Sheriff Appeal Court remits non-patrimonial loss case raised by executrix-dative after son’s death to Court of Session

About this case:

• Citation:
  [2026] SAC (Civ) 30
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Aisha Anwar

Pursuer and respondent Martha Magaisa, the executrix-dative of the late Tanyaradza Magaisa, sought damages of £200,000 for the loss suffered by her son as a result of his detention, although he had not himself raised any proceedings during his lifetime, and raised the motion to remit. The lord advocate, appearing as the appellant on behalf of the home secretary, sought decree of absolvitor on the basis that the respondent, as executrix-dative, had no title to sue for non-patrimonial loss, a plea which was initially repelled by the sheriff.

The appeal was heard by Sheriffs Principal Aisha Anwar, Nigel Ross, and Andrew Miller. Shabbir, advocate, provided written representations for the pursuer and respondent and Iridag, advocate, for the defender and appellant.

Attention of the Supreme Court

Following his conviction for a number of criminal offences after entering the UK in 2004, the deceased was detained by order of the home secretary between 11 October 2018 and 8 January 2020. He was released on immigration bail and subsequently died on 30 September 2023, with no suggestion that his death was linked to his detention.

The sheriff repelled the appellant’s plea in law challenging the respondent’s title to sue and fixed a proof before answer. In their written submissions, the appellant challenged the sheriff’s decision on three grounds, two of which were relied upon in the respondent’s motion for remit of the appeal to the Court of Session in terms of section 112(2) of the Courts Reform (Scotland) Act 2014. These were that the sheriff erred in law in finding that an executor had title to bring an action de novo for delictual non-patrimonial losses not provided for in terms of the Damages (Scotland) Act 2011.

For the respondent it was submitted that the effect of the appellant’s argument would be to significantly restrict the rights of an executor. This issue was likely to attract the attention of the Supreme Court in the future, and the consequences could extent to any delictual claim in which the deceased had suffered a non-patrimonial loss but had not raised proceedings prior to death. Such claims could include breaches of privacy, nuisance, breach of confidence, and data protection breaches.

In opposition to the motion to remit, the appellant submitted that the point in issue was a narrow and focused issue of statutory interpretation, and the case was concerned with largely private interests within a particular parcel, in this instance of law enforcement and immigration. Further delay in this case, in which both parties were funded by the public purse, would incur additional unnecessary expense, and no prejudice would be caused by the Sheriff Appeal Court hearing the appeal.

No binding authority

Delivering the opinion of the court, Sheriff Principal Anwar said of the requirements for a successful section 112 motion: “This court requires to be satisfied that the appeal raises a complex or novel point of law in terms of section 112(2) of the 2014 Act. Useful factors for assessing the complexity or novelty of a point of law include whether it may be said that there is a real likelihood that the issue may attract the attention of the Supreme Court at some later stage, or that there are conflicting authorities, or that the case raises a point of wider interest which will have general application. That issue is to be resolved by reference to the particular legal issues set out in the grounds of appeal.”

She continued: “The respondent submitted that at common law, an executor acquired all vested rights of the deceased, including claims for non-patrimonial loss. The appellant accepted that an executor has the right to pursue a claim for patrimonial loss, but no similar ability to pursue a claim for non-patrimonial loss if proceedings had not already been raised by the deceased prior to his death. Neither party was able to found on any authority which examined either the common law position or provided guidance as to the correct approach to section 2 of the 2011 Act.”

Considering that a novel point did arise from the appeal, the Sheriff Principal explained: “It is not merely a question of statutory interpretation. The appellant submits no common law principle exists which confers upon an executor title to sue for non-patrimonial losses de novo, and if such a principle did exist, it has been replaced and restricted by section 2 of the 2011 Act. The respondent submits that there is such a common law principle and that it is unaffected by the 2011 Act. We accept that the test in section 112(2) of the 2014 Act is met.”

She concluded: “The appeal will have consequences beyond the interests and rights of the parties to the present case. There is no binding authority on the issue. We accept that some additional delay and cost may be occasioned in remitting the appeal to the Court of Session. That however is not a matter to which we attach significant weight in the circumstances of this case. Both parties are already represented by counsel and would be so represented whether the appeal is heard by this court or by the Court of Session. In terms of delay, that consideration requires to be balanced against the expediency of a decision from the Inner House which may obviate the need for proof or a further appeal on the same grounds following a proof.”

The motion to remit was therefore granted.