It is not open to a legally assisted party to seek modification of liability in expenses for matters outside the scope of the legal aid certificate; and it was both competent in the sheriff court and appropriate to make an order requiring payment of certain expenses incurred by the other party as a condition of further procedure, a sheriff has held.

Sheriff Ian Cruickshank gave the decision at Inverness Sheriff Court in ordaining DM, the pursuer in a divorce action, to pay the sum of 1,117.22 to the defender, CM, as a condition precedent on proceeding to proof on his claim for a residence order in respect of the parties' children. The sum represented a sheriff officers' invoice relating to execution of a warrant for return of the children to CM. CM also held a decree for taxed expenses of 5,784.69 relating to amendment procedure which introduced the crave for residence, and a motion for sale of the matrimonial home, which had been refused.

The action was raised in February 2019, when DM sought divorce on the ground of CM's unreasonable behaviour, a contact order, and sale of the matrimonial home with division of the proceeds. He obtained legal aid with effect from 13 November 2019, specified as relating to contact. In July 2019 he had lodged a minute of amendment seeking a residence order and interdict against CM removing the children from his care and control. Following a child welfare hearing CM was granted a residence order and DM ordained to deliver them. The sheriff officers executed the order in August.

Also in August DM lodged a minute of amendment seeking to substitute a crave seeking divorce on the basis of two years' non-cohabitation, in addition to residence. An extension to his legal aid certificate dated September 2020 was stated to cover capital sum and the new divorce ground, but to have been refused as respects interdict against removal of the children, residence, and further orders under the Family Law (Scotland) Act. Further orders finding him liable in expenses were made in September and October 2020.

The remaining issues for proof were division of the proceeds of the matrimonial home, which had now been sold, and CM's crave for interdict of DM from removing or attempting to remove the children from her care and control, residence and contact having been regulated by the court in July 2021. 

Seeking modification of liability to nil, it was argued for DM that the orders for expenses had been made at a time when he was a legally assisted person in terms of s 16 of the Legal Aid (Scotland) Act 1986, which definition was unqualified. His position had changed regarding residence and his conduct had not been improper. He had extremely limited means. If payment was to be a condition of proceeding to proof, he would not have access to disputed capital.

Sheriff Cruickshank observed first that DM had not complied with the requirement to design himself as an assisted person, and the grants of legal aid were not lodged in process until July 2021. “From my own recent experience I have seen a noticeable decline in observance of the requirements which are not only expected but should be obligatory in every case”, he commented. However he was bound by Dobbie v Patton (2019), which held that where the other party was aware that their opponent was legally aided, the omission was not fatal to an application for modification.

Although there was no explanation of why DM's motion came so late in the day, and there was authority that it might be regarded as incompetent where it followed decerniture for payment, it would be refused as respects the sheriff officers' work because the expenses were incurred before DM became an assisted person, although the actual award of expenses was after that date; and as respects the further orders because it was the legal aid certificate that determined the matters for which DM was a legally assisted person, and the award sought to be modified related almost exclusively to the issue of residence for which legal aid had been refused. To modify for matters for which DM did not have legal aid would be entirely unfair to CM.

DM's motion was conceded to be unusual, but did appear to be competent. In modern practice such an order would be made only where there had been a failure by a litigant or their solicitor such that it would be just and equitable that all or part of the expenses incurred should be paid before the action proceeded further. “The financial capability of complying with the order is an important consideration.”

To make DM pay all expenses awarded to date “might well lead to an unreasonable halt on the action” given the unresolved issue regarding the sale proceeds. Should CM wish to do so, she should take the normal route to enforce her decree for expenses. However it was DM's conduct that had resulted in the sheriff officers being instructed, and it would not be unreasonable or impossible for him to make payment or reach agreement on payment of those expenses before proof was assigned.

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