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Monday 15 April 2013
A husband excluded from further participation in divorce litigation and found to be in contempt of court has failed in his appeal against his divorce proceeding undefended.
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DISRUPTIVE HUSBAND EXCLUDED FROM FURTHER PARTICIPATION IN DIVORCE ACTION


A husband excluded from further participation in divorce litigation and found to be in contempt of court has failed in his appeal against his divorce proceeding undefended.

Lady Paton, Lady Smith and Lord Bracadale in the Court of Session Inner House refused the appeal and remitted the action to the sheriff at Stirling.

The pursuer, Ahdieh Yazdanparast, took an action of divorce against her husband, the defender, Ahmed Yazdanparast.

The relevant assets included a number of heritable properties and business interests, with each party claiming financial provision from the other.

In the Sheriff Court, the defender sought to introduce a new claim for an order for the transfer to him of the pursuer's share in one of the parties' jointly owned heritable properties. As such he called for a later proof with no prior notice of that motion being given.

The sheriff refused the motion for discharge and the proof began. He reasoned the fact that one party is “not ready is not a good reason to postpone a proof”.

When the sheriff subsequently refused the defender’s motion for the hearing to be adjourned, the defender began to argue and started “screaming and wailing in court”. He also banged his head on the table in the well of the court and slapped the table.

When the sheriff asked the police constable to remove the defender from court, the defender refused to cooperate and fell to his knees.

The sheriff concluded that the defender’s behaviour amounted to a contempt of court. Due to the defender’s persistent disruptive behaviour, the sheriff found him to be in default of the Ordinary Cause Rules (OCR) and took the decision to exclude the defender from proceedings.

After the defender had been advised of the sheriff's decisions he became verbally aggressive and alleged to the sheriff: “he has barbecued me and now you barbecue me”. The “he” referred to was the pursuer's solicitor.

Having appealed unsuccessfully to the Sheriff Principal, the defender appealed to Court of Session.

He submitted that the sheriff’s decision to allow the cause to proceed as undefended was “disproportionate and unnecessary”. It was argued that the sheriff had failed to give sufficient weight to the defender’s right to vindicate his claim for fair financial provision on divorce.

Delivering the opinion of the court, Lady Smith, agreed with the sheriff that the defender was in default of the OCR.

Although to exclude the defender from further participation in litigation was a “draconian step”, as the sheriff provided a detailed and careful explanation of how and why the defender’s failure in that regard amounted to a relevant default, he was entitled to exercise his discretion.

Lady Smith said: “Sanction was, we agree, called for. As for the suggestion that resolution of the parties' financial dispute be postponed, that would have been wholly inappropriate. This was a dispute that was crying out for resolution. Nothing in the circumstances before the sheriff pointed to it being in the interests of either party for it to be put ‘on the back burner’.

“We cannot find fault with the sheriff's reasoning. The factors on which he relied were all relevant and together they amounted to a powerful case for determining on the sanction provided for by OCR 33.37(2)(a).”

With regard to the finding of contempt, the court found no merit in the defender’s argument.

Lady Smith added: “The sheriff did not need to state expressly that he was satisfied beyond reasonable doubt that the defender's conduct was wilful in circumstances where he set out in his reasons, very clearly and carefully, what he observed himself and the steps he took to ascertain that there was no medical explanation for the defender's disruptive behaviour - which, on the face of matters, obviously amounted to a contempt of court.”

The court was not persuaded that any of the defender’s criticisms were sound, adding that the sheriff’s handling and recording of the difficult circumstances were “exemplary”.


http://www.scotcourts.gov.uk/opinions/2013CSIH27.html

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