factum praestandum it is an order to do something. McMaster was wrong in holding that

this was not such an order. Under reference to MacColl v MacColl 1992 SCLR 187, it was

contended that the policy underlying section 110 of the 2014 Act (and section 27 of the

Sheriff Courts (Scotland) Act 1907, its predecessor) was that interlocutory appeals without

leave are to be permitted only when they relate to some matter which could not easily be put

right: MacColl at p 188. If the matrimonial home were to be sold, that was not something

which could be reversed. Leave was not required and the appeal against the sale was

competent.

Merits of appeal against order to sell matrimonial home

[22]

For any order requiring sale of the matrimonial home, it had to be justified with

reference to the principles set down in section 9 of the 1985 Act. The sheriff had lacked

sufficient evidence to conclude that the sale of the matrimonial home was justified and had

failed to apply the statutory test.

Submissions for the respondent

Competency of appeal against interim aliment

[23]

Macphail, Sheriff Court Practice, (4th edn) at paragraph 18.34 states: "An appeal

against an award of interim aliment is not competent without permission." Case law

supported that position. Milne (supra); Cassidy (supra); Hulme (supra); Richardson (supra);

and Wilson v Wilson 2001 SLT (Sh Ct) 55 all set out a clear differentiation between classes of

interim decree. They state that interim aliment is in a separate class of interim decree to an

"interim decree for payment of money". All of the cases cited held that it was incompetent

to appeal an order for interim aliment without first obtaining leave to appeal.

[24]

While the appellant argued that the cases cited pre-date the Courts Reform

(Scotland) Act 2014, on behalf of the respondent it was submitted that section 110 of the

2014 Act is predominantly in the same terms as its predecessors, section 27 and 28 of the

Sheriff Courts (Scotland) Act 1907. The cases cited, therefore, remain authoritative.

[25]

Further, Ordinary Cause Rule 31.10(1) entitles a sheriff to make interim orders in

respect of aliment or residence of the children, notwithstanding that an appeal has been

marked: Macphail, Sheriff Court Practice, (4th edn) at paragraph 18.122; and Cunningham v

Cunningham 1965 SC 78 at p 80. To allow the sheriff to retain such power but for them to be

appealed without requiring leave to appeal from the sheriff was counterintuitive.

[26]

With respect to MacColl (supra) and Jones v Jones 1993 SCLR 151, it was accepted that,

prior to the passing of the 2014 Act, it was possible for a party to challenge an award of

interim aliment without leave from the sheriff, if the appeal also challenged another aspect

of the interlocutor awarding interim aliment. Subsequent to the passing of the 2014 Act,

however, it was submitted that that was no longer possible. The exceptions in

section 110(1)(b) apply with reference to the "decision" of the sheriff; not the "interlocutor"

as had been the case with section 27 of the 1907 Act: Finlayson v Munro 2020 SLT (Sh Ct) 287.

As a consequence, the appeal against the award of interim aliment was not competent

without leave.

Merits of appeal against interim aliment

[27]

The appellant had consistently sought to delay the progress of the action. He

delayed lodging his vouching to substantiate his income and, when he did, he lodged one

bank statement. That bank statement showed debits to other bank accounts belonging to the

appellant. He has averred that he has two bank accounts. The respondent advised the

sheriff at the hearing on 29 May 2024 that she did not think the full vouching ordered by the

court had, in fact, been lodged. She also submitted that the appellant had not paid child

maintenance, to the extent that the Child Maintenance Service had been forced to seize sums

from him.

[28]

The sheriff made a determination from the facts that had been put before her. Since

the commencement of the action, the entirety of the financial vouching put before the court

by the appellant encompassed the title sheet for the matrimonial home and the vouching

lodged. The sheriff used her discretionary power to assess the information before the court

and to make a determination. As part of that, she took into consideration the appellant's

prolonged pattern of conduct in the action.

[29]

The respondent did, however, accept that the sheriff had made a calculation error.

In the event the appeal against interim aliment were held to be competent, it was accepted

that the sheriff's interlocutor be amended to a reduced figure of £947.89 for interim aliment

to account for the sums to be paid by the appellant for child maintenance.

Competency of appeal against order to sell matrimonial home

[30]

The solicitor for the respondent agreed with counsel for the appellant this aspect of

the appeal was competent without leave. As a result, it was agreed that McMaster was

wrong and ought to be overturned. The matrimonial home is often the most valuable asset

in an action for divorce. Its sale will impact upon the final decision on any financial

provision to be awarded in an action for divorce. If the policy intent behind section 110 is to

allow appeals without leave against matters which could not be reversed, then

section 110(1)(b)(iii) was applicable.

Merits of appeal against order to sell matrimonial home

[31]

Although the sheriff had not explicitly set out the manner in which she had applied

section 9 of the 1985 Act in assessing whether the matrimonial home should be sold, it was

evident within her reasoning that it was at the forefront of her considerations. Specific

reference to section 9 was made by the sheriff at paras [30], [33] and [54] of her note. It was

submitted that, when viewing the sheriff's note as a whole, the sheriff had correctly applied

section 9.

Legislation

[32]

The legislative provisions relevant to this appeal are:

"Sheriff Courts (Scotland) Act 1907

27.

Appeal to sheriff

Subject to the provisions of this Act an appeal to the sheriff principal shall be

competent against all final judgments of the sheriff and also against interlocutors--

(a)

Granting or refusing interdict, interim or final;

(b)

Granting interim decree for payment of money other than a decree for

expenses, or making an order ad factum praestandum;

(c)

Sisting an action;

(d)

Allowing or refusing or limiting the mode of proof;

(e)

Refusing a reponing note; or

(f)

Against which the sheriff either ex proprio motu or on the motion of any

party grants leave to appeal . . .

28.

Appeal to Court of Session

(1)

Subject to the provisions of this Act, it shall be competent to appeal to the Court

of Session against a judgment either of a sheriff principal or sheriff if the

interlocutor appealed against is a final judgment or is an interlocutor--

(a)

Granting interim decree for payment of money other than a decree for

expenses; or

(b)

Sisting an action; or

(c)

Refusing a reponing note; or

(d)

Against which the sheriff principal or sheriff either ex proprio motu or on

the motion of any party, grants leave to appeal . . .

Courts Reform (Scotland) Act 2014

110. Appeal from a sheriff to the Sheriff Appeal Court

(1)

An appeal may be taken to the Sheriff Appeal Court, without the need for

permission, against--

(a)

a decision of a sheriff constituting final judgment in civil proceedings, or

(b)

any decision of a sheriff in civil proceedings--

(i)

granting, refusing or recalling an interdict, whether interim or final,

(ii)

granting interim decree for payment of money other than a decree

for expenses,

(iii) making an order ad factum praestandum,

(iv) sisting an action,

(v)

allowing, refusing or limiting the mode of proof, or

(vi) refusing a reponing note.

(2)

An appeal may be taken to the Sheriff Appeal Court against any other decision

of a sheriff in civil proceedings if the sheriff, on the sheriff's own initiative or on

the application of any party to the proceedings, grants permission for the

appeal.

Act of Sederunt (Rules of the Court of Session 1994) 1994/1443

Schedule 2

38.2 Reclaiming days

(1)

An interlocutor disposing, either by itself or taken along with a previous

interlocutor, of--

(a)

the whole subject matter of the cause; or

(b)

the whole merits of the cause whether or not the question of expenses is

reserved or not disposed of,

may be reclaimed against, without leave, within 21 days after the date on

which the interlocutor was pronounced.

(2)

Where an interlocutor which reserves or does not dispose of the question of

expenses is the subject of a reclaiming motion under paragraph (1)(b), any

party to the cause who seeks an order for expenses before the disposal of the

reclaiming motion shall apply by motion to the Lord Ordinary for such an

order within 14 days of the date of enrolment of that reclaiming motion.

(3)

An interlocutor disposing of the merits of the action and making an award of

provisional damages under section 12(2)(a) of the Administration of Justice

Act 1982 may be reclaimed against, without leave, within 21 days after the date

on which the interlocutor was pronounced.

(4)

An interlocutor mentioned in paragraph (5) may be reclaimed against, without

leave, within 14 days after the date on which the interlocutor was pronounced.

(5)

Those interlocutors are--

(a)

an interlocutor disposing of part of the merits of a cause;

(b)

an interlocutor allowing or refusing proof, proof before answer or jury

trial (but, in the case of refusal, without disposing of the whole merits of

the cause);

(c)

an interlocutor limiting the mode of proof;

(d)

an interlocutor adjusting issues for jury trial;

(e)

an interlocutor granting, refusing, recalling, or refusing to recall, interim

interdict or interim liberation;

(f)

an interlocutor in relation to an exclusion order under section 4 of the

Matrimonial Homes (Family Protection) (Scotland) Act 1981;

(g)

an interlocutor granting or recalling a sist of execution or procedure;

(h)

an interlocutor loosing, restricting or recalling an arrestment or recalling

in whole or in part an inhibition used on the dependence of an action or

refusing to loose, restrict or recall such an arrestment or inhibition;

(i)

an interlocutor granting authority to move an arrested vessel or cargo;

(j)

an interlocutor deciding (other than in a summary trial) that a reference

to the European Court should be made.

(6)

An interlocutor (other than a decree in absence or an interlocutor mentioned in

paragraph (2), (3) or (5) of this rule) may be reclaimed against, with leave,

within 14 days after the date on which the interlocutor was pronounced."

Decision

Competency of appeal against interim aliment

[33]

In Irving v Irving 1998 SCLR 373 (at p 375), Sheriff Principal Bowen QC made the

following pithy observation:

"As Sheriff Principal Maguire pointed out in Richardson, there can be few points in

the law which have received so much shrieval scrutiny as has interpretation of the

phrase "interim decree for payment of money". To my mind it borders on the absurd

that what ought to be a straightforward matter of practice should have occupied

substantial quantities of judicial time and, it would appear, taxed the legal ingenuity

of so many distinguished holders of the office of Sheriff Principal."

[34]

Unfortunately, 27 years later, the absurdity continues and the legal skill of three

sheriffs principal is to be taxed on the same point. Between 1964 and the present date, there

have been no less than 15 judgments issued by sheriffs principal on the interpretation of the

phrase "interim decree for payment of money". In 11 of those 15 cases, leave was required;

in 4 it was not. Of the 11 judgments which concluded that leave is required, 2 concluded

that leave is not required if another part of the interlocutor which awarded interim aliment

was also challenged on appeal. Regrettably, neither party provided this court with a full

citation of all the relevant authorities. For the purposes of this opinion, it is appropriate to

consider all of the reported judgments of the sheriffs principal.

[35]

The question was first considered in Milne (supra) by Sheriff Principal Walker QC,

who concluded that leave to appeal from a sheriff was required if a party wished to

challenge an interim award of aliment. The basis for the ratio decidendi in Milne was, in

effect, MacLaren, Court of Session Practice, (1916) at pp 1090 - 1091, specifically the following

passage:

"Interim decrees may be divided into two classes First, where the decree is for the

purpose of making an interim provision until the merits of the case are fully decided.

Under this head are decrees for interim aliment and expenses in a consistorial cause,

interim interdict, and interim appointment. Second, an interim decree may be

pronounced on the merits of the cause."

[36]

Sheriff Principal Walker QC considered that the "first" type of interim decree

mentioned by MacLaren could not be appealed without leave. That was because such

interim decrees did not dispose of the action; they were pronounced without prejudice to

the ultimate decision on the merits of the action and would cease to be effective as soon as a

final decision was made: Milne at p 29. In interpreting section 27(b) of the Sheriff Courts

(Scotland) Act 1907, the sheriff principal accepted that, although there were two possible

meanings of the phrase "interim decree for payment of money" the more obvious meaning

was an interim decree which disposed of part of the merits of the case: Milne at p 29. The

sheriff principal noted that in the Court of Session the only interim decree that could be

reclaimed without leave was one which disposed of part of the merits of the cause. He

therefore refused the appeal as incompetent.

[37]

The issue did not rear its head again for 19 years until 1983. Then, in Spencer v

Spencer 1983 SLT (Sh Ct) 87, Sheriff Principal Gimson QC elected not to follow Milne. He

considered that the terms of section 27(b) were plain and absolute and had to be read in their

ordinary sense. Moreover, he considered that a decree for interim aliment amounted to a

disposal of part of the merits of the action: Spencer at p 87. As such, he considered leave was

not required.

[38]

In Good v Good, unreported, Hamilton Sheriff Court, 24 June 1983, Sheriff

Principal Gillies QC dismissed an appeal against interim aliment as incompetent; however,

his interlocutor does not explain the reasoning for his judgment.

[39]

In Duff v Duff, unreported, Dunfermline Sheriff Court, 16 November 1983, Sheriff

Principal Taylor QC followed Spencer. Again, no reasoning was provided; however, he did

later provide this in Dickson v Dickson 1990 SLT (Sh Ct) 80 (discussed below).

[40]

Subsequently, in Lamberton v Lamberton 1984 SLT (Sh Ct) 22, Sheriff Principal Caplan

QC gave his judgment explaining in detail why he disagreed with the reasoning in Milne

and why he followed Spencer. He acknowledged that there can be a danger in being over-

ready to ascribe a "plain meaning" to expressions which are terms of art: Lamberton at p 23.

With respect to the passage in MacLaren, Court of Session Practice (supra), he considered that

Milne read too much into it; MacLaren was doing no more than setting out two situations

which may necessitate a payment of money before the conclusion of an action: Lamberton at

p 24. The sheriff principal, under reference to Baird v Glendinning (1874) 2 R 25, held that an

award of interim aliment was covered by section 27(b) and that, accordingly, an appeal

against such an award did not require leave. He acknowledged that his decision led to the

inevitable consequence that leave to appeal interim aliment was not required in the sheriff

court, yet was in the Court of Session; however, he considered that this was explained by

the different historical development of appeal procedures in the two courts: Lamberton at

p 24.

[41]

In Cassidy (supra) Sheriff Principal Dick QC followed Milne. He described the

approach in Spencer as "simplistic": Cassidy at p 18. As for Lamberton, he concluded that it

was wrong in considering that MacLaren was merely being descriptive. He also considered

that Baird did not apply to an interlocutor granting an ad interim decree pendente lite: Cassidy

at p 19. An award of interim aliment was not simply a case of putting money into the pocket

of one of the parties, who may spend it before determination of the action; it was money

awarded, at the discretion of the court, to support a party pending the decision of the case

on the merits: Cassidy at p 19. The sheriff principal relied upon the following passage in the

opinion of the Lord President (Clyde) in Adair v Adair 1924 SC 798 at p 801 to substantiate

that position:

"...It is a mistake, I think, to say that the obligation to provide interim aliment in a

consistorial case is an obligation created by the decree. On the contrary, the decree

would have neither validity nor justification, if it were not that a legal obligation

underlay it. What is true is that the decree for interim aliment is an act of regulative

administration (in circumstances where the parties' true rights are in suspense) of an

underlying and permanent legal obligation..."

[42]

In other words, it is the very nature of the obligation to provide aliment that

precludes an appeal without leave: Cassidy at p 19.

[43]

In Trolland v Trolland 1987 SLT (Sh Ct) 42, Sheriff Principal O'Brien QC followed

Milne and Good. Starting from basic principles, he considered that the broad purpose behind

section 27 of the 1907 Act was that decisions on procedural matters, with no direct bearing

on the outcome of the action, required leave, while those having more far-reaching effect

would not require permission: Trolland at p 43. He determined that leave was required to

challenge an award of interim aliment.

[44]

Sheriff Principal Ireland QC provided more historical background to the legislative

history of section 27 in Rixson v Rixson 1990 SLT (Sh Ct) 5. Prior to 1853 there was an

unlimited right of appeal from the sheriff-substitute to the sheriff. Between 1853 and 1907,

the ability to appeal became constrained. Section 19 of the Sheriff Courts (Scotland) Act 1853

provided that:

"Until an Interlocutor shall have been pronounced disposing in whole or in part of

the Merits of the Cause, it shall not be competent to appeal to the Sheriff against any

Interlocutor of the Sheriff Substitute, not being an Interlocutor disposing of a dilatory

Defence, or an Interlocutor sisting Process, or an Interlocutor allowing a Proof".

[45]

That provision was repealed by the Sheriff Courts Act 1876. Instead, the following

language was used in section 27 of the 1876 Act:

"The following, and not other, appeals to the sheriff against judgments or

interlocutors of the sheriff substitute shall be competent that is to say, an appeal

against a final judgment or an appeal against an interlocutor, -

(1)

Granting or refusing interdict, interim or final; or

(2)

Granting interim decree for money, or making an order ad factum

praestandum or sisting an action; or

(3)

Allowing, or refusing, or limiting the mode of proof; or,

(4)

Against which the sheriff substitute, either ex proprio motu or on the

motion of a party, grants leave to appeal."

[46]

On the basis of this historical analysis of the legislative provision, the sheriff

principal concluded that leave to appeal interim aliment was required; he therefore

followed Milne, Cassidy and Trolland, as did Sheriff Principal Hay 2 months later in Hulme

(supra).

[47]

Thereafter, in Dickson v Dickson 1990 SLT (Sh Ct) 80, Sheriff Principal Taylor QC

reaffirmed the position he had taken 7 years earlier in Duff v Duff; he continued to be of the

view that leave from the sheriff was not required to appeal an award of interim aliment,

notwithstanding that by that stage, five sheriffdoms in Scotland held the opposite view.

Dickson was not an appeal on the granting of interim aliment, but rather its refusal. The

sheriff principal, however, took the opportunity to explain why he did not agree with Milne,

Cassidy, Trolland and Rixson. He considered that the distinction they attempted to make

(ie the distinction set out in MacLaren, Court of Session Practice) was "illusory": Dickson at

p 81. Moreover, he considered that an award of interim aliment did amount to a disposal of

the merits of the action: Dickson at p 81. That same point had been previously made by

Sheriff Principal Gimson QC in Spencer.

[48]

Dickson was reported in March 1990; however, following Sheriff Principal Taylor's

retirement, his successor, Sheriff Principal Maguire QC, departed from his view in

October 1990. In Richardson (supra) Sheriff Principal Maguire QC held Milne was correct and

its reasoning had been sufficiently explained in Hulme. As a result, all six sheriffdoms in

Scotland were placed on the same footing for the first time: leave to appeal from a sheriff

was required against an award of interim aliment. That position has remained to the

present date.

[49]

Richardson was not, however, the end of the discussion. In MacColl an appeal was

made to the sheriff principal challenging: (i) an award of interim interdict against

molestation; and (ii) an award of interim aliment. By the time of the appeal hearing, the

appeal proceeded solely against the award of interim aliment. A challenge was tabled as to

the competency of the appeal. Sheriff Principal Ireland QC stated the following at

pp 187 188:

"... when section 27 of the 1907 Act allows an appeal against certain classes of

interlocutor, what is subject to appeal in each case is the interlocutor itself, i.e., the

judgment beginning with the place and date of issue and ending with the signature

of the judge; and in order to determine whether the interlocutor can be appealed, it

is necessary to examine its content to see whether it is properly described by the

language of one of the paragraphs (a) to (f) of section 27."

[50]

As one aspect of the interlocutor challenged in MacColl was the award of interim

interdict, the appeal against the whole interlocutor without leave was competent by virtue of

section 27(a). Put differently, if a party raised an appeal against an interlocutor which

contained more than just an award of interim aliment, and that other aspect of the

interlocutor was one which did not require leave to appeal under the terms of section 27,

then a party could, in effect, pursue an appeal against an award of interim aliment which

would otherwise have been incompetent without leave: MacColl at p 188. In Jones (supra),

Sheriff Principal Maguire QC considered MacColl was correct and followed it: Jones at p 151.

[51]

There have been two further reported decisions on the competency of leave to appeal

an award of interim aliment. In Irving (supra) Sheriff Principal Bowen QC had doubts as to

whether the analysis in Milne and its reliance on MacLaren's distinction was correct: Irving

at p 375. Instead, he considered the better argument for stating leave was required was to be

found in Cassidy at p 19, namely that one must look to the underlying obligation and that an

order for aliment should be viewed as an order to implement an obligation to support,

rather than simply as an order to pay money: Irving at p 375.

[52]

Finally, in Wilson (supra), Sheriff Principal Lockhart QC considered the terms of

section 27 of the 1907 Act. The appellant appealed without leave against the sheriff's

interlocutor allowing: (i) an interim order for payment of aliment; and (ii) an interim order

under section 2(4)(b) of the Matrimonial Homes (Family Protection)(Scotland) Act 1981.

It was submitted by the appellant that although the first part of the interlocutor would

normally have required leave to appeal, the second part was appealable without leave and,

in turn, the whole interlocutor could be challenged. The sheriff principal noted that the

proposition was not challenged: Wilson at p 56. That was presumably due to the decisions

in MacColl and Jones; however, the sheriff principal held that the second part of the

interlocutor did, in fact, require leave to appeal. The appeal was therefore incompetent. On

the issue of whether leave was required to appeal an award of interim aliment, the sheriff

principal stated in obiter dicta that he had no issue with the analysis as had first been stated

in Milne on the need for leave: Wilson at p 57.

[53]

In our opinion, the view of the majority of the sheriffs principal is the correct one.

We find Sheriff Principal Walker QC's reasoning in Milne, provided over 60 years ago,

compelling. The fundamental point, as this court pointed out in Finlayson (see below), can

be stated thus: the statutory intention behind the overall scheme in the sheriff court for

appeals to a higher court is that litigation is conducted within the appropriate level of the

judicial hierarchy and is dealt with expeditiously at whatever level Parliament has decided

is appropriate. It can be assumed that the drafter of the 2014 Act was aware of the previous

authorities on leave to appeal for awards of interim aliment. The drafter can be assumed to

have been aware that by the decision in Richardson in 1990 the law was settled in all six

sheriffdoms indeed to the point that by the 3rd edition of Macphail, Sheriff Court Practice,

in 2006 (para [18.39]), the law was as stated without comment. If Parliament considered that

awards of interim aliment should be appealable without leave, there was an opportunity in

the 2014 Act to so legislate. Moreover, the modern approach to all litigation, but particularly

in family actions, is to identify as quickly and efficiently as possible the true points of

contention between the parties and to avoid lengthy and protracted litigation which is not in

the overall interest of the parties. To allow appeals without leave from what is ultimately a

stopgap to deal with an immediate need of one of the parties (or as the Lord President

expressed it in Adair "an act of regulative administration") would be to cause unnecessary

and very substantial delay to the resolution of the parties' financial arrangements following

separation, undermining the modern approach to the expeditious resolution of family

proceedings.

[54]

The fundamental tension between the two sides of the debate among the sheriffs

principal is that the minority, while sympathetic to the arguments of the majority,

considered that the words actually used "interim decree for payment of money" could

not be ignored. There is considerable force in that view. A layman may understandably

reach the same conclusion; aliment is money and it has to be paid. The majority has tried to

square the circle by, as in Milne, seeking to distinguish between types of decree under

reference to MacLaren or, as in Irving, relying for support on the identification of an

underlying obligation. It is trite to say that statutory construction begins with the words

used; poor expression is for Parliament to resolve, not the courts. However, the words used

require to be considered in light of their context. The approach to statutory interpretation

was recently summarised by the Inner House (Glasgow City Council v MM 2025 SLT 178 at

para [31]):

"In any exercise of statutory interpretation the general rule is that the language

should bear its ordinary meaning in the general context of the statute (Crozier v

Scottish Power 2024 SC 373, per Lord President (Carloway) at paragraph 27). As

Lord Burrows emphasised in the 2022 article (Statutory Interpretation in the Courts

Today, the Christopher Staughton Memorial Lecture, 24 March 2022), referred to by

the appellant, the modern approach is to regard the object of the exercise as

`contextual and purposive'. The courts are seeking to ascertain the meaning of the

words used in a statute in the light of their context and the purpose of the statutory

provision (JR 222 [2024] 1 WLR 4877, per Lord Stephens at paragraph 73). The

context will include the group of statutory provisions within which the words to be

interpreted are included and the statute as a whole."

Applying these rules, if one requires to rely solely upon the strict meaning of the term

"interim decree for payment of money" the circle cannot be squared; the payment of

interim aliment plainly involves the payment of money. That, however, is too simplistic an

approach. Section 110(1)(b)(ii) requires to be examined by considering the context and

purpose of rights of appeal; generally, an appeal to the Sheriff Appeal Court may be taken

without leave against a decision of a sheriff constituting final judgment. Section 110(1)(b)(ii)

provides an exception to that general rule. It is intended to apply to interim decrees which

are not subject to variation by the sheriff and which dispose of part of the merits of the case.

Interim orders for payment of aliment do not fit into that category.

[55]

We understand that an interim order for payment of aliment would similarly not be

appealable without leave to the Inner House in proceedings in the Court of Session, as such

an order does not dispose of part of the merits of the cause (Act of Sederunt (Rules of the

Court of Session 1994) 1994/1443, Schedule 2, Rule 38.2(5)(a)). We are unable to identify any

logical reason as to why Parliament would have intended a litigant in the sheriff court to

enjoy a broader right of appeal than that available to a litigant in the Court of Session on

matters of interim aliment.

[56]

Whether an appeal without leave is competent when the decision challenged is part

of an interlocutor which also deals with a matter for which leave is not required, was

considered by this court in Finlayson. The appellant argued that as the sheriff's interlocutor

which had been challenged included within it a refusal of craves for final interdict, no

matter that that part of the interlocutor was not challenged in the grounds of appeal, the

effect was that the entire interlocutor was appealable without leave standing the terms of

section 110(1)(b)(i). This court rejected that argument in Finlayson for the following reasons

at paragraphs [6] [8]:

"The exception which applies to refusal of interdict is of the sheriff's decision, not the

interlocutor. The latter is merely the vehicle for expressing that decision. In the

same way, if an appeal court decides to reject an appeal it `refuses the appeal' and

only then adheres to the interlocutor complained of. Or if it decides to allow the

appeal, again it `sustains the appeal' and only then recalls the interlocutor.

In our opinion, there are sound policy reasons behind s.110. It is important that

litigation is conducted within the appropriate level of the judicial hierarchy and is

dealt with expeditiously at whatever level Parliament has decided is appropriate.

That principle would be undermined if at any point in the process an aggrieved

party were entitled to appeal to a higher court an interlocutory decision of the court

below. The reason for the exceptions reinforces that principle, in that they are all

decisions which are of material importance or would affect the status quo of the

parties (Macphail, Sheriff Court Practice (3rd edn), para 18.31).

We are also reinforced in our view when we consider the very different terms of the

previous rule as contained in s.27 of the Sheriff Courts (Scotland) Act 1907, which

provided for exceptions in similar terms to s.110, but against the interlocutors, rather

than the decisions. Sheriff Principal Ireland in MacColl v MacColl 1992 SCLR 187, in

holding as competent an appeal against an interlocutor which contained orders both

for interim interdict and interim aliment but in respect of which the appeal was

against only the decision on interim aliment, said this (at 1992 SCLR at p.188): `I

have a strong suspicion that the result is not what the draftsman meant to say, since

the general drift of section 27 is that interlocutory appeals without leave are to be

permitted only when they relate to some matter which cannot easily be put right if

the appeal is postponed until after final judgment.' It would appear that Parliament

took these comments to heart when considering the rule to be introduced in the 2014

Act."

[57]

We therefore conclude that the appeal against the sheriff's award of interim aliment

is incompetent.

Merits of appeal against interim aliment

[58]

Having found the appeal to be incompetent, it is not necessary to comment upon the

merits. However, as we are mindful that parties indicated that they were likely to seek a

variation of the order for interim aliment, in the event that the appeal was incompetent, it

may be helpful for us to address the merits.

[59]

We note that in her forecast for July 2024 the respondent expected to receive £552.11

in child maintenance payments as part of her income. The appellant records a deduction

of £691 from his income. Neither figure is correct; production 5/28 is a letter from the

Department for Work and Pensions which shows that the monthly payment for child

maintenance due from the respondent is £616.71. That being so, the respondent's forecast

for July is placed too low and the appellant's is too high. Further, the appellant argues that

the child maintenance payment covers the costs relating to the children in the respondent's

schedule. The fundamental reason for the increase in costs for the children from July

onwards was the respondent's return to work. That would entail the children being placed

in nursery, leading to a doubling of outgoings relating to the children.

[60]

In determining the amount of interim aliment the sheriff had regard to the parties'

respective needs and resources, insofar as vouched by them, and all the circumstances of the

case. That approach was entirely appropriate.

[61]

The sheriff considered the respondent's shortfall of £1,198.85 was vouched for. By

contrast, the lack of proper vouching from the appellant suggested a lack of candour on his

part. There were unexplained credits into his account. If a party is not forthcoming about

their income or produces inadequate vouching notwithstanding repeated opportunities to

do so, then he or she runs the risk that assumptions might be made against their interests:

Sheriff Principal Young QC, Johnson v Johnson, unreported, 5 November 2003, Stonehaven

Sheriff Court. The respondent had ample, repeated opportunities; indeed, we consider he

was afforded too many opportunities, to timeously present vouching and such further

information as he wished. By not doing so, he exposed himself to the risk of those adverse

assumptions.

[62]

We are not persuaded that the sheriff erred in concluding that an award of £1,500 per

calendar month as craved, was needed by the respondent and could be afforded by the

appellant. She did, however, err in respect that she assumed that the award of aliment

would supersede the award of child maintenance, such that the amount payable by way of

interim aliment would be reduced to "around £900". On that basis, had the appeal against

interim aliment been competent we would have allowed the appeal to the extent of varying

the amount of interim aliment to £947.89 to reflect what the sheriff actually intended. It

remains open to the appellant to lodge a motion before the sheriff to seek a variation of the

amount awarded. We understand that the respondent had already indicated to the

appellant that she would consent to such a motion. That is the course of action which ought

to have been adopted, rather than the pursuit of an incompetent appeal which has led to

unnecessary delays in achieving the outcome the appellant desired.

Competency of appeal against order to sell matrimonial home

[63]

The appellant contends that leave was not required from the sheriff to appeal the

order to sell the matrimonial home, as the order being an order ad factum praestandum, could

be appealed without leave in terms of section 110(1)(b)(iii) of the 2014 Act. The second

question of competency arising in this appeal is whether an incidental order for the sale of

property, issued under section 14(2)(a) of the Family Law (Scotland) Act 1985, is an order, or

decree, ad factum praestandum? In answering that question, the preliminary and broader

question is what is an order ad factum praestandum?

[64]

The most common example of a decree ad factum praestandum is a decree for specific

implement; a remedy sought by an aggrieved party, compelling the performance of a

pre-existing obligation by the defender. Specific implement as a remedy in the law of

obligations has a long history in Scots law: see A.D. Smith, "Specific Implement", in K. Reid

and R. Zimmermann (eds), A History of Private Law in Scotland (2000), Vol 2, pp 195 219. Its

origins can be traced back to the late 13th and early 14th centuries with the use of a brieve,

known as a compulsion.

[65]

Decrees ad factum praestandum have been defined in various ways. What each

definition has in common is the need for a pre-existing contractual, common law or

statutory obligation or duty which is sought to be enforced by way of such a decree. In

Mackenzie v Balerno Paper Mill Co. (1883) 10 R 1147 at p 1156, Lord Shand stated:

"...decrees or obligations ad factum praestandum, what is thereby meant is decrees or

obligations other than for the payment of money, being for the performance of some

act such as the signing of a conveyance or other deed, an act of a class which,

generally speaking, it is in the power of the party to perform, and which it is

therefore reasonable that he should be compelled to perform, in fulfilment of his

obligation, even by diligence against his person."

[66]

Trayner, Latin Maxims and Phrases, (4th edn) (1894) at p 27, defines ad factum

praestandum as follows:

"Ad factum praestandum. For the performance of a certain act. In popular

language almost all obligations may be said to be of this class, but there are

obligations of a peculiar character which alone are denoted by the legal signification

of this phrase. The obligation of a debtor is clearly one for the performance of a

certain act, namely, the payment of his debt; but a decree at the instance of his

creditor would not be termed a decree ad factum praestandum. An obligation ad factum

praestandum is one for the performance of an act within the power of the obligant,

and thus a decree of the Court, ordering delivery of certain writs, would be so

termed..."

[67]

MacLaren, Court of Session Practice (1916) at pp 56 57, describes the order as being

one which:

"...must order the performance of some specified act, as, to deliver a specific thing,

to consign money, to execute a deed, or for an apprentice to return to his service,

when the Court will decern for specific performance, which may be enforced by

imprisonment."

[68]

For the execution of a deed, MacLaren cites Taylor v Macdonald (1854) 16 D 378. The

issue in that case, on appeal to the Inner House, was whether the decree was in a form

warranting execution, but the background to the appeal case was a defender being ordered

by the sheriff-substitute to execute a disposition in favour of his incarcerating creditor on

pain of imprisonment.

[69]

Burn-Murdoch, Interdict in the Law of Scotland (1933), at paragraph 178 states:

"A decree ad factum praestandum `must be a decree ordering performance of some

specified act, and so a decree which can be obeyed by some specific act done on the

part of the defender.'"

[70]

In chapter 6 of his book, examples of decrees that can be classified as decrees ad

factum praestandum, include: (i) removal from premises; (ii) delivery of a document;

(iii) execution of a deed; (iv) demolition of buildings or works; and (v) building or

construction of works.

[71]

Under the heading of chapter 6 for "Execution of Deeds", he states at paragraph 181:

"A person may be ordained to execute a certain deed and, on refusal, may be

imprisoned for recalcitrance. In recent practice the Court, on disregard of its order,

has further authorized the clerk of Court to execute the deed in place of the

defender..."

[72]

As authority for that proposition he cites Taylor v Macdonald as well as two other

authorities: Wallace's Curator v Wallace 1924 SC 212 and Neilson's Judicial Factor 1927 SC 595.

In the former, the Inner House ordered the clerk of court to sign discharges of bonds in the

context of an action of multiplepoinding where a joint minute had been entered into by the

parties and to which the court had interponed authority whereby the defender

undertook to sign the discharges in order that a third-party purchaser of heritable property

could obtain a clear title. The latter case concerned the refusal of an alleged bankrupt to

deliver up materials in respect of his business to an interim judicial factor in terms of

section 14 of the Bankruptcy (Scotland) Act 1913, being a provision for the interim

preservation of the estate. The former case involved an order to enforce a pre-existing

obligation and the latter, an order to perform a statutory requirement.

[73]

Professor Walker defined a decree ad factum praestandum as follows (Walker, Civil

Remedies, (1974), p 269):

"A DECREE ad factum praestandum is a judicial order to do or perform some act, other

than to pay money, which the defender should have done in implement of a legal

duty incumbent on him, whether by statute, common law or by contractual undertaking, or

an order to undo some act which the defender should not have done but in breach of

a legal duty incumbent on him." [second italics added]

[74]

As already discussed, although specific implement is an example of a decree ad

factum praestandum, the remedy proceeds in the context of a pre-existing obligation between

the parties which one of them wishes to enforce. In our judgment, an incidental order

granted under section 14 of the 1985 Act cannot, by contrast, be said to share that same

characteristic. There is no underlying pre-existing legal, statutory or contractual obligation

incumbent upon the appellant to deliver an executed disposition or otherwise co-operate

with the sale of the property. The obligation, such that it is, comes into existence at the

moment an incidental order is made. Such an obligation does not fit into the definitions set

out by Lord Shand, Trayner and Professor Walker which require an existing obligation ad

factum praestandum for the performance of an act within the power of the obligant, before

decree ad factum praestandum can be made.

[75]

We note that in Milmor Properties Ltd v W and T Investment Co Ltd 2000 SLT (Sh Ct) 2,

Sheriff Principal Risk QC stated at p 4, that:

"...an action of divorce may contain a crave to have the defender ordained to transfer

property to the pursuer. That is unquestionably an order ad factum praestandum,

but I have never heard it suggested that it required to be sought in a summary cause

separate from the divorce action. Again, the action is categorised as one of divorce

and the crave for transfer of property is ancillary. An action of division and sale of

heritable property commonly includes a crave to have the defender ordained to grant

a disposition of his interest in the property following sale. That too is an order ad

factum praestandum, which is invariably sought in an ordinary cause because the

cause in question is properly described as an action of division and sale."

[76]

Thus, notwithstanding the absence of an obligation prior to the court action being

raised to dispone the property, the sheriff principal considered such an order could be

termed an order ad factum praestandum. His comments were, however, obiter dicta.

[77]

In McMaster (supra), the pursuer sought to appeal without leave the decision of the

sheriff in an action of divorce whereby he granted an incidental order for the sale of a house.

Sitting alone as the procedural appeal sheriff, Sheriff Principal Turnbull (as he then was)

held that the appeal was incompetent without leave. He stated as follows (para [9]):

"An order ad factum praestandum is sought to enforce the performance of an act other

than the payment of money (see White & Carter (Councils) Ltd v McGregor 1962 SC

(HL) 1, per Lord Morton of Henryton at 16). That is not what is sought (by both

parties) in the present action. Both parties seek an incidental order in terms of

section 14(2)(a) of the Family Law (Scotland) Act 1985, that is an order ancillary to a

decree of divorce or of dissolution of a civil partnership. It is not an order ad factum

praestandum as contemplated by section 110(1)(b)(iii)."

[78]

Thus, while Sheriff Principal Risk QC and Sheriff Principal Turnbull agree that a

crave, such as the one sought in this action, is ancillary to divorce, where they diverge is

over whether the crave seeks decree ad factum praestandum.

[79]

In Anthony v Anthony 1998 Fam LR 78, during an action for divorce, a defender

sought to recover documents stored in the matrimonial home. The sheriff had granted an

order ordaining his wife's solicitor to arrange for the said documents to be transferred to the

defender. The defender appealed. The pursuer contended that the sheriff's order was not

an order ad factum praestandum and that, accordingly, leave from the sheriff ought to have

been sought. The defender contended that, as the pursuer's solicitor had been ordained to

provide a document, that amounted to a requirement to do something and he was appealing

an order ad factum praestandum. He submitted he did not require leave to appeal.

[80]

Sheriff Principal Nicolson QC held that the appeal was incompetent without leave.

He did so on two grounds; however, it is his first basis for refusal which is relevant to this

appeal. He held at paragraph 78-19:

"In my opinion the interlocutor does not fall under that subparagraph. I have

several reasons for expressing that opinion. In the first place, I agree with counsel for

the pursuer that a decree ad factum praestandum can arise only where there is a

legal obligation ad factum praestandum..."

[81]

In Anthony, the pursuer's solicitors held no such prior obligation; the sheriff

principal considered that the sheriff's interlocutor did no more than to make certain

administrative arrangements.

[82]

Not every order to perform an act is necessarily an order ad factum praestandum. As

Trayner explained:

"In popular language almost all obligations may be said to be of this class, but there

are obligations of a peculiar character which alone are denoted by the legal

signification of this phrase".

The peculiar character of the underlying obligation requires to be examined, as

acknowledged by Lord Shand, Burn-Murdoch, Professor Walker and by Sheriff

Principal Nicolson QC. In our judgment, properly understood, an incidental order granted

under section 14(2)(a) of the Family Law (Scotland) Act 1985 for the sale of a property is not

a decree ad factum praestandum. Such an incidental order is not based on any pre-existing

contractual or statutory obligation; rather, an incidental order for the sale of a property is a

neutral act and may be described, using the words of Lord Clyde in Adair, as an act of

regulative administration, in circumstances where the parties' true rights are in suspense.

[83]

Sections 14(1) and 14(2)(a) of the 1985 Act empower the court to make an incidental

order for the sale of property prior to the grant or refusal of decree of divorce. It is under

these provisions that the sheriff made the order. But it was no more than that; it did not

include a division between the parties of the net free proceeds; the parties' true rights in

respect of the division of matrimonial property remain to be determined by the court having

regard to the principles in section 9 of the Act and the resources of the parties (section 8(2)).

[84]

As a consequence, incidental orders for the sale of property, such as the one

challenged in this appeal, are not orders ad factum praestandum. It follows that

section 110(1)(b)(iii) is not engaged; the appellant required leave from the sheriff to appeal

that aspect of the sheriff's interlocutor. His appeal is incompetent.

[85]

We were not referred to, and have not been able to identify, any reported decisions

on whether an incidental order for the sale of property in terms of section 14 of the 1985 Act

can competently be reclaimed against without leave in relation to proceedings in the Court

of Session. We note that such an order does not fit neatly into the terms of Rule 38.2(1) of

the Court of Session Rules. If that is the case, again, we are unable to identify any logical

reason as to why Parliament would have intended a litigant in the sheriff court to enjoy

broader rights of appeal than those available to a litigant in the Court of Session in relation

to orders under section 14 of the 1985 Act.

[86]

Finally, we are mindful that an order for the sale of property can have far-reaching

consequences for the parties to an action of divorce. It is important thus to emphasise that

the object of requiring permission to appeal those decisions which fall within section 110(2)

of the 2014 Act is to avoid inconvenience, expense and delay in the progress of litigation by

the taking of appeals which are frivolous, devoid of merit or which are not concerned with

matters of material importance. The sheriff is required to exercise his or her discretion when

granting or refusing permission to appeal based upon his or her assessment of the

circumstances of the particular case (see generally Macphail, Sheriff Court Practice, 4th edn,

paragraph 18.44); in family cases, particularly where the same sheriff has presided over the

proceedings, he or she is very well placed to make that assessment.

Merits of appeal against order to sell matrimonial home

[87]

As we have concluded that the appeal is incompetent, we do not consider it

necessary to address the merits.

Disposal

[88]

We shall refuse the appeal as incompetent. We were advised that the appellant was

an assisted person. We were also advised that in the event of success, the respondent might

seek an award of expenses on a different scale other than the normal party/party one.

Accordingly, we will reserve expenses meantime. Parties should indicate to the clerk within

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