Sheriff Appeal Court refuses to allow amendment application to allow woman to buy criminal brother’s Edinburgh flat

About this case:

• Citation:
  [2024] SAC (Civ) 45
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Aisha Anwar

Farzana Ashraf raised a claim against Richard Dennis, the Accountant in Bankruptcy, seeking the implementation of a set of missives from 2002 under which she was to purchase the equity in a flat owned by her imprisoned brother. The second respondent, Bill Cleghorn, was appointed as administrator of the pursuer’s brother’s estate in 2016 in terms of the Proceeds of Crime Act 2002. Both objected to the implementation of the missives on the ground that they had expired by negative prescription.

The appeal was heard by Sheriffs Principal Aisha Anwar and Kate Dowdalls, with Appeal Sheriff Robert Fife. Murdoch, solicitor advocate, appeared for the pursuer and appellant, Heaney, advocate, for the defender and first respondent, and Manson, advocate, for the party minuter and second respondent.

No disposition occurred

In November 1990 the pursuer’s brother, Mohammed Younas, acquired a flat at 82 Polworth Gardens, Edinburgh. He was sequestrated in 1993 and the AiB was vested with his estate, including the property. In April 2001 the AiB invited Mr Younas to purchase the equity in the property, but in September of that year he was imprisoned for two drugs offences and a confiscation order was made against him. The pursuer and her sister advised the AiB in 2002 that they wished to purchase the equity in the property, which was subject to a standard security.

£25,000 was paid to the AiB in two instalments in July 2002 and June 2003. Missives were concluded in October 2002 under which 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. However, they later decided they did not want the title of the property transferred to their names and ultimately no disposition occurred before the AiB’s discharge.

Mr Younas was again convicted of drugs offences in 2012, and his property was confiscated by the Crown. In a letter dated 11 April 2014 the AiB told the pursuer that, while the missives were discharged in September 2004, they would have no objection to transfer of title if a sheriff were to sign a disposition. This led to a sheriff court action which originally only sought the re-appointment of the AiB as Mr Youmas’ trustee. The pursuer’s proposed amendment sought to ordain the AiB to implement the 2002 missives by executing a disposition.

Before the sheriff the respondents argued that the obligations in the missives had prescribed under long negative prescription. The sheriff was not persuaded that the 2014 email amounted to a “relevant acknowledgement” of the claim under the Prescription and Limitation (Scotland) Act 1973 and refused to allow amendment of the application.

For the pursuer it was submitted that on a proper construction the 2014 letter clearly acknowledged an ongoing entitlement for her to insist on transfer of title. Esto the sheriff had not erred, he ought to have regard to other factor including an email sent by the AiB in December 2015 and the fact that the purchase price had been paid in 2003.

Properly addressed arguments

Delivering the opinion of the court, Sheriff Principal Anwar said of the sheriff’s decision: “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 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.”

She continued: “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.”

Considering the arguments that not been before the sheriff, the Sheriff Principal said: “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.”

She concluded: “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 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.”