Sheriff Appeal Court rules ‘additional sum’ motion in counterclaim incompetent

Advocate Bilaal Shabbir appeared for the successful respondent in in Colin Gillan v Mark Sinclair [2025] SAC (Civ) 35, instructed by Stephen Forsyth in the dispute resolution team at Gilson Gray LLP.

The appeal raised two preliminary issues of competency: (i) whether failure to lodge an account of expenses within four months of final judgment precluded any award; and (ii) whether a motion for an “additional sum” under Chapter 27A was premature where taxation had not yet occurred.

The Sheriff Appeal Court held that the appeal was incompetent. The “additional sum” motion required to be lodged no later than the granting of “decree of expenses”. That phrase was ambiguous as to whether it referred to the initial decree for expenses or the later decree following taxation. The court reaffirmed its earlier interpretation in Gray v Cape t/a Briggate Investments 2023 SLT (SAC) 139, that it referred to post-taxation decerniture.

However, while a motion could, in principle, be lodged before taxation, no award could competently be made without a lodged and taxed account of expenses, since the “additional sum” under OCR 27A.9 must be calculated by reference to the fees allowed on taxation. In the absence of an account or taxation, the mechanism for calculating the award was defeated, rendering the appeal academic.

This judgment provides helpful clarification on the interaction between motions for an “additional sum” and the taxation process under Chapter 27A.