Sheriff Appeal Court rules permission required to appeal decision to refuse sequestration recall petition

About this case:

• Citation:
  [2026] SAC (Civ) 11
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Gillian A Wade KC

Appellant Gwen Gall was sequestrated at Dunfermline Sheriff Court on 4 October 2022 and was refused recall of that sequestration in October 2025. She argued that, as the relevant rules of court were silent on the issue of appeal in this matter, there was no express rule prohibiting such an appeal as there was for other provisions of the Bankruptcy (Scotland) Act 2016.

The appeal was heard by Sheriff Principal Gillian Wade KC, with the appellant appearing as a party litigant and the respondent represented by Hunter, solicitor. Rennie, solicitor, appeared for the accountant in bankruptcy.

Turned on the finality

On 29 July 2025, the appellant lodged a petition for recall of her sequestration in terms of sections 29 and 30 of the Bankruptcy (Scotland) Act 2016. This came before the sheriff in Dunfermline and was refused on 29 October 2025. On 26 November 2025, the appellant sought to lodge an appeal against that interlocutor, and on receipt of the note the clerk referred to the procedural appeal sheriff on the matter of competency.

The matter was referred on the basis that the appeal did not fall into any of the categories specified in Rule 10.1 of the Act of Sederunt (Sheriff Court Bankruptcy Rules) 2016, which on their face did not provide for an appeal against a decision to refuse to recall the original award of sequestration. However, the wording of the Rule did not expressly preclude appeals other than those listed in paragraphs 10.1(1)(a) through (d), therefore a question arose as to whether other types of appeal could be competent.

It was submitted by the appellant that such an appeal could be competent because it disposed of a petition for recall and thus was a final decision at first instance, appealable to the Sheriff Appeal Court. She noted that the AIB did not challenge the competency of the appeal, which she maintained turned on the finality of the interlocutor of October 2025.

For the respondent it was acknowledged that the 2016 Act was silent on the issue, and anecdotally no other case could be identified where a decision of the sheriff under section 30 had been subject to appeal. However, other sections of the act such as section 113, concerning the power of the trustee to sell the debtor’s family home, were also silent on the question of appeal and had been considered by the Sheriff Appeal Court. The case of AIB v Brooks (2020) was raised as an example of an appeal against a decision to grant section 113 consent, however that appeal was refused on its merits rather than on any matter of competency.

No permission sought

In her decision, Sheriff Principal Wade said of the governing legislation: “There is no provision that a decision of a sheriff is final if the application for recall proceeds by way of petition to the sheriff directly under section 30. Accordingly, the question of whether there is a right of appeal from such a decision must necessarily fall to be determined by reference to section 110 of the Courts Reform (Scotland) Act 2014, the provisions of which do not affect any other right of appeal to the Sheriff Appeal Court under any other enactment (section 110(4)).”

She added: “The decision to refuse to recall an award of sequestration clearly does not fall within the list at section 110(1)(b). [20] The question of finality of such a decision is discussed at Macphail, Sheriff Court Practice, 4th edition, paragraph 26.199 of which states: ‘Subject to any provision for finality of the sheriff’s decision, the general principle is that decisions of the sheriff in bankruptcy applications to the first instance jurisdiction of the sheriff are not final judgments which dispose of the subject matter of the cause as the sequestration continues after disposal of the application; accordingly, the sheriff’s decision on these applications may only be appealed with leave of the sheriff [citing Ingle’s Trustee v Ingle (2016)]’.”

Considering the design of the relevant provisions, Sheriff Principal Wade said: “The Scottish Parliament appears to have expressly prohibited an appeal against the granting of an order for sequestration, but to have tacitly permitted an appeal in relation to an attempt to recall such an order. That being so a sequestrated individual could immediately seek recall of the grant of sequestration and then appeal thus circumventing the express provisions of the legislation. However, that perceived anomaly is unlikely to arise in practice because of the requirement to obtain leave to appeal.”

She concluded: “An appeal from the sheriff to the Sheriff Appeal Court following an application in a bankruptcy falls within the category of cases referred to in section 110(2) of the 2014 Act, and permission of the sheriff is required before the decision can be competently appealed. No permission was sought in this case and accordingly the appeal falls to be dismissed as incompetent. In any event, the nature of the decision to refuse or grant sequestration being one in the discretion of the sheriff at first instance the circumstances in which leave should be granted are likely to be exceptional.”

The appeal was therefore dismissed as incompetent.