What constitutes an “application” for a s 29 cohabitant claim? The author reports on a case that fell short

There has been a small, but steady stream of case law on cohabitants’ rights ever since they were introduced by the Family Law (Scotland) Act 2006. Until recently, however, the question of what actually constitutes “an application” in terms of the Act has not been actively considered by the courts. That question is made all the more important because of the set time limits for the making of such applications.

To recap, in terms of s 28(8) of the Act, a claim for financial provision where cohabitation ends otherwise than by death “shall be made not later than one year after the day on which the cohabitants ceased to cohabit”. An application to the court by the survivor for provision on intestacy, in terms of s 29(6) of the Act, “shall be made before the expiry of the period of six months beginning with the day on which the deceased died”. Accordingly, applications must be made timeously to prevent a preliminary plea of time bar being successful. What, however, constitutes ‘“an application”’ in terms of the Act?

The recent, as yet unreported case of Hendry v Bruce concerned an application made in terms of s 29 (upon the death). It provides an analysis of what constitutes an “‘application”’ in terms of the 2006 Act, and It makes for interesting reading for any litigator whose practice can involve the matter of time bar.

The background facts

The deceased died on 15 November 2012. The pursuer averred (although this was disputed by the defender, the deceased’s executor) that she was his surviving cohabitant. She lodged an initial writ in the appropriate sheriff court on 14 May 2013. This was the date the writ was warranted and sent to the defender (the deceased’s executor, who lived in England) by first class recorded delivery mail. It was a matter of agreement that the writ was not delivered to the defender until 16 May 2013. The defender pled time bar in that, the action having been served on 16 May, this was beyond the six month period.

Arguments on the making

For the pursuer, it was argued:

(a) That the court should have regard to the ordinary meaning of the word ‘”application”’, and that an application to the court is to be taken to be the date on which the initial writ is put into the sheriff clerk’s office for warranting. Accordingly, she had complied with s 29(6) of the Act.

(b) That it was open to the court to determine that s 3 of the Citation Amendment (Scotland) Act 1882 applied, and that the date of citation should be taken to be the date of posting. In this regard she also referred to rule 5.5(i)(a)(ii) of the Ordinary Cause Rules, which effectively provides that service on persons furth of Scotland may be constituted “by posting in Scotland a copy of the document in question in a registered letter”.

For the defender, it was argued:

(a) An application under s 29(6) was by definition a family action, which was therefore required to be raised under the Ordinary Cause Rules.

(b) The critical date was not the date of lodging of the application with the sheriff clerk for warranting, but instead the date of service.

(c) That whilst in certain types of actions, the lodging of the relevant summary application or petition is sufficient to demonstrate that an application has been made to the court, the question of whether the lodging of such a document with the court is sufficient to determine that an application has properly been made, will depend on (i) the wording of the relevant statute, (ii) the type of court procedure to be followed, and (iii) the location of the defender.

(d) In cases where there is postal service on a defender at a Scottish address, the date of service is the date of citation. This is the date of posting. However, in cases (such as this) where postal service is effected on a defender furth of Scotland, the date of service is the date when the letter would be delivered in the ordinary course of post, unless the contrary is proved (s 7, Interpretation Act 1978). The writ was posted on 14 May. In the ordinary course of post it would have been delivered on 15 May, but it was a matter of admission that the writ was delivered to the defender on 16 May, which was beyond the six month period.

In addition, the sheriff was addressed on the policy behind the terms of the Family Law Scotland Act 2006. The defender submitted that the terms of s 29(6) must require a writ to be served, rather than simply lodged with the court within six months. If all that were required for commencement of the action was the lodging of the initial writ with the sheriff clerk’s office, this could lead to a surviving cohabitant’s claim from an alleged former cohabitant’s estate being prejudiced as the estate might have been distributed prior to intimation of the claim on the executor. This, it was submitted for the defender, flew in the face of what was intended by the provisions in the 2006 Act, which created rights for cohabitants to attempt to address some of the problems which occur when a cohabitant dies leaving no will.

The outcome

The sheriff observed that “The answer to the question ’When is an application timeously made?’ may not be as straightforward as it appears… Whilst there may be an obvious initial attraction to the pursuer’s submissions that the statute be given its ordinary meaning, and that an application to the court is to be taken to be the date in which the initial writ is put to the sheriff clerk’s office for warranting, it is clear from an examination of the various authorities that this simplistic approach is not one traditionally taken by the courts in determining the making of an application”.

The sheriff accordingly accepted the defender’s arguments, upheld his preliminary plea of time bar and dismissed the action.

More haste, less speed

Although it is good practice to ensure an action is served well before any time bar date, there will be occasions when there is a race to commence proceedings in time. This case is a reminder that where time bar is concerned, the devil can be in the detail, and simply looking at the wording of a statute may not be enough. In the race to get your action raised, you may miss something of importance that could result in a successful time bar plea. When considering beating a time bar, you need to have regard not only to the particular rules of procedure in that case, but also the location of a defender.


The Author
Michaela Hinchin is an associate, an accredited specialist in family law and a family law mediator in the Personal and Family Law team of Brodies LLP. She is also a collaborative lawyer. Brodies LLP was instructed by the defender in the case discussed. e: michaela.hinchin@brodies.com
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