Glasgow man who walked out of court during bank repossession proceedings loses appeal against sheriff’s grant of decree by default

About this case:

• Citation:
  [2023] SAC (Civ) 20
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Appeal Sheriff Andrew Cubie QC

Appellant Mohammed Aslam was the defender in an action raised in Glasgow Sheriff Court by the Royal Bank of Scotland seeking to recover possession of heritable property. He argued on appeal that the sheriff could not grant decree by default as he had appeared in court.

The appeal was heard by Appeal Sheriff Andrew Cubie. The appellant appeared as a party litigant while the respondent was represented by solicitors from Shoosmiths LLP.

Accusations of corruption

At a procedural hearing on 23 November 2022, six days in advance of the diet of debate, the appellant was told by the sheriff that he would need to provide hard copies of any document that he would rely upon in the diet of debate. Additionally, he was told that any alteration to the pleadings would need to be made by way of amendment with the court’s permission rather than by adjustment. Nonetheless, at the diet of debate the appellant sought to alter his pleadings by adjustment and sought to lodge productions he had not supplied in advance.

The respondent opposed the appellant’s attempts to alter his pleadings, which were refused by the sheriff as coming too late and being of doubtful relevance. The debate then continued. During the course of the bank’s submissions the sheriff raised the question of the reasonableness of the order sought. At this time, the appellant began to shout and swear, made accusations of corruption and racism, threatened to “torch” the property that was the subject of proceedings, and left the courtroom before the debate had concluded.

After he left, the sheriff found him in default and granted immediate extract. Mr Aslam submitted that the ordinary court rules did not apply in the circumstances of the case, so the sheriff did not have the power to grant decree by default. In any event, there was no default and even if there was immediate extract should not have been granted.

For the respondent it was submitted that the order made was an appropriate exercise of the sheriff’s discretion. While they agreed that the sheriff should not have granted immediate extract, immediate extract should be granted in the event that the appeal is refused now that notice had been given of their intention.

Oppositional reaction

In his decision, Appeal Sheriff Cubie observed: “There is no doubt that the sheriff had the power to grant decree by default. That is confirmed by the decision of the Inner House in the case of Bridging Loans Limited v Hutton (2018). The circumstances in that case were similar to the present appeal. It was a summary application for the recovery of possession of heritable property. The defence was that the order sought was not reasonable. The defender absented herself from a peremptory diet. The Inner House accepted the entitlement of the sheriff to grant decree by default in the circumstances.”

He continued: “Although Mr Aslam’s written submission make much of the sheriff’s reference to OCR rule 16 and the fact that it is not applicable in Summary Application procedure, it is not necessary for me to determine in the absence of detailed submission whether rule 16 applies. That is because the power to grant decree by default is in any event contained in the general power to make such order as the sheriff thinks fit for the progress of the application. I consider that any apparent error of expression in relation to basis on which the decision to grant decree by default was made is not such as to vitiate the order.”

Turning to whether there had been a default, the Appeal Sheriff said: “[Mr Aslam] argues that there was not so much a default as an overwhelmed, inexperienced party litigant reacting wrongly, but understandably, to the circumstances which arose at the hearing. I do not accept that characterisation; proceeding on the basis of the sheriff’s report there was a defiant, oppositional reaction to the sheriff’s conduct of the debate, culminating in the unilateral withdrawal by Mr Aslam from the proceedings, proceedings which he knew were not concluded and which were peremptory.”

He went on to say: “A party cannot simply chose to exit the proceedings because of dissatisfaction at the way matters are developing. His leaving was against a backdrop of his attempting to lodge adjustments, of a failure to provide hard copies of documents and recent previous attempts to discharge or adjourn proceedings. All of that was relevant context for the sheriff to assess the nature extent and timing of Mr Aslam’s behaviour.”

Refusing the appeal, Appeal Sheriff Cubie concluded: “There is no discernible error by the sheriff; there was a default, arising from actions when might on one view constitute contempt of court. The sheriff did not take into account anything irrelevant or exclude anything relevant. The decision was well within the exercise of his discretion; it is difficult to determine what else the sheriff could have done in the deliberate absence of Mr Aslam. The appeal must fail on the basis that Mr Aslam has failed to show that there is any basis for the appeal court to intervene.”

The court proceeded to accept the respondent’s submissions on requisite notice and granted immediate extract.