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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Bentley v Harvie [1999] ScotCS 83 (19 March 1999) URL: http://www.bailii.org/scot/cases/ScotCS/1999/83.html Cite as: [1999] ScotCS 83

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The parties to this action were married in Scotland on 31 July 1970. On 30 July 1982 they separated, and on 26 August 1982 they entered into a separation agreement. There are two children of the marriage, Nicola Louise, who was born on 12 December 1974 and Christopher John who was born on 4 August 1976. The parties were divorced by order of the Ontario Court (General Division) on 27 February 1991. The pursuer continued to live with the children in the Province of Ontario where she still resides. At some point, undisclosed in the pleadings, the defender returned to Scotland where he now resides. It was provided in the separation agreement that if either of the parties obtained a decree of divorce, all its terms survived and continued in force. It was also provided that the law governing the interpretation and implementation of the separation agreement was the law prevailing from time to time in the Province of Ontario. On 13 February 1986 and 30 September 1992 the parties agreed formally, by separate agreements concluded in terms of paragraph 8 of the separation agreement, to vary the amounts paid by the defender. No other formal consensual variation of these amounts was made.

The pursuer avers in this action that between 1993 and 30 September 1997 the defender failed fully to pay the agreed maintenance payments for the children in terms of paragraph 7 of the separation agreement. These amounts, expressed in Canadian dollars, are set out in the schedule (No.6/1 of process) which is incorporated in the pursuer's pleadings. The schedule, in fact, purports to set out all the maintenance payments for the children which the defender made in terms of the agreement until 30 September 1997. In this action the pursuer seeks payment of what she maintains are the arrears of such maintenance payments between 1993 and 30 September 1997. The action was raised on 3 December 1997 and arrestments and inhibition have been made upon the dependence of it.

In answer, the defender avers that he wrote to the pursuer by letter dated 28 June 1993 intimating to her that he could not afford to pay the amounts agreed as maintenance payments for the children. He avers that he explained his financial circumstances in the letter and offered to pay half the amounts agreed. Thereafter he paid these amounts. The pursuer, he says, accepted these sums. He goes on to aver that Christopher ceased to be enrolled in a full time educational institution in 1995 and so in terms of paragraph 7(1) of the separation agreement he was thereafter under no obligation to make maintenance payments to the pursuer for him. The pursuer never advised him about the tuition fees for either child. Since Nicola was about to complete her university education in May 1997, the defender avers that he intimated to the pursuer that he would make no further payments after April 1997. Since April 1997 he ceased making any maintenance payments to the pursuer.

The pursuer in her averments acknowledges that she received the letter of 28 June 1993. On receipt of it, however, she telephoned the defender and objected to his proposed course of action. She did not agree to any further variations in the amounts payable by the defender. She says that she expressly pointed out to the defender that he was in breach of the separation agreement. He never intimated any wish to seek a variation which could be referred to arbitration. He just unilaterally stopped making the payments due. As for the tuition fees, she and the children at all times kept the defender informed of them in letters and telephone calls. Christopher had intended to begin his tertiary education in September 1995 but was unable to do so because the defender failed to meet his obligations in terms of the agreement. In fact, in June 1996, he began a course at Humber College, Ontario with the assistance of a student loan.

The dispute between the parties therefore turns essentially upon three questions. First, whether the pursuer acquiesced in the reductions in the amounts of maintenance payments for the children which the defender proposed in his letter of 28 June 1993, or whether on the other hand she consistently objected to that proposal while at the same time accepting these amounts. Second, whether the defender was justified in refusing to make further payments in respect of Christopher from 1995 onwards. And, third, whether the defender was at all times appraised of the tuition fees which were payable in respect of the children. Against that background the defender pleads, firstly, forum non conveniens, and, secondly, that the cause should be sisted pending arbitration under the Arbitrations Act of Ontario. Both parties have pleas to the relevancy of their respective averments and sought to argue them before me.

It is convenient to consider the arbitration plea first. Paragraph 8 of the separation agreement provides as follows:-

If the defender establishes in this action that effectively the pursuer consented to the reductions in the sums she received, the question of arbitration does not arise. If, on the other hand, the Court is persuaded by the pursuer that she always accepted the payments under protest and that the defender well knew that she objected to the reductions, he was obliged at least in 1993 to submit that matter to arbitration. He signally failed to do so. The agreed sums therefore remain due and payable. I agree with Mr Fitzpatrick's submission that there is nothing in the defender's pleadings to justify the operation of paragraph 8. As Mr Fitzpatrick put it, the present dispute is not contracted to go to arbitration, despite the defender's averments at page 9C that the parties have submitted to arbitration in Ontario. I note, too, the averments at page 9D:

I am not clear from these averments whether the arbitration proceedings have begun or indeed would, after such a lapse in time, be entertained under the Act referred to in paragraph 8. Mrs McColl who appeared for the defender, did however inform me at the Bar that no action had yet been raised in Ontario. But she said that she had firm instructions to have the matter referred without delay to the Court in Ontario. I would also point out that the second and third of the questions in dispute between the parties which I have set out above, would not appear to me to fall within the arbitration provisions of paragraph 8, since the defender's alleged failure to pay the tuition fees is not said to be the result of a material change in his financial circumstances. It also seems to me that if in this action it were to be established that the defender persisted in paying the pursuer reduced amounts of maintenance payments despite being aware that she objected to the reductions, arbitration under paragraph 8 may not arise. I accept, of course, that the application of paragraph 8 to the facts which may be established in this action, is a question for the law of the Province of Ontario. In the whole matter I am not satisfied that there are sufficiently relevant averments in the defences to justify my upholding the defender's second plea and sisting this case pending arbitration under the Arbitrations Act of Ontario.

The defender's principal plea is forum non conveniens, and the averments upon which the defender principally founds are to be found on pages 9B-D and 10A-B of the Closed Record. He avers that, as is accepted, the separation agreement is to be construed in accordance with the law of Ontario. It has no connection with Scotland. He would be prejudiced, he says, if the action is allowed to proceed in Scotland since he will be required to incur the expense of adducing evidence of the law of Ontario. The proper forum for the pursuer's claim is the Province of Ontario. Besides, the defender proposes to raise arbitration proceedings in Ontario. Arbitration, says Mrs McColl, would be speedier than proceedings before the Court in Scotland; and she asked, rhetorically, what was the prejudice to the pursuer if this action were sisted for proceedings to be commenced in Ontario?

The pursuer's response to that question was immediate. The defender is resident in this jurisdiction. He owns heritage here and he has a bank account here. Indeed the pursuer had already arrested and inhibited on the dependence. Moreover, no issue of foreign law was relevantly focused in his pleadings. In any event, the very fact that foreign law was applicable did not by itself justify the plea of forum non conveniens. (See Credit Chimique v James Scott Engineering Group Ltd 1979 S.C.406). It was not clear what type of hearing was envisaged in Canada. If the application was to the Court, no doubt the decree could be enforced. If it was to an arbiter, it was not clear that his award could be enforced in this jurisdiction.

The Court in Scotland may, in the exercise of its discretion, sist the proceedings in Scotland if "it is satisfied that there is some other tribunal, having competent jurisdiction, in which the case may be tried more suitably for the interests of the parties and for the ends of justice". (See Sim v Robinow 1892 19R 665 per Lord Kinnear at page 668). In de Dampierre v de Dampierre 1981 1 A.C.92 Lord Goff, having made reference to the dictum of Lord Kinnear, went on at page 108:

In Credit Chimique (cited above) Lord Jauncey, referring to the principles upon which the Court will consider whether or not to uphold the plea of forum non conveniens, summarised them as follows:

(See also and compare B v B 1998 S.L.T.1245).

In this case, the question of foreign law which has been raised is set out on page 9 of the Closed Record. There the defender avers:

Mr Fitzpatrick submitted, in terms of the Call on page 7, that the defender had failed to aver the source in the law of Ontario of any such principle against hoarding. The pursuer herself avers (at page 7B) that by the law of the Province of Ontario the pursuer would be entitled to enforce the present claim in full. Foreign law has to be established as a matter of fact: that much is clear. The only question I have to consider, therefore, is whether the defender has given sufficient notice in his pleadings of what he intends to establish is the foreign law applicable. I think he has done that, and I think that the pursuer should be in a position to determine, by reference no doubt to an expert in Ontario law, whether the defender's averments are correct and whether the statement of the relevant law is applicable to the present case.

It is, of course, true that the defender will be put to the expense of obtaining and leading expert legal evidence. But so also will the pursuer have that expense. Moreover, the defender, if he really means to raise proceedings in Ontario, will have to incur the expense of that in addition to the expense which he has so far incurred in this action. On the other hand, this action has been in the Court of Session since 3 December 1997. The defender is resident here. A decree of this Court may readily be enforced against him. Diligence has been done on the dependence of this action. The pursuer and her witnesses are prepared to come here for any proof. Against that background I am clear that the defender has not discharged the burden which lies upon him to show why, in the circumstances averred, this Court should not exercise its undoubted jurisdiction. I am not satisfied that there is some other tribunal having competent jurisdiction in which the case may be tried more suitably for the interests of the parties and for the ends of justice. In the exercise of my discretion, I decline to uphold the defender's first plea-in-law and to sist the action.

Mrs McColl criticised the pursuer's pleadings in relation to the claims for tuition fees. In Nicola's case she said there was no specification about her post-secondary education, where it was or how much were the tuition fees. The schedule (No.6/1) simply listed tuition fees for both children. As for Christopher, it was plain that he ceased his secondary education and did not begin his post-secondary education till a year later. The pursuer should aver the circumstances in which the defender's obligation to aliment Christopher continued a year after his secondary education came to an end. The averments in relation to Hunter College, Ontario, were inspecific and the schedule did not disclose which tuition fees were payable in respect of him. Lastly, the 1997 figures in the schedule did not make sense. The pursuer's action should be dismissed.

I thought that Mrs McColl's criticisms had all the feel and appearance of the theoretical or academic. For example, I cannot believe that the defender was unaware of where Nicola was receiving her tertiary education. By 1993 she was 18, and by 1995 Christopher had reached his 18th birthday. On his behalf it is averred that by reason of the defender's failure in his obligations to him under the separation agreement he was unable to begin his post-secondary education, intended to begin in September 1995, until June 1996. It is correct that the figures for tuition fees are not broken down as between the two children. But that can be resolved by a suitably drawn specification of documents served upon the pursuer, in the event of her agents refusing or delaying to produce the required information. In that way, the defender will no doubt learn more about Humber College, Ontario if he does not himself already know about it. As for the figure for 1997, I agree that it does not appear to make sense, but the total is entirely favourable to the defender on the face of it. I consider that the pursuer's averments are sufficiently relevant and specific to go to proof.

I will repel the defender's first and second pleas-in-law and allow the parties a proof before answer of their averments, under exception of the quoted sentence at page 9D.