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Introduction
10. 1 At one time spouses could not sue each other in contract or delict. 1 This was sometimes said to be based on the idea that the husband and wife were one person in law, but there was also a fear that the courts would be burdened by actions arising out of domestic squabbles and that such litigation would not be in the spouses 2 own interests.
The courts departed from this rule in the case of contract, holding that the changes in the legal position of married Women made by the Married Women's Property (Scotland) Act 1920 were inconsistent with the restriction. 3 Parliament changed the rule in the case of delict, allowing spouses to sue each other but giving the court a power to dismiss the proceedings if it appeared that no substantial benefit would accrue to either party. 4 The question for consideration here is whether this power to dismiss is necessary.
Present law
10.2 The present law on actions between spouses in delict is contained in section 2 of the Law Reform (Husband and Wife) Act 1962 which provides as follows.
(1) Subject to the provisions of this section, each of the parties to a marriage shall have the like right to bring proceedings against the other in respect of a wrongful or negligent act or omission, or for the prevention of a wrongful act, as if they were not married.
(2) Where any such proceedings are brought by one of the parties to a marriage against the other during the subsistence of the marriage, the court may dismiss the proceedings if it appears that no substantial benefit would accrue to either party from the continuation thereof; and it shall be the duty of the court to consider at an early stage of the proceedings whether the power to dismiss the proceedings under this subsection should or should not be exercised. "
The power to dismiss conferred by subsection (2) does not apply to proceedings under the Matrimonial Homes (Family Protection) (Scotland) Act 1981. 5
10.3 The power to dismiss in subsection (2) of the 1962 Act is based on a recommendation of the (English) Law Reform Committee. 6 In recommending the removal from English law of the old prohibition of actions in tort between spouses (which was similar to the prohibition operating in Scotland) the Committee noted that in several foreign countries "whose social standards are similar to our own" there was no bar on proceedings and that there was no reason to believe that marriages had been put in jeopardy in consequence. 7 They also noted, however, that only one of the memoranda submitted to them advocated the removal of all restrictions. They considered that to allow spouses to sue each other in tort without any restrictions could lead to harmful results. An action could lead to strains in the relationship and, if the action was in respect of "petty acts of negligence in the domestic sphere", would "certainly not be conducive to the continuance of the marriage". 8 In a later passage the Committee explained that the recommended power to stay proceedings should apply even if the spouses were no longer cohabiting, because there might be some possibility of a reconciliation and because, in any event, litigation might serve "only as an excuse for the airing of matrimonial grievances and bitterness". 9 The Committee's recommendation was therefore that the court should have power to stay an action in tort between spouses
"if, having regard to all the circumstances, including the conduct of the parties and the nature of the matter complained of, the judge is satisfied that the complaint is not one of substance or that it is not in the interests of the parties that the action should proceed." 10
10.4 The last part of the Law Reform Committee's recommendation (relating to the interests of the parties) was not included in the Bill put before Parliament because it was recognised that it would be impracticable and undesirable to ask a court to assess in the early stages of an action what would be in the best interests of the parties. That would require an examination of the whole nature of their relationship. As was pointed out in Parliament, securely married couples would be allowed to sue each other, and couples whose relationship had already broken down would be allowed to sue each other, but those whose relationship was in a state of doubt might not be. Indeed, a court would have to ask itself not only about the soundness of the parties' marriage and the likely effect of the action on it, but also about "the advantages or disadvantages of maintaining a married state in the society in which we live. 11 The "no substantial benefit " formula was intended to provide a more practicable test which would meet the concern behind the other part of the Law Reform Committee's recommendation. It was explained in Parliament that the formula had nothing to do with the likely effect of the litigation on the spouses' relationship or with the "ethical or moral disadvantages or advantages of pursuing a spouse in a court of law". 12 It was confined to monetary or property matters and was intended to allow cases to be dismissed if there was no prospect of recovery from the other party or if the injury complained of was quite trivial. 13 It was explained that if either party could show that he or she would receive a substantial benefit from pursuing the litigation the court would not have power to dismiss. 14
10.5 The "no substantial benefit" formula did not escape criticism in Parliament. It was pointed out that it was vague and would be difficult to apply, and that if there was any real damage, sufficient to justify litigation at all, then compensation for that damage could be said to be a substantial benefit. 15
10.6 It is anomalous to give a court power to dismiss proceedings because in the judge's view their continuation would result in no substantial benefit to either party. Normally it is for the pursuer or petitioner to decide whether litigation is worthwhile. There are obvious and powerful disincentives to embarking on litigation without legal aid if no substantial benefit is likely to accrue. Civil legal aid is not available unless the Legal Aid Board is satisfied that the applicant has a probabilis causa litigandi and that
"it is reasonable in the particular circumstances of the case that he should receive legal aid." 16
It is not available at all for defamation proceedings. 17 A Lexis search of Scottish cases, reported and unreported, in the Court of Session and sheriff courts, since 1962 has revealed no case in which section 2(2) has been referred to'. We know of no case, and those who responded to our discussion paper mentioned none, which did not proceed because of section 2(2) but which would have proceeded in the absence of section 2(2). There is no equivalent of section 2(2) in relation to actions between other near relatives, or between cohabitants, or between any other categories of litigants. Yet the courts are not flooded by pointless actions.
10.7 All but one of the responses to this issue on consultation agreed with our provisional view that section 2(2) of the 1962 Act was anomalous and unnecessary and should be repealed.
10.8 We recommend that
(Draft Bill, clause 24(c) and Schedule 2.)
This recommendation is given effect to by clause 24 of the draft Bill which collects together in one provision some rules relating to the legal equality and independence of spouses which currently appear in various places. This enables the whole of the 1962 Act to be repealed in Schedule 2.
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