Sheriff Appeal Court (Civil) Opinions
You are here:
BAILII >>
Databases >>
Sheriff Appeal Court (Civil) Opinions >>
Farzana Ashraf against Richard Dennis AiB & another (Sheriff Appeal Court Civil) [2024] SACCIV 45 (07 November 2024)
URL: http://www.bailii.org/scot/cases/ScotSAC/Civ/2024/2024sacciv45.html
Cite as:
[2024] SACCIV 45
[
New search]
[
Printable PDF version]
[
Help]
SHERIFF APPEAL COURT
[2024] SAC (Civ) 45
EDI-B231-16
Sheriff Principal A Y Anwar KC (Hon)
Sheriff Principal C Dowdalls KC
Appeal Sheriff R D M Fife
OPINION OF THE COURT
delivered by SHERIFF PRINCIPAL A Y ANWAR KC (HON)
in the appeal in the cause
FARZANA ASHRAF
Pursuer and Appellant
against
RICHARD DENNIS, THE ACCOUNTANT IN BANKRUPTCY
Defender and First Respondent
and
BILL CLEGHORN as ADMINISTRATOR
UNDER SECTION 128 OF THE PROCEEDS OF CRIME ACT 2002
Party Minuter and Second Respondent
Pursuer and Appellant: Murdoch, sol adv; Murnin McCluskey
Defender and First Respondent: Heaney; Harper Macleod LLP
Party Minuter and Second Respondent: Manson; Morton Fraser MacRoberts LLP
7 November 2024
Introduction
[1]
This summary application is the latest in a number of unsuccessful attempts by the
appellant, Ms Ashraf, to forge a path to her ultimate aim, namely, to obtain the real right of
2
ownership to Flat 1/1, 82 Polworth Gardens, Edinburgh ("the property"). Ms Ashraf has
spent 22 years in pursuit of that aim.
[2]
While seeking to make progress in her attempt to obtain the real right, she has faced
many legal hurdles. One such hurdle arose on 8 March 2023; on that date, the sheriff
refused to allow receipt of Ms Ashraf's minute of amendment in this summary application.
As a consequence, decree of dismissal was granted on 6 December 2023. Ms Ashraf has
appealed against the interlocutor of 6 December 2023 and in doing so has sought to bring
under review the interlocutor of 8 March 2023. It is accepted by the parties to this appeal
that, unless receipt of the minute of amendment is allowed, Ms Ashraf's summary
application is irrelevant and the sheriff was correct to dismiss it.
[3]
The question for this court is whether the sheriff erred in his refusal to allow
Ms Ashraf's minute of amendment to be received on 8 March 2023? We consider the sheriff
did not for the reasons we explain below.
Background
[4]
Mohammed Younas acquired title to the property in November 1990. Mr Younas is
Ms Ashraf's brother. On 7 September 1993, Mr Younas was sequestrated; the first
respondent, the Accountant in Bankruptcy ("AiB") was appointed as his permanent trustee
and was vested with his estate, including the property.
[5]
In April 2001, the AiB invited Mr Younas to buy the equity in the property from him;
the property was burdened with a standard security. Following Mr Younas's conviction and
sentence to 10 years' imprisonment for two offences of being concerned in the supply of
drugs in September 2001, a confiscation order was made against him. In 2002, Ms Ashraf
and her sister advised the AiB that they, rather than Mr Younas, wished to purchase the
3
equity in the property. On 3 October 2002, missives were concluded. £25,000 was paid to
the AiB in two instalments in July 2002 and June 2003. The original intention was that the
AiB would, in return for payment, grant a disposition of the property to Ms Ashraf and her
sister who would by deed of variation take over responsibility for the sums secured against
the property. On 21 October 2003, for reasons which have not been explained to this court,
the solicitor acting for Ms Ashraf and her sister wrote to the AiB in the following terms:
"...our clients, Farzana and Ruksana Ashraf have decided that they do not wish the
title of the property to be transferred to their names.
The title of the property is therefore to remain in the name of their brother
Mohammed Younas and once you have paid the dividend to his creditors and
obtained your own discharge, we shall be obliged by you issuing your usual letter of
comfort to ourselves."
[6]
The AiB was discharged as Mr Younas's trustee on 9 September 2004. Subsequently,
on 23 August 2005, the AiB sent a letter to Mr Younas which noted that no disposition or
other conveyance transferring Mr Younas's interest in the property had been executed by
the AiB. Paragraph 5 of the letter was in the following terms:
"the Accountant by execution of these presents confirms that she has abandoned and
renounced and hereby renounces and abandons any claim to Mr Younas' share and
interest or former interest in and to [the property]."
The AiB suggested that Mr Younas may wish to keep the letter in a safe place:
"as, when you eventually dispose of the property, either through a future sale or
through your will, evidence of title may be required and, in the absence of a
disposition, difficulties may arise."
[7]
In September 2012, Mr Younas was again convicted in the High Court of being
concerned in the supply of drugs. The Crown sought a confiscation order under the
Proceeds of Crime Act 2002. Following a determination hearing, which involved a
competing claim by Ms Ashraf to the property, the Lord Ordinary determined on
4
11 November 2014 that the property belonged to Mr Younas (HM Advocate v Younas, Ashraf
& Ashraf [2014] HCJ 123 at para [52]). There was no basis upon which the property could be
exempted from the confiscation order. The second respondent, Mr Cleghorn, was appointed
as administrator in terms of section 128(2) of the 2002 Act to take possession of, manage,
realise and otherwise deal with Mr Younas' property on 8 March 2016.
[8]
In correspondence prior to the issuing of the confiscation order, those acting for
Ms Ashraf sought to persuade the AiB to issue a disposition in accordance with the missives.
In a response dated 11 April 2014, the AiB advised that they had been discharged on
9 September 2004; however, they would have no objection to title to the property being
transferred to Ms Ashraf and her sister if a sheriff were to sign a disposition transferring the
property.
[9]
Further correspondence followed. By email of 3 December 2015, the AiB advised
that they "would have no locus to now sign a disposition which would now require to be
signed by Mr Younas." On 14 December 2015, in a further email, the AiB explained that
they had now been advised that the missives remained valid between the parties. They
would sign a disposition under the original conditions set in 2002; however, they advised
that before doing so, they would need to be provided with the following: (i) an interlocutor
re-appointing the AiB as trustee in the sequestration of Mr Younas; (ii) a deed of variation
for the standard security over the property; and (iii) a signed letter from Mr Younas
consenting to the transfer. The AiB also reiterated that, alternatively, Mr Younas could
simply sign the disposition in favour of Ms Ashraf.
[10]
Following receipt of that letter, Ms Ashraf lodged this summary application at
Edinburgh Sheriff Court in February 2016. When raised, the summary application contained
a single crave seeking only the re-appointment of the AiB as Mr Younas' trustee. The
5
summary application was sisted on 7 July 2016 pending determination of proceedings before
the Court of Session.
[11]
Ms Ashraf sought to vary the confiscation order issued on 8 March 2016 to exclude
the property from its ambit. The petition failed before the Lord Ordinary (HM Advocate v
Younas & Ashraf 2018 SLT 227). A reclaiming motion was refused by the Second Division
(HM Advocate v Younas & Ashraf 2018 SLT 1303). An application to appeal to the Supreme
Court was also refused.
[12]
The sist of this summary application was recalled on 16 September 2022. Following
further procedure, Ms Ashraf's newly instructed agent moved to amend the summary
application by adding further craves: (i) to ordain the AiB to implement the missives by
executing a disposition; (ii) alternatively, to ordain the AiB to issue a Letter of Comfort; and
(iii) a crave for the expenses of the summary application. That was opposed by both the AiB
and Mr Cleghorn primarily on the grounds that any obligations incumbent upon the AiB in
terms of the missives having prescribed, the proposed amendment was irrelevant.
[13]
There are two further noteworthy matters. Firstly, the second respondent,
Mr Cleghorn, has taken steps to enforce the confiscation order of 8 March 2016. He raised an
action for possession against Ms Ashraf and Mr Younas seeking to eject them from the
property. Decree of ejection was granted on 12 September 2023. The appeal against that
decision was refused by this court on 10 May 2024. Mr Cleghorn has not enforced that
decree pending the resolution of this appeal. Secondly, this court determined at a hearing
on competency on 22 May 2024 that Ms Ashraf's attempt to appeal the interlocutor of
8 March 2023, via a challenge against the later interlocutor of 6 December 2023, was
competency, Ms Ashraf had sought to lodge a minute of amendment in identical terms to
6
that lodged at first instance. Sheriff Principal Wade KC refused to allow that amendment,
noting that it would be inappropriate to do so when this appeal was concerned with the
very issue of whether the minute of amendment ought to have been allowed by the sheriff.
We now proceed to consider that issue.
The sheriff's interlocutor of 8 March 2023
[14]
It was argued by both respondents that the obligation in the missives had prescribed,
under long negative prescription, on 3 October 2022. Ms Ashraf contended that was not the
case; instead, she submitted that the letter dated 11 April 2014 amounted to a "relevant
acknowledgement" from the AiB, for the purposes of section 10(1)(b) of the Prescription and
Limitation (Scotland) Act 1973.
[15]
The sheriff was not persuaded. He determined that the letter of 11 April 2024
acknowledged that there had been an agreement under the missives and the AiB had
provided an undertaking not to challenge Ms Ashraf's attempt to obtain a disposition or
thereafter challenge her title. The letter stated a number of facts. The letter was not an
unequivocal admission that the obligations in the missives continued to subsist or that the
AiB considered they were binding.
[16]
Accordingly, in the exercise of his discretion, the sheriff refused to allow receipt of
the minute of amendment. As Sheriff Principal Wade KC has already noted, the
consequence of that decision was that Ms Ashraf's application to re-appoint the AiB
remained extant but without any evident purpose (Ashraf v Accountant in Bankruptcy 2024
SLT (SAC) 181 at para [7]). Ultimately, the summary application was dismissed on
6 December 2023.
7
Legislation
[17]
The statutory provisions of the 1973 Act relevant to his appeal, provide as follows:
"7.-- Extinction of obligations by prescriptive periods of twenty years.
(1) If, after the date when any obligation to which this section applies has become
enforceable, the obligation has subsisted for a continuous period of twenty
years--
(a) without any relevant claim having been made in relation to the
obligation, and
(b) without the subsistence of the obligation having been relevantly
acknowledged,
then as from the expiration of that period the obligation shall be extinguished:
...
10.-- Relevant acknowledgment for purposes of sections 6 and 7.
(1) The subsistence of an obligation shall be regarded for the purposes of sections 6,
7 and 8A of this Act as having been relevantly acknowledged if, and only if,
either of the following conditions is satisfied, namely--
(a) that there has been such performance by or on behalf of the debtor
towards implement of the obligation as clearly indicates that the obligation
still subsists;
(b) that there has been made by or on behalf of the debtor to the creditor
or his agent an unequivocal written admission clearly acknowledging that
the obligation still subsists."
Submissions for the appellant
[18]
Ms Ashraf was represented by Mr Murdoch, solicitor advocate. It was submitted
that the sheriff erred in concluding that no relevant acknowledgement had been made
within the prescriptive period in terms of section 10(1)(b). On a proper construction, the
letter dated 11 April 2014 from the AiB clearly acknowledged an ongoing entitlement for
Ms Ashraf to insist on the transfer of the title to the property into her name.
[19]
Esto the sheriff had not erred as to his interpretation of the letter dated 11 April 2014,
Ms Ashraf contended that the email dated 14 December 2015 contained a relevant
8
acknowledgement such that prescription was interrupted. It was accepted that the sheriff
had not been addressed on the contents of that email. Mr Murdoch submitted that, as the
email was referred to in the pleadings and had been lodged as a production, the sheriff
ought to have had regard to it nevertheless and, if necessary, ought to have convened a
further hearing to discuss its import. He invited this court to exercise its discretion to
consider this email in the interests of justice.
[20]
Finally, the purchase price was paid to the AiB in 2003. Acceptance by the AiB of
that sum, it was argued, also amounted to a relevant acknowledgment for the purposes of
section 10(1)(b). It was acknowledged that this argument too had not been advanced before
the sheriff.
[21]
In the course of submissions, the court queried how Ms Ashraf proposed to take
matters forward, in the event that her appeal was successful. Mr Murdoch accepted that if
the minute of amendment were allowed and matters returned to the sheriff court with
Ms Ashraf obtaining the orders she sought in this application, that would create a conflict
between her real right to the property and the confiscation order. Further litigation would
be inevitable to resolve the parties' separate rights.
Submissions for the first respondent
[22]
Receipt of Ms Ashraf's minute of amendment was a matter of discretion for the
sheriff. The sheriff's decision could only be revisited if he: (i) had failed to instruct himself
properly on the law to be applied to the task; (ii) took account of an irrelevant matter;
(iii) failed to take account of relevant matters; or (iv) had come to a decision that no other
reasonable sheriff would have reached. No such error had been made by the sheriff.
9
[23]
Ms Ashraf alleged a failure by the sheriff to consider the email of 14 December 2015;
however, it had not been referred to before him. The same was true of the argument
regarding the payments of 3 June 2003. Consideration of either point on appeal was a
matter of discretion for this court; however, the interests of justice favoured the respondents
and the new arguments should not be allowed. Ms Ashraf had raised the summary
application 8 years ago; the matters which she sought to rely upon now were available to
her when the application was raised in 2016. No reason was given for the delay. The
respondents were prejudiced by the lateness of the motion to amend.
[24]
Even if the minute of amendment was allowed, the AiB could not grant a disposition
of the property. The AiB had been discharged on 9 September 2004; more pertinently, they
had renounced any interest they had in the property on 23 August 2005. The property was
re-vested in Mr Younas. The AiB could not comply with the declarator being sought in the
proposed amended crave. While that argument was not specifically before the sheriff, the
sheriff's note indicated he was alive to the issue.
[25]
If the court allowed receipt of the minute of amendment, the case would revert back
to the sheriff and the amendment procedure would take its course. As and when Ms Ashraf
moved for the minute and answers to be allowed, the AiB would again challenge that
motion.
Submissions for the second respondent
[26]
Counsel adopted the submissions of the AiB. An appellate court should only
interfere with a discretionary decision in a limited set of circumstances (Macphail, Sheriff
Court Practice (4th ed.) at paragraph 18.159). An appeal against a discretionary decision
should not be allowed merely because the appellate court would have exercised the
10
discretion in a different way (Macphail op cit.). One of the limited bases upon which an
appellate court can proceed to review a discretionary decision is where there was a
"misdirection in law" when the discretion was exercised (Macphail op cit at
paragraph 18.160). This appeared to be the basis upon which Ms Ashraf's appeal
proceeded.
[27]
When considering whether or not to review and overturn a discretionary decision
involving an evaluative judgment based upon the application of legal principle, an appellate
court should be concerned to identify that there is an obvious error in law and not simply a
matter in relation to which there could reasonably be a difference of opinion as to how the
law should be applied (cf. Arbitration Appeal No.1 of 2019 2019 SLT 1309 at paras [14] - [15]).
[28]
The sheriff had been correct to hold the letter dated 11 April 2014 did not amount to
a relevant acknowledgement to interrupt prescription; there was nothing in that letter
which satisfied section 10(1)(b) of the 1973 Act. As such, the sheriff had not been
misdirected in law. The attempt to rely upon: (i) the email dated 14 December 2015; and
(ii) the payments made by Ms Ashraf to the AiB in June 2003, ought to be rejected for four
reasons: (i) the sheriff could not be said to have misdirected himself when he had not been
invited or required to consider matters which had only come to be relied upon during the
course of the appeal; (ii) this court had already considered whether Ms Ashraf could rely
upon the email of 14 December 2015, as the email was the foundation for the minute of
amendment that Ms Ashraf invited Sheriff Principal Wade KC to receive at the competency
hearing; she had refused to do so (Ashraf v Accountant in Bankruptcy 2024 SLT (SAC) 181 at
paras [23] - [28]). If the interests of justice did not call for receipt of the minute of
amendment during the appeal then the same result ought to apply at the end of this appeal;
(iii) the proposition that the email of 14 December 2015 was a relevant acknowledgment was
11
irrelevant or, at least, of doubtful relevancy. The terms of the email are not clear and
unequivocal in recognising the subsistence of the obligation contained in the missives
of 2002; and (iv) Ms Ashraf's attempt to rely on the payments to the AiB was misconceived.
That was not performance towards implement of the obligation identified in the proposed
amended crave 2. In order to amount to a relevant acknowledgment for the purposes of
section 10(1)(b), the conduct must be "clearly referable" to the particular obligation which
the pursuer seeks to enforce (Agro Invest Overseas Ltd v Stewart Milne Group Ltd &
others [2019] BLR 187 at paras [135] - [136]). If the payment was made pursuant to an
obligation in the missives it was the obligation incumbent upon Ms Ashraf and her sister. It
was certainly not performance of an obligation to deliver a disposition.
[29]
In any event, the proposed craves in the minute of amendment were inept as the AiB
cannot perform the orders sought. Counsel submitted that position was put before the
sheriff and could be found in the second respondent's pleadings at Answer 3.
[30]
Counsel moved for expenses to be awarded on the solicitor and client, client paying
scale on the basis that Ms Ashraf's conduct was prolonging the litigation, even though it
would not secure her a practical outcome.
Decision
[31]
It is trite to observe that no party has a right to amend their pleadings. Amendment
is entirely a matter for the discretion of the court. As a general rule, amendment of
pleadings will be allowed if it is necessary for the purpose of determining the real question
in controversy between the parties and if allowing it would not result in injustice to the
other party. In the exercise of its discretion, the court will have regard to the stage which the
action has reached, the procedural history, whether there has been a delay in seeking the
12
amendment and any explanation for such delay, the nature of the amendment, the prejudice
to the other party and any conditions which may be imposed to address that prejudice
(Macphail, Sheriff Court Practice, 4th ed, paragraph 10.14).
[32]
An appellate court will only interfere with a discretionary decision on one or more of
the conventional grounds for doing so: a failure to exercise a discretion, unreasonableness, a
misdirection or error of law, the taking into account of irrelevant material or omission of
relevant material or the decision is "plainly wrong". The very nature of a discretionary
decision is that different minds may reach a different result. The question, as framed by
Lord Fraser of Tullybelton in G v G (Minors: Custody Appeal) [1985] 1 WLR 647 at page 652
(and approved by the Inner House in McTear v Imperial Tobacco Ltd 1996 SC 514 at
pages 516 - 517) is whether the first instance judge "has exceeded the generous ambit within
which a reasonable disagreement is possible."
[33]
The issue of prescription had been the primary focus of the submissions before the
sheriff. It was not disputed that unless the obligations under the missives had been
"relevantly acknowledged" they had been extinguished by the operation of long negative
prescription in terms of section 7 of the 1973 Act rendering the proposed amendment
irrelevant. Ms Ashraf invited this court to conclude that the sheriff erred in the proper
construction of the terms of the letter of 11 April 2014; he ought to have determined that the
letter constituted an unequivocal written admission clearly acknowledging the obligation, in
terms of section 10(1)(b) of the 1973 Act.
[34]
We do not agree that the sheriff has misdirected himself. In the letter of 11 April
2014, the AiB acknowledged that an agreement had been reached for Ms Ashraf and her
sister to purchase the property and that, sums having been paid, the AiB had no further
interest in the property. The AiB notes that they would have no objection to the transfer of
13
the title "by the sheriff" and will not seek to challenge title. The letter amounts to no more
than a summary of the relevant background and a statement by the AiB that they would not
become involved any further in matters related to the property; they conveyed their
decision to take a passive role. It does not amount, on any reading, to an unequivocal
written admission that clearly acknowledges any subsisting positive obligation to deliver a
disposition in terms of the missives. Quite the contrary. It is instructive to note that the
letter was issued during an exchange of correspondence with Ms Ashraf in which she
explicitly sought the delivery of a disposition by the AiB. The AiB did not agree to provide
one nor acknowledge that they were under any obligation to do so. Indeed, the words
"disposition" and "missives" are nowhere to be found in the letter of 11 April 2014.
[35]
Nor do we accept that the sheriff erred by failing to take account of a material
consideration, namely the email of 14 December 2015. It was candidly accepted by
Mr Murdoch that there had been a failure to refer the sheriff to this letter. This was
described as an oversight. We are not persuaded that in adversarial proceedings, and
particularly those in which parties are represented, there is an obligation upon the sheriff to
identify, and invite parties to address him on, material matters which are not advanced in
submissions. Mr Murdoch was unable to refer us to any authority to persuade us otherwise.
While we note that there are very brief averments in Ms Ashraf's pleadings relating to the
email of 14 December 2015, the sheriff properly addressed the arguments before him,
focussing on the matters the parties chose to advance.
[36]
We were invited to consider the question of whether to allow the minute of
amendment de novo having regard to the terms of the email of 14 December 2015. The
exercise of the discretionary power of an appellate court to have regard to additional
material which was not before the sheriff is informed by the circumstances of each case. The
14
question to be addressed is whether justice requires regard to be had to the additional
material. It is important to note that the present dispute is one in a long history of
proceedings spanning at least 12 years involving Ms Ashraf and the question of her rights to
the property. The email of 14 December 2015 cannot properly be described as additional
material, nor did it become available to the parties after the hearing before the sheriff. On
the contrary, the email was referred to in pleadings but not relied upon before the sheriff in
submissions. The only explanation offered was that there had been an oversight. Ms Ashraf
and those advising her were, or ought to have been, aware of the email of 14 December 2015
and of its relevance to the arguments advanced. The email was referred to by Ms Ashraf in
her evidence when she sought to vary the confiscation order (see HM Advocate v Younas &
Ashraf 2018 SLT 227 at para [9]). The email of 14 December 2015 prompted the raising of
these proceedings. In those circumstances, it is not in the interests of justice for this court to
consider the question of amendment of the pleadings de novo having regard to the terms of
the email of 14 December 2015.
[37]
If we had been persuaded to consider the matter de novo in light of the email of
14 December 2015, we would have refused to allow Ms Ashraf's minute of amendment to be
received. Firstly, the proposed amendment is of doubtful relevancy, the application has
poor prospects of success and the orders sought may be incapable of being implemented.
The email of 14 December 2015 attached conditions to the granting of a disposition by the
AiB which included (i) a requirement for an interlocutor reappointing him; and (ii) a signed
letter from Mr Younas consenting to the transfer. Neither an interlocutor nor Mr Younas'
consent had been necessary when the missives were entered into. The email was not an
unequivocal written admission clearly acknowledging that the obligation to deliver a
disposition still subsisted, but rather an expression of a willingness to provide a disposition
15
if certain pre-conditions, which were dependant on the actions of those other than the AiB,
were met. Even if the email was capable of interrupting prescription, the AiB maintained
their position that, having renounced and abandoned their interest in the property by letter
dated 23 August 2005 at the request of Ms Ashraf and her sister, they were no longer in a
position to deliver a disposition; the property had re-vested in Mr Younas and the craves
sought to be introduced by way of amendment were incapable of satisfaction. No argument
was advanced on behalf of Ms Ashraf to persuade us that the letter of 23 August 2005 was
not fatal to the orders she now sought. Secondly, we note that these proceedings were
raised in 2016. We have not been provided with any satisfactory explanation as to why this
minute of amendment was tendered 8 years later nor why the proceedings were sisted for
6 years. Thirdly, we note that notwithstanding an awareness of an intention to lodge this
application, or an awareness that these proceedings remained extant, both the Outer House
and the Inner House refused Ms Ashraf's attempts to exclude the property from the
confiscation orders granted in relation to Mr Younas. Mr Cleghorn is now in lawful control
of the property by order of the Court of Session dated 8 March 2016 and he has obtained
decree of ejection. The sheriff and the Sheriff Appeal Court had been aware of this
application when dealing with the action for ejection and removal. There is therefore,
considerable force in the submission made on behalf of Mr Cleghorn that the outcome of this
application is academic. Fourthly, Ms Ashraf and her sister were aware that there was "a
mechanism through which she could take title without involving further the Accountant in
Bankruptcy" (see HM Advocate v Younas & Ashraf 2018 SLT 227 at para [37]); Mr Younas
could grant the disposition sought. Ms Ashraf, however, took a conscious and deliberate
decision not to seek transfer of title from the AiB (see HM Advocate v Younas, Ashraf &
Ashraf [2014] HCJ 123 at para [49]). She also took a conscious and deliberate decision
16
between 2004 when the AiB was discharged, and 2016 when the second confiscation order
was granted, not to have the missives implemented by having a disposition signed by her
brother. Lady Wise described this application as "too little too late" (see HM Advocate v
Younas & Ashraf 2018 SLT 227 at para [45]). We agree with that analysis. The remedy lay in
Ms Ashraf's hands and she has, for reasons not explained, refused to exercise it.
[38]
Finally, it was submitted that the payment of the purchase price in 2003 by
Ms Ashraf and her sister amounted to a relevant acknowledgment for the purposes of
section 10(1)(a) of the 1973 Act. That argument was not advanced before the sheriff. It is not
foreshadowed in the pleadings. For the reasons we have explained in para [35],
Mr Murdoch was correct not to have pressed this submission with much conviction. In any
event, this submission is entirely misconceived.
[39]
Section 10(1)(a) requires that there has been such performance by or on behalf of the
debtor towards implement of the obligation as clearly indicates that the obligation still
subsists. The particular obligation which Ms Ashraf seeks to enforce is the obligation on the
part of the AiB to deliver a disposition. A relevant acknowledgement in terms of section 10
must be clearly referable to that obligation, for it to be effective to interrupt prescription
(Agro (supra) at paras [135] - [136]). Plainly, payment of the purchase price was an obligation
incumbent upon Ms Ashraf and her sister in terms of the missives. It is irrelevant for the
purposes of considering performance by the AiB towards implement of the obligation to
deliver a disposition.
[40]
We are not persuaded that the sheriff misdirected himself in law, failed to take
account of material factors, or otherwise erred in the exercise of his discretion in refusing to
allow the minute of amendment to be received. Accordingly, we shall refuse the appeal. It
17
was agreed that if the minute of amendment were not allowed to be received, Ms Ashraf's
application lacked any purpose, was irrelevant and ought to be dismissed.
[41]
Parties were agreed that expenses should follow success. Accordingly, we shall
grant the expenses of the appeal in favour of the first and second respondents. Ms Ashraf
sought the expenses of the earlier hearing on competency. She had successfully opposed an
attempt to have the appeal dismissed as incompetent. We agree that it is appropriate that
any award of expenses should reflect that success.
[42]
We are not persuaded that expenses should be granted on a solicitor and client, client
paying basis. Viewing this application in isolation, rather than in the context of the history
of related proceedings, we do not consider there to be a sufficient basis for concluding that
the manner in which it has been conducted has been unreasonable.
Disposal
[43]
We refuse the appeal and adhere to the sheriffs' interlocutors dated 8 March 2023
and 6 December 2023. We find the appellant liable to the first and second respondents for
the expenses of the appeal. We find the first and second respondents liable to the appellant
for the expenses of the competency hearing. We refuse the second respondent's motion for
the expenses to be awarded on the solicitor and client, client paying scale.
