Reclaiming Motion in the cause X against Y (Court of Session)

Factual and Procedural Background

This opinion concerns a reclaiming motion by the Defender against an interlocutor of the Lord Ordinary in an action raised by the Pursuer for damages alleging a course of conduct contrary to section 8 of the Protection from Harassment Act 1997. The Pursuer and Defender were formerly married (marriage 1995–2020; separation 2018). The Pursuer sued alleging physical, sexual and emotional abuse between 16 June 1997 and 2019. The action was served on the Defender on 2 December 2020. In 2022 the Defender was convicted on indictment of two charges of assault and two charges of threatening and abusive behaviour, receiving a community-based sentence and a non-harassment order. Because of the nature of the allegations and the existence of the non-harassment order, a curator ad litem was appointed to conduct cross-examination of the Pursuer. The Lord Ordinary found multiple assaults and a course of conduct amounting to harassment and awarded damages. The Defender reclaims against various findings of fact, evidential rulings and procedural matters. The reclaiming motion was heard by a bench comprising Judge Wise, Judge Clark and Judge Carmichael; Judge Carmichael delivered the opinion on 10 June 2026.

Legal Issues Presented

1. Whether the Lord Ordinary erred in relying on general practitioner records (not expressly founded by the Pursuer) to establish an assault on 17 September 1997 and thereby the commencement date of the alleged course of conduct.
2. Whether the Lord Ordinary made impermissible fact-finding beyond evidence led in relation to alleged incidents (including assaults during a week in Gloucestershire in 2017 and an incident in Mexico).
3. Whether the refusal to admit contemporaneous correspondence (for use in cross-examination) caused unfairness to the Defender.
4. Whether the Lord Ordinary misapprehended a police incident report (2 September 2006) and improperly relied upon it.
5. Whether the finding of an assault in August 2018 was unsupported and affected limitation and damages calculations.
6. Whether the late appointment of a curator ad litem and substitution of court-appointed counsel complied with Article 6 ECHR and preserved equality of arms.

Arguments of the Parties

Defender's Arguments

• The Lord Ordinary wrongly relied on GP records on which the Pursuer had not founded, enabling a finding of assault on 17 September 1997 for which there was no fair notice and no identified perpetrator.
• The Lord Ordinary made findings unsupported by evidence or the pleadings regarding multiple assaults during a week in Gloucestershire in 2017 and conduct on a holiday in Mexico.
• The Lord Ordinary improperly refused to admit contemporaneous correspondence produced shortly after the Mexico trip.
• The Lord Ordinary misapprehended the police incident report dated 2 September 2006; the Pursuer did not wish to make a complaint then.
• The finding of an assault in August 2018 was inconsistent with the Pursuer's earlier email to police (stating the last incident was late 2017) and had significance for limitation, damages and interest.
• The late appointment of a curator ad litem (and replacement of cross-examination by court-appointed counsel) may have impaired the Defender's Article 6 rights and equality of arms given limited preparation time.

Pursuer's Arguments

• Appellate interference with trial credibility and reliability findings is limited; authorities cited include McGraddie v McGraddie and CD v ND.
• A course of conduct may legitimately be pleaded as patterns of behaviour without specifying every date, and the Lord Ordinary was entitled to rely on the GP record dated 17 September 1997 as falling within averred periods of abuse.
• The Lord Ordinary correctly treated the evidence about the Gloucestershire week and the Mexico trip; contemporaneous correspondence was lodged too late and admitting it would have prejudiced the Pursuer.
• The curator ad litem had adequate time (18 days) to prepare and was senior counsel experienced in relevant practice; there was no demonstrated unfairness or inadequacy in representation.
• The Lord Ordinary properly treated the police report (2 September 2006) and photographs as supportive of the Pursuer's account, and reasonably accepted evidence of an assault in August 2018 despite the September 2019 email.

Table of Precedents Cited

Court's Reasoning and Analysis

The court reviewed each ground of reclaiming in light of the evidence and applicable authorities. It emphasised the restricted scope for appellate interference with trial credibility findings and applied authorities requiring fair notice without demanding excessive specification in a long-running course of conduct case. The court concluded the Lord Ordinary was entitled to rely on the handwritten GP entry dated 17 September 1997 (admitted by joint minute and consistent with averments and other evidence) despite it not naming a perpetrator. On the Gloucestershire week the court accepted the Lord Ordinary's finding that the Pursuer gave credible evidence of a single assault during the week, and that acceptance was reasonably open to him. Regarding the Mexico trip, the court held the pleadings and affidavit gave fair notice of the allegation that the Defender had taken furniture and left the children in the care of an au pair while the Pursuer was away; the late contemporaneous letter sought to be introduced for credibility testing was admissible in principle but was not shown to have caused material prejudice. The court accepted the Lord Ordinary's treatment of the 2 September 2006 police report and related photographs as supportive of the Pursuer's account and rejected the suggestion of fabrication absent supporting evidence. Concerning the August 2018 assault the court accepted the Lord Ordinary's detailed reasoning for preferring the Pursuer's evidence over the 29 September 2019 email and found no error. On Article 6 and the curator ad litem, the court found no demonstrated unfairness from the timing of appointment or from substitution of court-appointed counsel given the curator's experience, access to papers and 18 days' preparation. The court noted pending statutory amendments that will afford explicit powers and presumptions regarding prohibition of personal conduct by alleged abusers and the need to assign curator fee liability in interlocutors.

Holding and Implications

RECLAIMING MOTION REFUSED

Direct effect: the court adhered to the Lord Ordinary's interlocutor of 24 September 2025, refusing the Defender's reclaiming motion and reserving questions of expenses. The court declined to overturn the Lord Ordinary's factual findings or evidential rulings. Broader implications: the decision applies established principles on appellate restraint, fair notice in long-running course of conduct pleadings, and the proper exercise of discretion on evidential rulings; it does not establish a new legal test. The opinion also observed forthcoming statutory changes that will provide explicit powers in civil actions to order special measures (including presumptions about personal conduct by alleged abusers) when amendments to the Vulnerable Witnesses (Scotland) Act 2004 are brought into force.