Sheriff Appeal Court refuses appeal against rejection of amendment to add new pursuer in case against solar panel loan provider

About this case:

• Citation:
  [2026] SAC (Civ) 31
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Aisha Anwar

Pursuer and appellant Alan Clark and his wife entered into a loan agreement in January 2014, governed by English law, with defender and respondent Shawbrook Bank Ltd in connection with a separate contract, governed by Scots law, with My Planet Ltd for the supply and installation of solar panels, which he averred he was induced into entering by misrepresentations made by a salesman for My Planet. The appellant argued that the sheriff erred in concluding that his proposed amendment was a fundamental change to the action and that she placed excessive weight on the nature of the amendment as adding another party to the claim.

The appeal was heard by Sheriff Principal Aisha Anwar, with Tosh, advocate, appearing for the appellant and RG Anderson, advocate, appearing for the respondent.

Change of fundamental nature

In March 2019, three years after My Planet’s liquidation, the appellant raised proceedings against the respondent seeking payment of £10,623.01 plus interest based on a breach of an implied term of the contract under section 75 of the Consumer Credit Act 1974. He averred that the salesman for My Planet represented that the solar panels would pay for themselves and generate a profit for him, and that the salesman was an agent for the respondent thus entitling him to damages under English law for misrepresentation. A third part of his case asserted that he was entitled to an order for repayment of the sums paid under the loan agreement, as the relationship between him and the respondent was unfair per section 140B of the 1974 Act.

Before the sheriff, the focus in submissions was on the issue of prescription, and she concluded that the appellant did not on his own have title to sue. During an amendment procedure, upon the production of the contractual documentation by the appellant, it became apparent that Mrs Clark was a party to the loan agreement and the contract with My Planet Ltd. This prompted the respondent to introduce a plea of no title to sue. To address that plea, the appellant sought to amend his pleadings by adding Mrs Clark as an additional pursuer.

The sheriff refused to allow the relevant parts of the appellant’s amendments on the basis that no relevant claim had been made to interrupt prescription. The proposed amendment made a change of a fundamental nature to the case and was not a mere technical error as argued by the pursuer. On appeal, the appellant submitted that the proposed amendment did not change the essence of the case, and no prejudice would be suffered by the respondent other than the loss of the advantage conferred by prescription.

For the respondent it was submitted that the sheriff’s decision was a discretionary one, and it would be improper to allow an amendment to introduce a new party after the expiry of the prescriptive period. Unlike cases on misdescription of juristic persons, here, the appellant was a natural person who ought to have been aware of Mrs Clark’s interest, and it was plain that she was not a party to the proceedings.

A deliberate choice

In her decision, Sheriff Principal Anwar began by observing: “The present difficulty has arisen as a result of the limited information before the pleader when the initial writ was drafted. Counsel for the appellant explained that this action was one of a larger number of actions in Scotland and England involving the respondent. The appellant’s agents had received instructions from English agents in the form of a spreadsheet or data file. Mrs Clark had not been mentioned on the spreadsheet. The initial writ had been drafted without sight of the loan agreement. The pursuer had simply averred ‘a copy of the contract will be produced’. The terms of the contract with My Planet Ltd and the loan agreement formed the basis of the pursuer’s claim. These ought to have been lodged when the initial writ was returned in 2019.”

She added: “The amendment seeks to change the definition of ‘pursuer’ from one natural person to two natural persons. The proposed amendment is designed to defeat the respondent’s plea that the appellant alone has no title to sue, which might otherwise lead to dismissal of the appellant’s first and second heads of claim. Having examined the substance of the proposed amendment, the sheriff was correct to conclude that as it was of a fundamental nature and sought to introduce a new party after the expiry of the period of prescription, she was constrained in the exercise of her discretion by the dictum of Lord President Hamilton in Gray Aitken v Link Housing Association Ltd (2007).”

Considering the potential prejudice to the respondent, Sheriff Principal Anwar said: “I accept that the respondent would not require to make further investigations or to be faced with a fresh set of facts, as a result of the addition of Mrs Clark as a party to the action. That is a relevant factor in the exercise of the court’s discretion. However, the loss of the advantage conferred by prescription and the ability to seek dismissal of the craves related to the first and second heads of claim on the basis that the appellant has no title to sue, is also a relevant consideration and does constitute a prejudice to the respondent. The appellant, on the other hand, may still pursue his third head of claim.”

She concluded: “The error was not one which arose as a result of the mis-transcribing of information or the copying and pasting of material. A deliberate choice had been made to refer only to the appellant in a spreadsheet or data file of potential litigants who may raise proceedings against the respondents in Scotland, presumably by someone who had considered the relevant contractual material. A deliberate choice had been made by the drafter of the initial writ to rely upon the content of that spreadsheet rather than examine and timeously lodge the founding contractual documents. The appellant had made an error in relation to the designation of the pursuers. The identity and designation of the pursuers was a matter which was, or ought to have been, within his knowledge and the knowledge of those representing him.”

The appeal was accordingly refused.