Sheriff Appeal Court refuses appeal against eviction of sequestrated woman from family home

About this case:

• Citation:
  [2024] SAC (Civ) 19
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Pyle

Gordon Maclure, an insolvency practitioner appointed trustee on the sequestrated estate of defender and appellant GG, sought to sell the appellant’s family home under the terms of the Bankruptcy (Scotland) Act 1985. The sale was expected to realise sufficient funds for payment in full of the creditors and the costs of the sequestration.

The appeal was heard by Sheriff Principal Derek Pyle. The appellant appeared as a party litigant while the respondent was represented by Garden, advocate.

Greater prejudice

After failing to pay council tax to her local authority, the appellant was sequestrated on 19 December 2012. It was not disputed that the heritable property in questioned was the family home of the appellant and her son.

There were significant delays in the bringing of the action, not all of which were fully explained to the court. It was noted that the appellant had refused to engage with the respondent throughout the sequestration, including zero communication between 2015 and 2021, and that accusations about the appellant had been made by the respondent following a difficult first meeting.

The respondent applied to the sheriff court for authority to sell the family home under section 40(2) of the Bankruptcy (Scotland) Act 1985. Rejecting many of the appellant’s submissions as irrelevant, the summary sheriff noted that the Act gave her a wide discretion but concluded that in this case the greater prejudice lay with the creditors. The significant delay had given the appellant time to find an alternative to sale, and public interest favoured the completion of the sequestration.

The summary sheriff accepted, under reference to Accountant in Bankruptcy v Davies (2022), that hardship to the debtor and the debtor’s family is a factor which can legitimately be taken into account. However, she disagreed with certain obiter remarks of the sheriff in that case about the need for the trustee to make an application within three years of the date of sequestration and granted the application.

In her written submissions, the appellant relied on matters she had raised before the summary sheriff. To this, she added a further allegation of a conspiracy involving the trustee, his solicitor, the local authority and the Department for Work and Pensions, the effect of which was that the trustee delayed making the application in the hope that the appellant’s state pension entitlement would improve.

No proper basis

In his decision, Sheriff Principal Pyle observed: “The reasons for the delay in this case are not satisfactorily explained. That is doubly concerning given that the trustee must have had in his contemplation on now two occasions – before the summary sheriff and before this court – that questions would be asked. It is not sufficient to seek to blame the appellant for the delay.”

Addressing the grounds of appeal, he said: “None of this is a proper basis for an appeal which is against a discretionary decision of a court of first instance. No error of law is identified. In any event, I agree with the summary sheriff’s reasoning. I agree with Sheriff Mitchell in Macleod’s Trustees v Macleod (2007) that such applications will be refused on the ground of hardship only in exceptional circumstances.”

Sheriff Principal Pyle concluded: “I agree with the summary sheriff that the appellant failed to make out a case for such exceptional circumstances to apply in her case. Given that this opinion will be published and in the interests of the appellant’s right to confidentiality, I do not set out what those alleged circumstances were. They are in any event immaterial to the general point of principle which arises.”

Both questions of appeal were answered in the affirmative, and the appeal by stated case refused.