Reponing after Implement Is Incompetent and Reponing Notes Cannot Be Amended on Appeal: Sheriff Appeal Court in Mostafa & Ors v Abo Tamer Ltd

Citation: [2025] SAC (Civ) 37 (EDI-A378-25)

Court: Sheriff Appeal Court (Civil), Scotland

Judge: Sheriff Principal N A Ross

Date: 6 November 2025

Introduction

This appeal arose from a commercial landlord–tenant dispute concerning lease irritancy for non-payment of rent. The landlords, Kaswar Mostafa, Karim Alsfazli and Khaled Ahmed Alobid (pursuers and respondents), had obtained decree in absence for declarator of irritancy and removing against the tenant company, Abo Tamer Limited (defender and appellant), in respect of shop premises on Dalry Road, Edinburgh. The lease, dated 17 and 18 August 2020, carried an annual rent of £13,000 payable monthly. By January 2025, arrears were averred at £6,052.92.

After service by first class recorded delivery, no notice of intention to defend or defences were lodged. Decree in absence followed on 27 May 2025. The tenant tendered a reponing note on 12 June 2025, claiming non-receipt of the court papers and disputing the level of arrears. The sheriff refused the reponing note on 17 July 2025, holding that no stateable defence had been shown, though he was prepared to excuse the failure to appear.

On appeal, Abo Tamer Limited sought to advance fresh factual material and new legal defences (personal bar, waiver, and delay) and argued that the Royal Mail tracking number was “not valid”. By then, however, the decree had been extracted and executed; eviction had occurred and possession had passed to the landlords.

The Sheriff Appeal Court’s decision lays down a stringent procedural message: reponing is a narrow, discretionary remedy that must be properly pled at first instance and—critically—must be sought before implement of the decree. The Court also clarifies that a reponing note cannot be amended or bolstered on appeal and that acceptance of rent alone does not establish waiver or personal bar to defeat a clear irritancy clause where there are further arrears.

Summary of the Judgment

The Sheriff Appeal Court refused the appeal. The Court upheld the sheriff’s refusal to repone, for the following core reasons:

Discretion properly exercised: The sheriff had correctly approached the two-stage reponing test—excusable non-appearance and a stateable defence—and reasonably concluded that no stateable defence was presented on the pleadings. Given the lease’s clause 11 (irritancy if any rent is unpaid for 21 days after due date), the tenant’s assertions could only potentially limit—not meet—the arrears.
Incompetency due to implement: Reponing must be sought “before implement in full of a decree in absence.” Here, the decree had been implemented: removing had been executed and possession had passed. The appeal was therefore incompetent.
No new case on appeal / no amendment power: A defender seeking to be reponed must “tell the whole story” to the sheriff. Appeal is a review of discretion, not a chance to present a better or different case. There is no power to amend a reponing note on appeal; grounds of appeal cannot be used to introduce fresh defences.
Even on new material, no stateable defence: Acceptance of rent does not of itself amount to waiver or acquiescence. The bank statements showed further gaps in payment in late 2024 and early 2025; thus any purported “historic” default theory failed. The tenant had not pled a coherent, fact-specific waiver/personal bar/delay case capable of meeting clause 11.

Expenses of the appeal were awarded against the appellant.

Analysis

Precedents and Authorities Cited

Forbes v Johnstone 1995 SC 220 (IH)
The Inner House authority underscores that appellate intervention in discretionary decisions is limited. An appeal will only succeed if the decision is one that no reasonable sheriff could have reached or if there was an error in the exercise of discretion. The Sheriff Appeal Court applied this standard and held the sheriff’s decision was plainly within the range of reasonable responses given the absence of a stateable defence to a straightforward irritancy claim.
Ratty v Hughes 1996 SCLR 160 (Sh. Principal Risk)
Ratty articulates the discipline of reponing practice: “a defender who seeks to be reponed must tell the whole story to the sheriff.” Appeals from refusal of a reponing note review the exercise of discretion; they are not an opportunity to run a new or “improved” case. Sheriff Principal Ross squarely endorsed Ratty, rejecting the tenant’s attempt to introduce new defences (personal bar, waiver, delay) via the grounds of appeal and late productions.
Johnston v Dewart 1992 SLT 286
The Inner House took a restrictive approach to reponing on appeal, recognising scope only for correcting error. This judgment follows that line, emphasising that the reponing process cannot be transformed on appeal into a fresh, liberalised forum for new pleadings.
Macphail, Sheriff Court Practice (4th ed. 2022), paras 7.28 and 7.30
Macphail is cited for two key propositions: (i) reponing must be “before implement in full of a decree in absence” (para 7.28); and (ii) reponing is a discretionary remedy where the reponing party comes as a supplicant and must prepare the note carefully (para 7.30). The Court used these to ground both the competency finding and the insistence on rigorous first-instance presentation.
Ordinary Cause Rules and Sheriff Appeal Court Rules
– OCR 8.1(1): reponing requires application “before implement in full of a decree in absence.” Once the decree has been executed in full, the door to reponing closes.
– OCR 8.1(5): no appeal is available to a pursuer if recall is granted—an illustration of reponing’s singular, bespoke character.
– OCR 18.2: regulates amendment in ordinary causes but confers no power to amend a reponing note.
– Act of Sederunt (Sheriff Appeal Court) Rules 2021, ch 17: allows for amendment of pleadings or certain specified documents on appeal; there is no express power to amend a reponing note. The Court held that parties cannot bypass the rules by using the appeal grounds as a vehicle for new matter.

Legal Reasoning

The Court approached the appeal in four steps.

Was the sheriff’s refusal to repone a reasonable exercise of discretion?
Yes. The sheriff accepted, generously, that the defender’s bare assertion of non-receipt could excuse failure to appear. But the decisive second limb—existence of a stateable defence—was absent. The reponing note did not dispute that part of the rent had been unpaid for 21 days post-due date, a triggering condition for irritancy under clause 11. Complaints of an “inflated” demand, reference to a donation, two months’ waived rent, or a single overpayment did not amount to a defence to the irritancy claim; at most, they might reduce the arrears quantum. The sheriff therefore acted impeccably in refusing reponing.
Did implementation of the decree render the appeal incompetent?
Yes. Reponing is available only before implement in full of the decree in absence. Here, removing had been executed; possession had passed to the landlords. There was “nothing left to be done” to implement the decision. The appeal was therefore incompetent in law under OCR 8.1(1) as understood in light of Macphail 7.28.
Could the appellant amend or augment the reponing note on appeal?
No. Relying on Ratty v Hughes and the nature of reponing as a singular, discretionary remedy, the Court held that appeal is not a platform for a better explanation or a more statable defence. There is no power to amend a reponing note under OCR 18.2 or under the Sheriff Appeal Court Rules 2021 ch 17, and parties cannot manufacture such a power by inserting new material into the grounds of appeal. Johnston v Dewart supports only limited correction of error, which was not this case.
Even if the new material were considered, was there a stateable defence?
No. Acceptance of rent, without more, does not constitute waiver or acquiescence. The bank statements lodged showed further gaps in payments (25 November 2024 to 7 January 2025; and 22 January to 21 March 2025). Any waiver/personal bar/delay case requires coherent analysis and facts showing that the landlord’s conduct is inconsistent with reliance on irritancy and that no continuing defaults occurred. The appellant’s material did not meet that threshold and, crucially, no fully articulated case was pled. A “stateable” defence must be stated; it cannot be inferred or left to possibility.

Impact

The judgment crystallises three practical rules of significant importance for Scottish civil procedure and commercial leasing practice:

Strict temporal limit on reponing: If decree in absence has been implemented in full (e.g., the removing has been executed and possession delivered), a reponing application—or an appeal against its refusal—is incompetent. Defenders must act with urgency. If implement has occurred, the proper remedy may have to be a separate action of reduction, not reponing.
No second bite at the cherry: A reponing note must articulate, at first instance, both a credible excuse for non-appearance and a stateable defence to the action. On appeal, the court reviews the sheriff’s exercise of discretion on what was before him; new facts, new productions, and new defences are out of bounds. This will constrain litigants—especially lay-represented parties—from attempting to “fix” an inadequate reponing note at the appeal stage.
Waiver/acquiescence defences in irritancy require precision: Simply receiving rent is not enough to plead waiver or personal bar where the lease allows irritancy for arrears persisting beyond 21 days. Defenders must demonstrate a coherent factual matrix (e.g., clear landlord conduct inconsistent with exercising irritancy, reliance to detriment, and—often—absence of further defaults) to overcome a strict irritancy clause. This judgment underscores that historic indulgence will not immunise against irritancy if subsequent arrears occur.

For landlords, the case reinforces confidence in relying on clear irritancy provisions where arrears persist beyond the stipulated period. For tenants, it highlights the urgent need to engage procedurally (lodge NID/defences) and, failing that, to prepare a comprehensive reponing note promptly—before implement—and to plead any waiver/personal bar theory with full and coherent particulars.

Complex Concepts Simplified

Reponing (recall of decree in absence): A discretionary mechanism allowing a defender who failed to appear to ask the court to recall (undo) the decree entered against them in absence. Success depends on two elements: (1) a reasonable explanation for not appearing; and (2) a “stateable defence” to the original action. It must be sought before the decree is fully implemented.
Implement of a decree: Carrying out the decree’s orders to completion (e.g., evicting the tenant and delivering possession). If a decree has been fully implemented, reponing is no longer available.
Stateable defence: A defence with enough factual and legal substance to be arguable in law; it meets the claim on its merits (it does more than quibble about amounts or raise irrelevancies).
Irritancy (in leases): The landlord’s right to terminate a lease upon specified breaches (here, rent in arrears for 21 days after the due date). Modern commercial leases often provide for “forthwith” termination once the condition is met.
Personal bar (akin to estoppel): Prevents a party from asserting a right where their words or conduct led the other party reasonably to believe the right would not be enforced, and the other party relied on that to their detriment.
Waiver: A voluntary relinquishment of a known right, inferred from clear and unequivocal conduct inconsistent with the right. Acceptance of rent can in some circumstances support waiver, but not automatically—especially where there are later defaults.
Acquiescence: Knowing inaction or delay that, combined with other facts, may make it inequitable to enforce a right. Like waiver and personal bar, it is intensely fact-sensitive and not presumed from rent acceptance alone.
Discretionary decision on appeal: Appellate courts are slow to interfere with discretionary judgments. They will intervene only if the first-instance decision was one no reasonable sheriff could reach, or if the sheriff erred in law or principle.

Conclusion

Mostafa & Ors v Abo Tamer Ltd is a clear reaffirmation of the strict architecture of reponing practice in Scotland. First, reponing must be sought before a decree in absence is implemented; if execution is complete, reponing (and appeals against refusal) are incompetent. Second, the reponing note is not a draft to be perfected on appeal: the defender must “tell the whole story” at first instance. There is no power to amend a reponing note on appeal, and grounds of appeal cannot be used to smuggle in new factual or legal material. Third, on the merits, acceptance of rent is not, without more, waiver or acquiescence sufficient to defeat a clear irritancy provision—especially where later arrears are shown.

The decision thus has immediate procedural and substantive implications. Procedurally, it compels robust, timely, and comprehensive reponing notes. Substantively, it underscores the potency of well-drafted irritancy clauses and the evidential discipline required to mount personal bar/waiver defences. For practitioners and litigants alike, the case is a cautionary tale: delay and under-pleading in reponing are fatal, and appeals will not rescue an inadequate reponing note once decree has been implemented.