Scottish Sheriff Court Decisions

DUMFRIES SHERIFF COURT
Sheriff Principal B A Lockhart	F320/11   JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART   in causa   DUMFRIES & GALLOWAY COUNCIL   Petitioners and Appellants   against   JAMES DUFF   Defender and Respondent

 

Appellants: C Watt, Solicitor, Dumfries

Respondent: Party

 

 

DUMFRIES: 4 October 2012

The sheriff, having resumed consideration of the cause allows the appeal and recalls the sheriff's interlocutor of 10 November 2011 complained of; having considered the productions and being satisfied that the petition has been presented in accordance with the provisions of Bankruptcy (Scotland) Act 1985 and that proper citation has been made to the respondent and the requirements of the Bankruptcy (Scotland) Act 1985 relating to apparent insolvency have been fulfilled, sequestrates the estate now belonging of which shall hereafter belong to the respondent James Duff before the date of the respondent's discharge, and declares the same to belong to the respondent's creditors for the purposes of the said Act; appoints the Accountant in Bankruptcy, 1 Pennyburn Road, Kilwinning KA13 6SA to be trustee; declares the whole estate of the said James Duff as at 4 October 2012 is vested in and belongs to said trustee for the benefit of the said respondent's creditors; finds the respondent liable to the appellants in the expenses of the petition and the appeal as taxed; allows an account thereof to be given in and remits same, when lodged, to the Auditor of Court to tax and to report.

 

 

 

NOTE

[1] The history of this appeal, leading up to my decision on 17 July 2012 to continue the appeal hearing until 10 September 2012, is set out in the note attached to my interlocutor of 17 July 2012. There is one error in my note. I refer to the case of Duff v Shearer in paragraph 3 of that note. The sheriff court reference is B56/11 and not B345.

[2] A petition for the sequestration of the respondent at the instance of the appellants with supporting papers was placed before the sheriff on 22 July 2011. He issued an interlocutor in the following terms:

"The sheriff, having considered the foregoing petition, together with the productions, grants warrant to cite the defender by serving a copy of the petition and of this warrant and appoints the debtor, if so advised, to appear within the Sheriff Court at Dumfries on the 18^th day of August 2011 at 10am to show cause why sequestration should not be awarded."

 

[3] The case duly called before the sheriff on 18 August 2011. At the behest of the sheriff, the case further called before him on 1 September 2011, 6 October 2011 and 10 November 2011. On the latest date the sheriff refused sequestration, dismissed the petition and found no expenses due to or by either party. The sheriff issued written notes dated 26 August 2011, 16 September 2011, 21 October 2011 and finally 10 November 2011.

[4] A detailed scrutiny of the four very lengthy notes reveals that eventually the only ground on which sequestration was refused was that the appellants had not satisfied the sheriff that they had complied with the provisions of section 5(6) as required by section 12(3)(c) of the Bankruptcy (Scotland) Act 1985.

[5] Section 5/6 of the 1985 Act provides: "The petitioner shall, on the day the petition for sequestration is presented under this section, send a copy of the petition to the Accountant in Bankruptcy."

Section 12(3)(c) of the 1985 provides:

"... (3) where, on a petition for sequestration presented by a creditor or a trustee acting under a trust deed, the sheriff is satisfied ...

 

(c) that the provisions of sub-section 6 of this Act have been complied with ...

he shall ... award sequestration forthwith."

 

[6] The sheriff in his note states, inter alia:

"[10] I examined the court papers in this case and could not find any letter from the petitioners sending the petition to the court or a copy of it to the AIB on a particular date. The petition itself is not date stamped by the sheriff clerk to show when it may have been presented to the court.

 

[11] I signed the warrant for citation on 22 July 2011. I recollect the petitioners had not originally lodged the required form 12 with the petition. This in all likelihood resulted in a delay in me signing the warrant while they lodged the form 12, and it is therefore likely the petition was presented to the court before 22 July 2011.

 

[12] I am not sure why sufficient evidence of the date of presenting the petition to the court and a copy of the petition to the AIB on the same day was not lodged by the petitioners at the hearing on 6 October 2011. The email from AIB now seems to me to refer to the date she received the copy petition.

 

[13] In any event as there was no evidence at all submitted by the petitioners on 6 October 2011 as to the date on which the petition was presented to the court. It could not be ascertained the copy petition was sent to the AIB on the same day the petition was presented to the court as required by section 5(6).

 

[14] The petitioners were therefore given by me a further opportunity at the hearing on 10 November 2011 to satisfy me they had complied with section 5(6) and Mr Duff an opportunity to address me if their failure to satisfy this requirement on 6 October was a reason why sequestration could not competently be awarded in terms of section 16(3A)(a) (of the 1985 Act).

 

[15] Although the hearing on 10 November 2011 was to be limited to points 2(b) of Mr Duff's objections that the petitioners did not inform the AIB of the proceedings at the proper time, I also allowed him to object to the competency of the petition on the ground it had not been date stamped by the sheriff clerk's office as I thought the point arose from my discussion of the proceedings in my note number 3.

 

[16] On this latter point, I appear to have misunderstood Mr Watt for when I asked him to comment on this point he indicated perhaps the petitioners ought to rethink their position in relation to the present petition. I took that as a concession the petition should be dismissed and refused sequestration partly for that reason.

 

[17] Mr Duff's point is that the proceedings are null under section 12(3A)(a) because the initiating writ was not date stamped. My concern about that was that it affected the competency of the proceedings but, in the absence of a date stamp, there was no evidence ex facie the petition as to when it was presented to the court, although I do understand there to be a date stamp on the warrant ...

 

[18] Because I thought Mr Watt was conceding the point, I did not find it necessary to reach a judicial decision on this objection and I therefore consider it would not be appropriate for me to do so, so this may form one of the issues of the appeal.

 

[19] The petitioners in advance of the hearing on 10 November 2011, and in line with my earlier view as to the best evidence on this point, lodged copy letters to both the court and AIB showing the petition was sent to the court and copy petition to the AIB on 15 July 2011.

 

[20] Prima facie that evidence satisfied the provisions of section 5(6) as it established the copy petition was sent to the AIB on the same day as the petition was presented to the court.

 

[21] Mr Duff, however, was not prepared to accept this evidence. He thought there was something 'not just right about it'. He objected to its receipt at such a late stage.

 

[22] Section 12(3)(c) of the 1985 Act provides that a sheriff may award sequestration where satisfied the provisions of section 5(6) have been complied with.

 

[23] I do not think the petitioners had manufactured evidence to prove compliance with this section, but justice has not only to be done. It must be seen to be done.

 

[24] Mr Duff was suspicious that there had been no compliance with sections 5(6).

 

[25] I could not find sufficient evidence in the court papers to satisfy me on compliance with section 5(6). The petitioners had been given an opportunity to produce evidence of compliance at the hearing on 6 October 2011. They had not in the event done so. The email from AIB was ambiguous and seemed now to relate to the date of receipt of the copy petition by her, rather than when it was sent to her by the petitioners.

 

[26] The petitioners are acting on legal advice, their solicitors ought reasonably to have known the best evidence themselves of compliance with section 5(6), yet they did not lodge it at the hearing on 6 October 2011 when requested by the court to produce evidence of compliance with the subsection.

 

[27] While they were given further opportunity to demonstrate compliance with section 5(6) at the hearing on 10 November 2011, Mr Duff was equally given the right to state any objections and he did so.

 

[28] In all these circumstances therefore the petitioners had not satisfied me they had complied with the provisions of section 5(6) as required by section 12(3)(c) of the 1985 Act and I accordingly refused the petition for that reason as well as my understanding Mr Watt was conceding the petition was incompetent as it lacked a date stamp from the court.

 

[29] I did not however refuse the petition under section 12(3)(A)(a) as I did not think the petitioners' failure to lodge the evidence of compliance with section 5(6) on 6 October 2011 was in itself a proper ground upon which sequestration could not competently be granted.

 

[30] Instead, this was a factor I took into account in relation to section 12(3)(c) in considering whether I was satisfied the provisions of section 5(6) had been complied with by the petitioners."

 

[7] It is against the sheriff's decision of 10 November 2011 to refuse sequestration that this appeal is taken. The note of appeal is in the following terms:

"The petitioner appeals to the sheriff principal on the following grounds; having regard to the terms of the Bankruptcy (Scotland) Act 1985 and the 2008 Act of Sederunt (Sheriff Court Bankruptcy Rules 2008) the sheriff erred in law in refusing to grant sequestration on the basis that all the requirements for sequestration had not been satisfied."

 

I heard parties on the appeal in Dumfries Sheriff Court on 10 September 2012.

 

Submissions for the Appellants
[8] It was submitted on behalf of the appellants that the sheriff had erred in law in holding that the appellants had failed to provide sufficient evidence to demonstrate their compliance with section 5(6) of the Bankruptcy (Scotland) Act 1985. In his note of 16 September 2011 at para 9 the sheriff stated:

"There is no requirement on a creditor petitioning for sequestration to lodge a copy of the letter to the AIB confirming compliance with section 5(6) although some adopt that practice. However, it should not be difficult for the petitioners to prove compliance with section 5(6) and I shall therefore require them to do so when the case calls again on 6 October 2011 in order to ascertain whether section 12(3)(c) applies so as to require the court to refuse sequestration on this specific ground."

 

Although it was conceded that the documents were not produced until 10 November 2011, I was referred to the appellants' second inventory of productions which contained two covering letters from the appellants to the Accountant in Bankruptcy and to Dumfries Sheriff Court both dated 15 July 2011:-

(i)    The letter to the Accountant in Bankruptcy was in the following terms:

"DUMFRIES & GALLOWAY COUNCIL AGAINST MR JAMES DUFF, 29 MOSSVALE, LOCHMABEN, DUMFRIESSHIRE DG11 1QB

 

I refer to the above and enclose a copy of the petition for sequestration by Dumfries & Galloway Council. I trust this is all the information you require at present however, if you have any questions please do not hesitate to contact Mrs McIntyre on the above noted number.

 

Yours faithfully

B M KEARNEY

Head of Legal Services"

 

(ii)   And to Dumfries Sheriff Court:

 

"DUMFRIES & GALLOWAY COUNCIL AGAINST JAMES DUFF

 

I refer to the above and now enclose sequestration proceeding petition together with the relevant accompanying documentation and an E200 in the sum of £95. I look forward to hearing from you in due course with the appropriate warrant.

 

Yours faithfully

B M KEARNEY"

 

There was also lodged an email from Barbara Souter, a case officer of the Accountant in Bankruptcy, dated 23 September 2011 addressed to Christopher Watt, a solicitor of Dumfries & Galloway Council:

"I confirm we have received and registered the petition you sent on behalf of Dumfries & Galloway Council against James Duff, 29 Mossvale, Lochmaben, Dumfriesshire DG11 1QB on 18/07/11. I trust this is of assistance."

 

It was to be noted that the 15 July 2001 was a Friday and the Accountant in Bankruptcy was confirming receipt of the copy petition the following Monday.

[9] It was submitted that correspondence clearly demonstrated that a copy of the petition had been sent to the Accountant in Bankruptcy on 15 July 2012 and this had been received on 18 July 2012.

[10] The letter to Dumfries Sheriff Court which sent the petition to be lodged was of the same date. The sheriff had been concerned that the petition had not been date stamped. It was submitted there was no requirement for a petition, when lodged, to be date stamped. Rule 2 of the Schedule to the Act of Sederunt (Sheriff Court Bankruptcy Rules) 2008 sets out the obligations on a sheriff clerk on receipt of an application for sequestration as follows:

"On receipt of -

 

a. a petition for sequestration or

 

b. an application or appeal relating to an AIB sequestration

 

The sheriff clerk shall prepare a process folder which shall include an inventory of process.

 

3. The petition, application or appeal as the case may be and any production or part of process lodged shall be placed by the sheriff clerk in the process folder."

 

There was no requirement in the rules that the petition must be date stamped when it was lodged. The sheriff, in noticing this, had imposed a far greater burden than was considered necessary by those drafting the legislation. The sheriff himself stated that he recollected that the petitioners had not originally lodged the required form 12 with the petition. This would require to be intimated to them and the necessary form lodged. This would not doubt account for the delay in respect that the petition was not placed before him until 22 July.

[11] It was submitted on behalf of the appellants that they had demonstrated their compliance with the rules surrounding the petition. I was again referred to para 9 of the sheriff's note of September 2011: "There is no requirement on a creditor petitioning for sequestration to lodge a copy of the letter to the AIB confirming compliance with section 5(6) ..." He required the appellants to lodge the letter and this they did. In paragraph 23 the Sheriff stated that he did not think the petitioners had manufactured evidence. There were accordingly no grounds for the sheriff taking the view that the terms of section 5(6) of the 1985 Act had not been obtempered.

 

Submissions for the Respondent
[12] The respondent provided me with written submissions in the following terms:

"The defender/respondent moves the court for the dismissal of the petitioners petition for sequestration on 10 September 2012 on the following grounds:

 

'1. The sheriff at Dumfries dated 10 November 2011 dismissed the pursuer/appellant petition on serious discrepancies. The cause had first commenced on 18 July 2011.

 

2. The pursuer would not satisfy the court that they had complied with section 5(6) by informing the Accountant in Bankruptcy. The sheriff could find no evidence in the court papers to satisfy him on compliance with section 5(6). The petitioner was given an opportunity by the sheriff to produce evidence of compliance at the hearing on 6 October 2011 and had not done so.

 

3. The petitioner could not produce any letter sending the petition to the court or a copy of it to the Accountant in Bankruptcy on a particular date. The petition is not date stamped by the sheriff clerk.

 

4. The petition without a date stamped stamped by the sheriff clerk's office was illegal to have been served on the respondent by sheriff officer (Michael Clark) on 18 August 2011.

 

5. The sheriff's note dated 10 November 2011 will be founded upon and used in evidence.

 

6. On 10 November 2011 hearing before the sheriff, Mr Watt, solicitor for the petitioner informed the sheriff that the petition had been handed to Sheriff Kenneth Ross. That may explain the corruption in this case and why the petition had not had a date stamped by the sheriff clerk's office. Mr Ross had to declare jurisdiction with regards to the respondent.

 

The respondent has asked for investigation on numerous occasions but has been ignored. His request would have disclosed corruption by Brendon Kearney, Head of Legal Services (who was dismissed from his employment). It would disclose his connection with Kenneth Ross on 11 May 2012 and his conduct towards the respondent' ".

 

[13] In particular the respondent drew my attention to what the sheriff stated in paragraphs 10, 21, 25, 26 and 28 of his note, which I have recorded in full at para [6] hereof. I was asked to dismiss the appeal because of these discrepancies and uphold the sheriffs decision.

[14] If I was not prepared to dismiss the appeal, and was disposed to award sequestration, I was asked to sist the cause at this stage. It was conceded that the action which resulted in the decree for expenses which founded the sequestration proceedings was not the subject of any appeal to the sheriff principal or to the Court of Session. It was also conceded that the respondent's appeals in the case of Duff v Shearer (B56/11 Sh Ct ref and XA48/11 C of S ref) to the Court of Session and thereafter to the Supreme Court in London had been dismissed. This is the case where the point at issue was whether decree could be granted in a summary application following a debate. The respondent produced a letter which he had received from the clerk to the Inner House of the Court of Session which indicated that further procedure was taking place in two other appeals namely James Duff v Patrick Shearer (Sh Ct ref B345/11 and C of S ref XA139/11 and James Duff v Dumfries & Galloway Council Sh Ct ref A312/10 C of S ref XA71/12). I was invited by the respondent to sist the current sequestration proceedings. If he succeeded in these actions, he would be in a position to settle his indebtedness in the current action.

[15] Accordingly, the respondent's alternative position was that, if I was proposing to allow the appeal ,the cause should be sisted to await the outcome of these two cases.

 

Decision
[16] This appeal was continued by me on a number of occasions to allow the appeal in the case of Duff v Shearer (B56/11 Sh Ct ref and XA48/11 C of S ref) to be decided by the Inner House of the Court of Session. Although the decree which was the basis of the bankruptcy petition was not appealed by the respondent to either myself or the Court of Session, the point at issue in both cases was the same. I felt the interest of fairness required that I await the decision of the Inner House on the other case before proceeding with this appeal. The point was a short one, namely whether it was competent to grant decree at a debate in a summary application. The appeal was decided against the appellant in the Inner House of the Court of Session on 18 May 2012. The respondent then appealed to the Supreme Court in London. That appeal was refused by their Lordships on 19 July 2012. This appeal in respect of the sheriff's refusal of sequestration then proceeded before me.

[17] Having considered the submission which I have recorded above, I am of the view that the appeal should be allowed.

[18] As I understand the sheriff's four lengthy notes, he was satisfied that the appellants had obtempered the provisions of section 12(3)(a), (b), (d) and (e) of the 1985 Act. His only concern was with the terms of section 12(3)(c). He considered that the provisions of section 5(6) of the 1985 Act had not been complied with as he was not satisfied that the petitioners, on the day the petition for sequestration was presented to the court, sent a copy to the petition to the Accountant of Bankruptcy.

[19] The sheriff had before him copy letters from the appellants to the effect that the petition was sent to the sheriff court at Dumfries and a copy was sent to the Accountant in Bankruptcy on 15 July 2011, which was a Friday. The sheriff had before him an email from the Accountant in Bankruptcy which was in the following terms:

"Dear Mr Watt

 

I confirm we received and registered the petition you sent on behalf of Dumfries & Galloway Council against James Duff, 29 Mossvale, Lochmaben, Dumfriesshire DG11 1QB on 18/07/11. I trust this is of assistance.

 

Regards

BARBARA SOUTER/CASE OFFICER

Accountant in Bankruptcy"

 

The appellant's had accordingly successfully intimated a copy of the petition to the Accountant in Bankruptcy.

 

[20] Notwithstanding the fact that the principal petition was not date stamped, the sheriff, having considered the petition and accompanying productions, when they were placed before him on Friday 22 July 2011, signed the warrant to cite. The fact of the matter is that the sheriff, being the same sheriff who eventually refused to grant sequestration, did not consider that fact to be material as he signed the warrant. There is no requirement for the petition to be date stamped. It is clear that the copy petition to the Accountant in Bankruptcy was posted on Friday 15 July 2011 and was received the following Monday. The sheriff recollects (para 11 of his note of 10 November 2011) that the petitioners had not originally lodged the required form 12 with the petition. He stated: "This in all likelihood resulted in a delay in me signing the warrant while they lodged the form 12 and it is therefore likely the petition was presented to the court before 22 July 2011."

[21] At paragraph 23 of his note the sheriff states: "I did not think the petitioners had manufactured evidence to prove compliance with the section ..." That being the case, it would appear to me that the only proper conclusion should have been that the principal petition was sent to Dumfries Sheriff Court and a copy petition to the Accountant in Bankruptcy on Friday 15 July 2011. The copy petition was received by the Accountant in Bankruptcy on Monday 18 July 2011 as confirmed in their email. The sheriff does not dispute that the letters to Dumfries Sheriff Court with the petition and to the Accountant in Bankruptcy with a copy were sent on 15 July 2011. That is the only result of his finding that the petitioners had not manufactured evidence. As it is the principal petition must have been received at Dumfries Sheriff Court on or about Monday 18 July 2011. Thereafter the appellants' solicitors had to be contacted and required to arrange for the lodging of the form 12 which was omitted from the productions lodged with the original petition. When this was done, the petition was placed before the sheriff on Friday 22 July 2011. Further, the letter from the appellants sending the petition to Dumfries Sheriff Court of 15 July 2011, with which the sheriff takes no issue, confirms that the court dues of £95 were to be paid by enclosing the normal form E200.

[22] In my opinion there are no grounds for holding that there had not been compliance with the terms of section 5(6) of the 1985 Act. In my opinion the sheriff erred in the conclusion which he reached on the basis of the material before him.

[23] Moreover, a consideration of the current law on non-compliance with statutory provision is relevant in this case. This is set out in the case of Regina v Soneji and Another 2005 3 WLR 303 which dealt with the approach to time limits. The case considered the use of the word "shall" in respect of time limits and discussed the issue whether time limits should be considered "mandatory" or" directory". This is relevant in the present case where the petitioner is required "on the day the petition for sequestration is presented under this section" to send a copy of the petition to the Accountant in Bankruptcy. Even if it was the case that the petition was not sent to Dumfries Sheriff Court on 15 July 2011 when the copy petition was sent to the Accountant in Bankruptcy, it must have been sent a few days later. As the sheriff records, when the petition was lodged in court the petitioners had to be contacted and a form 12 lodged. After this had been done the petition was placed before the sheriff on 22 July 2011. In particular I refer to the speech of Lord Carswell at paragraph 61-68 he said:

"61. The distinction between mandatory and directory provisions, which was much discussed in judicial decisions over many years, has gone out of fashion and has been replaced as Lord Steyn has said, by a different analysis, directed to ascertaining what the legislature intended should happen if the provision in question was not fully observed. I do not seek to question the correctness of the altered approach to this, but I do feel that the principles inherent in the rejected dichotomy may in some cases offer assistance in the task of statutory construction.

 

62. It has long been appreciated at the essence of the search is the ascertainment of the intention of the legislature about the consequences of failure in a failure to observe the requirement contained in the provision in question ...

 

63. The traditional dichotomy between mandatory and directory provisions has been used as a convenient shorthand for a very long time, and, as in the case of many shorthand labels for concepts, those concerned with statutory interpretation may have tended to forget the object summarised by the useful labels. There is, however, some value still in the principles enshrined in the dichotomy, particularly that which relates to substantial performance.

 

64. I agree with your Lordships that Parliament did not intend confiscation proceedings to fail in all cases where the timetable contained in section 72(a) of the Criminal Justice Act 1988 was not observed ...

 

65. The traditional consequences of finding the provisions were merely directory was that substantial performance would constitute a sufficient compliance with the statutory requirement ... minor and insubstantial deviation from the requirements will not make the resulting proceedings invalid ...

 

66. The other avenue is by means of holding that if the time limit is not strictly observed the confiscation is nevertheless not invalidated. It is here that the doctrine of substantial performance may offer some assistance. I would not regard it as justified to extend the time limit indefinitely, for I do not think that Parliament would have so intended. Nor would it be sufficient to ask merely if it would be fair and reasonable to accept the validity of an action out of time. I would suggest that one should ask if there had been substantial observance of the time limit. What will constitute substantial performance would depend on the facts of each case, and it will always be necessary to consider whether any prejudice has been caused or injustice done by regarding the act done out of time as valid.

 

67. If one approaches the present case by the second avenue, I think that the answer will be the same. There was a small departure from the prescribed time and no prejudice was created or injustice done by regarding the confiscation order as valid. I am satisfied that this approach is not only consistent with the intention of Parliament but is a proper way to ensure that its intention is carried out."

 

[24] I also think it relevant to note that Lord Steyn at para 21 referred to the decision of the court in Project Sky Blue Inc v Australia Broadcasting Authority [1998] 194 CLR 355:

"A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision would be invalid. ... In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute'."

 

And at para 25 he concluded:

"Having reviewed the issue in sum detail ... the emphasis ought to be on the consequences of non-compliance, and posing the question further whether Parliament can fairly be taken to have intended total invalidity ..."

 

[25] In this case Parliament decreed in terms of section 5(6) that "the petition shall, on the day the petition for sequestration is presented under this section, sent a copy of the petition to the Accountant in Bankruptcy. One must ask what was the intention of Parliament in making such a provision. I consider that the intention of Parliament was that notice should be given to the Accountant in Bankruptcy that a petition was being presented to the court inviting the court to appoint the Accountant in Bankruptcy as trustee. It was proper that the Accountant in Bankruptcy should have notice prior to the petition coming before the sheriff that the services of the Accountant in Bankruptcy, as trustee, may be required in this particular case if the petition was granted. Appropriate preparations could then be made.

[26] In this case there is no doubt, because the fact is acknowledged, that the Accountant in Bankruptcy received notification that this petition was to be presented to the sheriff court and they received their copy on 18 July 2011. They would be aware that shortly thereafter they may be appointed as trustee at a hearing before the sheriff and an intimation of their appointment would come as no surprise. After the petition sent on 15 July 2011 to Dumfries Sheriff Court had been received and time had been taken to allow the necessary form 12 to be lodged thereafter came before the court before the sheriff on 22 July 2011.

[27] Even if there was no evidence that the petition was sent to the court on 15 July 2011, the petition was clearly lodged well before 22 July 2011 as the sheriff recalls delay while the form 10 was lodged. The Accountant in Bankruptcy had four days notice of the petition before it came before the sheriff. The purpose of the statutory provision had been fulfilled. There was no prejudice or injustice to any party. Strict application the precise terms of section 5(6) of the 1985 Act is not appropriate. There has been substantial performance of the statutory obligation as the Accountant in Bankruptcy have had in their possession a copy of the petition for four days before it was presented to the sheriff.

[28] There was a reference in the written submissions for the respondent to an intervention by Sheriff Ross. It was said that Mr Watt had handed the petition to Sheriff Ross. This was vigorously denied by Mr Watt at the appeal hearing before me. And there is no reference to such an issue by the sheriff who dealt with this petition. It is unnecessary in my view to pursue this issue. The fact of the matter is that the petition with its productions were before the sheriff on 22 July 2011 and on that date the Accountant in Bankruptcy had had a copy of the petition in their possession for a material time. In these circumstances I take the view that the appeal falls to be upheld and I should grant a sequestration.

[29] The respondent indicated to me that, if I were to take that view, I should not grant sequestration but should sist the cause. I have set out his submissions in paragraphs [13]

and [14] hereof. In my opinion there are no grounds for me to take that course. The decree on which the petition for sequestration was founded has not been appealed. The appellant has failed both before the Inner House in the Court of Session and in the Supreme Court in London in his appeal on a parallel case concerning the obtaining of a decree at a debate in a summary application. The remaining cases which are before the Court of Session at appeal have no relevance to this case. There are accordingly no grounds on which I could accede to the respondent's motion to have the present proceedings sisted.

[30] I have awarded the expenses of the petition and the appeal to the appellants.