Dundee man loses appeal against summary decree for repossession of home based on pseudo-legal ‘common law’

About this case:

• Citation:
  [2025] SAC (Civ) 22
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Gillian A Wade KC

Pursuer and respondent Together Commercial Finance Ltd raised an action against defender and appellant John Smith following his failure to comply with a Calling Up Notice issued in 2024. The grounds of appeal purported to challenge the jurisdiction of the court, argued that the role of the lord advocate violated the principle of separation of powers, and asserted that the sheriff had failed to take account of “Common Law Court Orders”.

The appeal was heard by Sheriff Principal Gillian Wade KC, with the appellant representing himself and the respondent represented by a solicitor.

A “living man”

Following service of the action by sheriff officer on 19 November 2024, the appellant lodged a Notice of Intention to Defend and then two letters dated 22 December 2024 and 5 February 2025 in which he set out his proposed defences to the action. It was implied admitted in these letters that there was a standard security over the subjects at Wurzburg Court, Dundee, that the appellant had failed to make payments in terms of the loan, and that he had failed to comply with the terms of a Calling Up Notice served on him.

The appellant lodged 9 defences to the action, including that no valid contract existed and that he was not the correct party in the dispute. He asserted that the court lacked authority and jurisdiction over a “living man” and made claims of unlawful use of slavery (on the basis that attempts to impose obligations without lawful consent constituted human rights violations), human trafficking, and fraud.

On 11 February 2025, the respondent lodged a motion for summary decree on the basis that the appellant’s case had no real prospect of success. A hearing on that motion was assigned to call on 20 March 2025 but was postponed to allow the appellant to instruct a solicitor. The day before the rescheduled hearing date, the appellant informed the court that he would not attend, and the sheriff granted summary decree in his absence.

In his appeal submissions, which largely mirrored his original defences to the action, the appellant claimed that he had been deprived of the opportunity to be heard on the preliminary issues of the case. He referred to what were described as “Common Law Court Orders” which he maintains were not complied with by those upon whom they were served (who were not party to the proceedings).

The appellant further asked the court to recognise his status as a “living man” and to confirm that no further procedure be allowed unless jurisdiction was established by consent. The respondent submitted that the sheriff had applied the correct legal test in granting summary decree and took into account the fact that the appellant had been aware of the hearing but failed to appear.

Spurious and non-specific

In her decision, Sheriff Principal Wade began by assessing the merits of the case: “The appropriate pre action protocols were observed and the Calling Up Notice upon which the action proceeds was duly served. The appellant does not state any defence which directly addresses the merits of the case. On that basis there is no doubt that the appellant has no real prospect of success in the action.”

She continued: “Turning then to whether there exists any other compelling reason why summary decree should not have been granted I have had regard to the content of the two letters which were lodged with the sheriff clerk and upon which the appellant sought to rely. I have taken account of the fact that the appellant is representing himself and should be afforded some degree of latitude at least in relation to form. If it were the case that those letters disclosed a discernible substantive defence to the action I may have been minded to overlook any deficiencies as to form. Regrettably that is not the case.”

Considering the purported defences advanced by the appellant, Sheriff Principal Wade said: “The issues of slavery, human trafficking and breach of human rights to which the appellant refers without any specification as to their application simply do not arise in the context of this action. The reference to these matters is so spurious and non-specific as to render it impossible for the respondents to respond to any such averment. The remaining allegations of fraud and criminality are wholly misplaced and irrelevant if not indeed amounting to what can be termed ‘scandalous’. No factual basis is provided for such an assertion.”

She concluded: “The suggestion that by styling oneself as ‘a living man’ rather than a legal person one can in some way avoid the jurisdiction of the court and the obligation to make loan repayments under a properly constituted agreement with a bona fide lender is not only without foundation but is a futile attempt to deprive the respondents of the legal remedy to which they are entitled. Such arguments have no place in Scots law and those who seek to advance them can expect their overt attempts to abuse the court process to sound in expenses.”

The appeal was therefore refused and the decision of the sheriff affirmed.