Anonymized Summary of Opinion

Factual and Procedural Background

This is an appeal from a decision refusing a reponing note in an eviction action. The action was brought by the landlords ("Plaintiff") against the tenant company ("Company A") seeking a declarator of irritancy of a lease and removal of the tenant from commercial premises on The City. The lease was dated 17 and 18 August 2020, specified an annual rent of £13,000 payable monthly, and it was averred that by January 2025 rent arrears amounted to £6,052.92.

The action was warranted on 9 April 2025 and intimation was effected by first-class recorded delivery post. No notice of intention to defend (NID) or pleadings in defence were lodged, and the Plaintiffs moved for decree. Decree in absence was pronounced on 27 May 2025. Company A lodged a reponing note on 12 June 2025, asserting (among other things) lack of knowledge of the action by the company's director, non-receipt of the court documents, ongoing negotiations with the Plaintiffs, and that the true debt was likely lower due to prior payments, a donation, and two months' waived payments. A hearing on the reponing note took place on 17 July 2025, at which the sheriff refused the reponing note.

Legal Issues Presented

1. Whether the sheriff's refusal of the reponing note was a sound exercise of discretion.
2. Whether a reponing note may be amended or a different case promoted during the appeal process.
3. Whether the amended factual and legal case advanced on appeal (including alleged personal bar, waiver, and delay) would, if admitted, constitute a stateable defence justifying reponing.
4. Whether the reponing party had provided a sufficient explanation for failure to appear and had shown a stateable defence required by reponing procedure.

Arguments of the Parties

Appellant's Arguments

• The company's director had no knowledge of the action and did not receive the documents said to have been served; the recorded-delivery tracking number was later confirmed as "not valid" by Royal Mail.
• The parties had been negotiating and the appellant did not expect legal action; the principal debt "if any, ought to be much lower."
• There had been a third-party donation of £369 (March 2020), two months' payments had been waived, and a payment of £1,137.49 was made in March 2025; at a meeting on 13 May 2025 the Plaintiffs demanded an "inflated sum."
• On appeal the appellant advanced, for the first time, a substantive defence based on personal bar, waiver and delay: the Plaintiffs accepted reduced or partial payments over periods (allegedly accepting rent for 15 months from February 2021 to April 2022 and full payments until May 2024), and the appellant exercised a contractual right to apply part of the deposit to rent, meaning arrears should be reduced or extinguished.

Plaintiff's (Respondents') Arguments

• The sheriff accepted that the appellant met the first element (an explanation for non-appearance) and a challenge to the recorded-delivery evidence did not rebut any presumption of service; in any event the decision rested on absence of a stateable defence.
• Clause 11 of the lease entitled the landlord to irritate the lease if any sums were in arrears for 21 days after the due date; no waiver, acquiescence or personal bar had been established and the reponing note did not properly plead such defences.
• Application of the deposit to rent left arrears outstanding; eviction had already occurred and possession had passed to the Plaintiffs.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Forbes v Johnstone (1995 SC 220)	Reponing is a discretionary remedy and the sheriff's decision is amenable to appeal only if it is one no reasonable sheriff could have taken.	The court applied the principle of deference to the sheriff's discretion and concluded there was no basis to disturb the sheriff's refusal of reponing.
Ratty v Hughes (1996 SCLR 160)	A defender seeking reponing must "tell the whole story" to the sheriff; an appeal is not an opportunity to present a more convincing explanation or a more stateable defence.	The court relied on this authority to refuse the appellant permission effectively to promote a new or improved case on appeal rather than in the original reponing note.
Johnston v Dewart (1992 SLT 286)	On appeal from refusal of reponing the appellate court will recognise only that an error could be rectified; limited scope to accept new grounds.	The court noted that the present appeal did not found on any such error and therefore was not a competent vehicle to introduce a new case.
Macphail, Sheriff Court Practice (4th ed., 2022), para 7.28–7.30	Practice guidance that reponing must be sought before full implementation of a decree, and that a reponing note must present the defender's case fully at first instance.	The court used the practice guidance to explain that the decree had been implemented (possession passed) rendering reponing incompetent, and that reponing is a singular discretionary remedy requiring a complete initial presentation.

Court's Reasoning and Analysis

The court structured its reasoning around three main questions identified in the appeal: (i) whether the sheriff's decision was sound; (ii) whether a reponing note could be amended or supplemented on appeal; and (iii) whether, even if amended, the new material would justify granting reponing.

On the first question the court emphasised the discretionary nature of reponing: an appellate court will only interfere if the sheriff's decision was one which no reasonable sheriff could have made (Forbes v Johnstone). The sheriff had applied the established two-part test for reponing: (a) a satisfactory explanation for failure to appear, and (b) a stateable defence. The sheriff accepted the explanation for non-appearance (despite finding it insubstantial), so the decision turned on whether the reponing note disclosed a stateable defence.

The court analysed the lease clause relied on by the Plaintiffs (Clause 11), which permitted the landlord to terminate the lease if any rent or other sum due was in arrears for 21 days after the due date. The reponing note pleaded matters (donation, waived payments, some payments made) that, as the sheriff found, could at best reduce but did not negate the existence of arrears that had been outstanding for the required 21-day period. The sheriff therefore correctly concluded there was no stateable defence within the terms of the action (irritancy for non-payment).

On the second question (amendment on appeal) the court gave three reasons why the appellant's attempt to rely on new material on appeal was incompetent:

• Implementation: The decree had been executed and possession had passed to the Plaintiffs before the appeal. Reponing is competent only prior to full implementation of a decree (Ordinary Court Rule 8.1(1) and Macphail), so the appeal was incompetent as a matter of law because it came too late.
• Nature of reponing: Reponing is a singular, discretionary process in which the defender must present the whole case to the sheriff; an appeal is a review of discretion, not a chance to present a more persuasive or different case (Ratty v Hughes; Johnston v Dewart).
• Amendment powers: There is no rule empowering amendment of a reponing note on appeal. The court observed that the rules governing amendment (OCR 18.2 and Chapter 17 of the Act of Sederunt (Sheriff Appeal Court) Rules 2021) do not confer a power to amend a reponing note to introduce a new case, and so the appellant could not use the grounds of appeal to bypass the rules and introduce new defences.

On the third question the court considered the substance of the new material (alleged waiver, acquiescence, personal bar, and timing of payments). Even accepting the new facts as pleaded on appeal, the court found they did not establish a stateable defence: gaps in payments shown on bank statements and the fact that acceptance of rent payments, without more, does not constitute waiver or acquiescence. The court emphasised that a stateable case must be asserted in at least a minimal coherent form; it cannot be left to inference or possibility. Thus, even if admitted, the new material would not satisfy the test for reponing.

Holding and Implications

APPEAL REFUSED

The appeal against refusal of the reponing note was dismissed. The court held that:

• The sheriff's refusal of the reponing note was a defensible exercise of discretion because the reponing note did not disclose a stateable defence to the eviction action under Clause 11 of the lease (21-day arrears rule).
• The appellant could not competently introduce a different or expanded case on appeal; reponing requires the defender to present the whole case to the sheriff initially and amendment or supplementation on appeal is not permitted in the manner attempted.
• Even if the new material were admitted, it would not amount to a stateable defence sufficient to justify reponing.

Direct consequences for the parties: decree of irritancy and removal was extracted and executed; possession passed to the Plaintiffs and the lease and occupancy have ended. The appellant was ordered to pay the respondents' (Plaintiffs') expenses of the appeal, as taxed. The decision does not create a new broad precedent changing the law of reponing; it applies established authorities and practice to the facts of this case.

Note: This summary is strictly confined to the content and reasoning contained in the provided opinion and does not add or infer facts beyond that material.