CD v ND [2025] CSIH 12 – Court of Session Inner House Appeal: A Case Summary

Background of the Case

Lord Stuart accepted the evidence presented by our client, determining that the couple separated on 6 January 2020, a later date than the husband had proposed. The husband subsequently appealed Lord Stuart's decision, raising issues of identification and application of the correct legal test, his conduct of the proof, and his assessment of the evidence.  

Key Submissions in the Appeal

Submissions for the Husband

The submissions made on behalf of the husband consisted of the following:-

1. Lord Stuart ought to have considered the whole admitted period of cohabitation and not just the disputed period. This would have established the usual nature of the parties' cohabitation in order to understand when a change took place.
   
   
2. Lord Stuart made an error, having the underlying assumption that he had to pick between two dates. He had failed to recognise that he was not limited to determining between two dates but could fix any date that was objectively the correct one on the evidence. In support of this argument, Counsel for the husband stated that even if the Lord Ordinary was not supported in the 2017 separation date, there was evidence to suggest that all signs of affection between the couple ceased in around April 2018. Lord Stuart could have decided upon this date, but his judgment did not seem to show awareness that he was able to choose an alternative date.
   
   
3. Lord Stuart's conduct during the proof had tainted his assessment of the evidence and rendered the proceedings unfair. There had been 230 separate interventions by the Lord Ordinary during the evidence of the parties alone. Seven specific examples of those were given to the Court to show unfairness. Counsel for the husband argued that the interventions were generally unfavourable to the husband and favourable to the wife.
   
   
4. There was also a challenge to how the Lord Ordinary had dealt with credibility and reliability. He had failed to explain the basis on which the untruthfulness in the defender's original affidavit could be differentiated from the oral evidence she gave at proof. Lord Stuart had also rejected the evidence of the husband's two witnesses despite the fact that they gave evidence as to the timing of the breakdown of the parties' relationship.
   
   

Counsel for the Husband asked the Court to substitute Lord Stuart's judgment for its own if they were dissatisfied with his original judgment. 

Submissions for the Wife

Counsel for the Wife argued that there was no basis to interfere with Lord Stuart's judgment. He had reached his conclusion of the later relevant date of 6 January 2020 after nine days of evidence.

The submissions made on behalf of the wife were as follows:-

1. Lord Stuart did not make an overt acknowledgement of the husband's alternative relevant date of 2018, but there was a clear implication in his judgment that he knew a different relevant date was possible. He stated that circumstances weigh against the defender's asserted date of separation but did not support that advanced by the pursuer. As he did consider that particular aspect as decisive, he must have understood that relevant evidence might not fit any of the dates put forward by the parties.
   
   
2. The judgment of Lord Stuart had woven together the evidential threads in relation to the parties' dispute and demonstrated a carefully balanced forensic analysis, and those were in favour of the wife's position. To succeed in the appeal, the husband must show that no reasonable judge could have reached the same determination on the evidence. It was simply not enough for the husband to disagree with the findings made at first instance, as these all had a basis in evidence.
   
   
3. Lord Stuart's conduct had not been such as to render the process unfair. He had a communicative and perhaps conversational style, but different judicial styles can be accommodated within the system. The Lord Ordinary had not taken over cross-examination at any time, and the direction and focus of the task of eliciting evidence remained with counsel on both sides.
   
   
4. The matter of credibility and reliability was pre-eminently a matter for the Lord Ordinary. The wife's untruthfulness in relation to her infidelities may have detracted from her credibility to some degree, but could not disqualify Lord Stuart from accepting her evidence on other critical matters. 

Decision of the Inner House Judges

The Inner House Judges made the following conclusions after hearing submissions for the husband and wife:-

1. They did not consider that Lord Stuart fell into error by focusing his analysis on the period from August 2016 onwards. The earlier days of the couple's marriage had little bearing on the case as presented by counsel.
   
   
2. It was clear from his judgment that Lord Stuart understood that the issue must be looked at objectively, by referring to relevant authorities. It was clear from his analysis of the disputed period that he had concluded on the evidence that no date earlier than 6 January 2020 could be identified as the relevant date.
   
   
3. They concluded that in the context of 9 days of evidence and having regard to necessary accommodation for different judicial styles, the boundary between legitimate questioning and unfair conduct was not crossed. Impatience with the slow pace at which evidence is elicited and an overly conversational style is not sufficient to render proceedings unfair. Certain of the Lord Ordinary's interventions during proceedings were criticised as exceeding what is acceptable, although, the Appeal court concluded that overall, the boundary between legitimate questioning and unfair conduct was 'not quite crossed'.Despite having been troubled by the conduct, they did not consider that it was such as to vitiate the proceedings through unfairness.
   
   
4. There was no reason to assume that the wife's initial lack of candour in relation to her sexual conduct would result in the husband's evidence being preferred overall. The Inner House did not have the benefit of observing a witness give evidence to assess credibility. They stated that a transcript of evidence cannot replicate the arena in which it was given.
   
   

In light of their conclusions, the Inner House refused the appeal and adhered to the decision of the Lord Ordinary. 

Conclusion 

The case of CD v ND highlights the complexities involved in legal disputes surrounding separation dates, evidential analysis, and credibility assessments.

If you are navigating a similar family law issue or seeking clarity on matters of separation, it is crucial to seek professional legal advice to understand your rights and options. Our experienced legal team is here to help you navigate the complexities of family law, ensuring that your case is presented effectively and with genuine care for your situation.

Contact us today at {{CONTACT_NUMBER}} for a consultation and take the first step toward resolving your family law matters with confidence.