A former wife recovered damages from her former husband for a course of abusive conduct during the marriage under the Protection from Harassment Act 1997. His appeal was refused.
Background
The parties were married from 1995 until 2020 and separated in 2018. The pursuer raised an action of damages alleging that during the marriage the defender pursued a course of conduct against her contrary to section 8 of the Protection from Harassment Act 1997, by abusing her physically, sexually and emotionally. The conduct was said to span the period from 16 June 1997, when the 1997 Act came into force, to 2019. The action was served in December 2020.
In 2022 the defender was convicted on indictment of two charges of assault and two of threatening and abusive behaviour. He received a community-based sentence and the sheriff imposed a non-harassment order.
Given the nature of the allegations and the existence of that order, the Lord Ordinary appointed a curator ad litem to conduct the cross-examination of the pursuer.
The first-instance findings
The Lord Ordinary was satisfied that the defender had engaged in a course of conduct involving physical assaults between 17 September 1997 and August 2018, directed at causing physical and psychological harm. He also found proved a number of allegations of abusive language and conduct, being satisfied that specified aspects of the defender’s language and conduct were aimed at hurting or humiliating the pursuer and undermining her confidence so that he could assert control over her, and that these formed part of his course of harassment.
The appeal
The defender reclaimed against various aspects of the decision, including the Lord Ordinary’s reliance on general practitioner records and his treatment of evidence relating to an incident that had resulted in a not proven verdict at the criminal trial. On that incident the Lord Ordinary had taken the view that the police summary and photographs supported the pursuer’s account, observing that by calling the police the pursuer was escalating matters.
The Inner House refused the reclaiming motion, adhered to the Lord Ordinary’s interlocutor of 24 September 2025 and reserved all questions of expenses.
Why this decision matters
Section 8 of the 1997 Act provides a civil remedy in damages for a course of abusive conduct within a marriage, running alongside any criminal proceedings. A not proven verdict on a particular incident does not prevent the civil court, applying the balance of probabilities, from finding that incident established.
Conduct aimed at humiliating a partner and undermining their confidence in order to assert control can form part of a course of harassment, alongside physical assault.
The court also addressed the practical position of a party litigant subject to a non-harassment order. It observed that where a curator ad litem is appointed, the interlocutor should specify which party is liable in the first instance for the curator’s fees, so as to avoid delay or uncertainty over remuneration for what is a significant professional commitment.
Civil damages for harassment are distinct from protective remedies such as interdicts and non-harassment orders. A person who requires immediate protection should take advice on the appropriate protective order rather than assume that a damages action provides it. Our guide to interdicts and non-harassment orders in Scotland explains the protective remedies available.
Legal review: Brian Rooney, Managing Partner and Law Society of Scotland Accredited Specialist in Family Law.