Sheriff Appeal Court rules sheriff correct to refuse reponing note in undefended action for shop tenant removal

About this case:

• Citation:
  [2025] SAC (Civ) 37
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal N A Ross

Abo Tamer Ltd appealed a decision in an action raised by pursuers Kaswar Mostafa, Karim Alsfazli and Khaled Alobid seeking irritancy of a lease and their removal from premises on Dalry Road in Edinburgh, asserting that a reponing note it lodged with the sheriff should have been accepted based on the presence of a stateable defence. The pursuers and respondents argued that the sheriff was correct to refuse the note, and no relevant defence had been stated.

The appeal was heard by Sheriff Principal Nigel Ross, with a lay representative appearing for the appellants.

New material evidence

The parties’ lease was entered into in August 2020, with an annual rent of £13,000 payable in monthly instalments. By January 2025, the rent was in arrears by £6,052.92, and therefore the respondents sought to irritate the lease. The action was duly warranted on 9 April 2025, but no Notice of Intention to Defend was lodged by the appellants and decree in absence followed on 27 May 2025.

In the appellants’ reponing note, it stated that the appellant’s director had no knowledge of the action and had not received the documents served. The parties had been in negotiation, and the appellant did not anticipate any court action. The reponing note narrated that the principal debt balance ought to be lower based on the alleged waiver of two months of payment and a sum paid by the appellant in March 2020.

The sheriff who heard the reponing note refused it on the basis that the appellant’s explanation for its failure to appear was not strong, consisting of a bare assertion that a document had not been received. More significantly, he further considered that the appellant had not demonstrated a stateable defence, noting that clause 11 of the lease stated that if any part of the rent was in arrears for 21 days after the due date for court payment, the landlord was entitled to bring the lease to an end.

It was submitted for the appellant that new and material evidence had come to light since the hearing of the note, including that the tracking number for the action’s initial warrant had been confirmed by Royal Mail as “not valid” and untraceable. A defence of personal bar was asserted based on the respondents having accepted rent payments from February 2021 to April 2022. The respondents submitted that no such defence had been relevantly described in the reponing note.

No coherent analysis

In his decision, Sheriff Principal Ross began by noting that the appellant had already been removed from the premises, adding: “A decision as to whether to allow a defender to be reponed is discretionary in nature. An appeal could only overturn the sheriff’s decision if it was a decision which no reasonable sheriff could take in the circumstances. Any appeal has to address not only the merits, but the discretionary process which led to the decision. In the present case, the appellant could not succeed on either basis.”

He continued: “The reponing note set out a defence which included statements that: the debt balance ‘ought to be much lower’; that the respondents had unreasonably demanded ‘an inflated sum’; and averments of two months’ waived rent and one minor overpayment of £1,137.49, against a monthly rental payment of £1,083.33, payable in advance. These points were not defences to the action of eviction – they were capable only of limiting, but not meeting, the arrears of rent payment.”

Considering whether, had the action not been too late, the defences presented would have succeeded, the Sheriff Principal said: “Even if the amended grounds of appeal were otherwise competent and allowed, the additional material would not justify allowing the reponing note. On the failure to appear, the appellant claimed new evidence which cast doubt on the reliability of the recorded delivery service. That is irrelevant because the sheriff accepted reasonable excuse for non-appearance.”

He concluded: “Acceptance of rent payments does not by itself amount to waiver or acquiescence. No coherent analysis was attempted to found these fact-dependent pleas. It is not enough that, with careful analysis, a case might have been identified. The existence of a stateable case cannot be left to assumption, or inference, or possibility. For a stateable case to exist, it requires at minimum that a case has been stated. Accordingly, even if the new material were to be admitted, it would not amount to a stateable case, and the appeal must fail for that reason also.”

The appeal was therefore refused on both grounds, with the appellant liable to the respondent for expenses.