The Sheriff Appeal Court has reaffirmed the narrow and exceptional nature of a reponing note in its recent decision in Kaswar Mostafa, Karim Alsfazli and Khaled Ahmed Alobid v Abo Tamer Limited ([2025] SAC (Civ) 37). The judgment serves as a clear reminder that parties who fail to engage with court proceedings do so at significant risk, and that the scope for reopening proceedings after decree in absence is extremely limited.
Where a decree in absence has been granted against a party following a failure to defend the claim, the decree may be recalled (the technical term is reponed) if the court is satisfied that the party seeking recall has:
- stated a reasonable justification for their failure to appear; and
- set out a stateable defence.
While the reponing procedure may at first glance appear straightforward, it is essential that any application to reopen is carefully considered and accurately set out before being lodged.
Background
The dispute concerned a commercial lease of premises on Dalry Road, Edinburgh. As a result of unpaid rent arrears, the landlords raised an action seeking declarator of irritancy (i.e. confirmation that the lease was at an end following service of the required legal notices) and removal of the tenant. The lease, which was entered into in August 2020, provided for an annual rent of £13,000, payable monthly.
The action was served on the tenant by recorded delivery in April 2025. No notice of intention to defend was lodged, and decree in absence was granted on 27 May 2025, following which the landlords recovered possession of the premises.
The reponing note
The tenant later sought to reopen the decree, claiming that the court papers had not been received and disputing the level of arrears. The sheriff refused the application. While the sheriff accepted that the failure to respond to the court papers might be excusable, the tenant had failed to set out a stateable defence, which is a fundamental requirement for reponing a court judgment under Ordinary Cause Rule 8.1.
Appeal to the Sheriff Appeal Court
On appeal, the tenant attempted to advance new arguments, including waiver, personal bar and delay, and raised concerns about the Royal Mail tracking information used for service. However, the Sheriff Appeal Court dismissed the appeal, holding that:
- Reponing is a narrow, discretionary remedy requiring both an excusable failure to appear and a stateable defence.
- A reponing note (i.e. the application to recall the decree) cannot be amended or supplemented on appeal; the appellate court is confined to the case presented to the sheriff at first instance.
- The sheriff had correctly exercised discretion in refusing the note, as no relevant defence had been pled.
The Court also noted that decree had already been implemented, with possession restored to the landlords, meaning that the appeal was largely academic.
Key legal principles
Strict requirements for reponing
Under Ordinary Cause Rule 8.1, a party seeking to reopen must satisfy two tests:
- an excusable failure to appear, and
- a stateable defence.
Both elements must be present. Even where non appearance is excusable, the absence of a substantive defence will be fatal.
Limited scope of appeal
The Sheriff Appeal Court will not entertain new grounds or evidence not presented at first instance. Parties must ensure that any potential defence is fully articulated in the reponing note.
Waiver and personal bar
The Court rejected arguments based on waiver and personal bar, noting that acceptance of rent does not necessarily preclude irritancy where arrears persist and the terms of the lease are clear.
Practical implications
The decision highlights the importance of following proper service procedures and acting swiftly to enforce decisions issued by the courts. For parties who fail to defend a properly raised claim, the case is a cautionary tale: ignoring court papers can have irreversible consequences. Even where service is disputed, the burden lies on the defender to demonstrate a credible defence.
When raising a claim, parties should ensure service is executed properly: accurate service strengthens enforcement and reduces the risk of challenge.
The judgment also illustrates the courts’ reluctance to disturb decrees once implemented. Reponing is exceptional: it requires both an excusable failure to appear and a stateable defence. There are no second chances on appeal, and new arguments cannot be introduced at the appeal stage.
Finality matters: once decree has been implemented, remedies are extremely limited. In this case, by the time of the appeal, possession had already been restored to the landlords, making any practical remedy impossible and ultimately underscoring that parties ignore court proceedings at their peril: once decree is implemented, the door to reponing is all but closed.
