Briefing: Sequestration case clarifies how to proceed following sheriff refusal at first instance

Solicitor advocate Andrew Foyle reviews the judgment in C&M Wealth Global Ltd v Gall.

The Bankruptcy (Scotland) Act 2016 provides that an award of sequestration is not subject to review, save by way of recall proceedings in terms of certain provisions of the Act. While there are various provisions setting out specific rights of appeal from the sheriff to the Sheriff Appeal Court (SAC), the recall provisions of the Act are silent on the question of whether there is any further right of appeal if recall is granted or refused by the sheriff at first instance.

Interestingly, this does not appear to be a question which has come before the court prior to the recent SAC judgment in C&M Wealth Global Ltd v Gall [2026] SAC (Civ) 11 (opinion of Sheriff Principal Wade, 6 February 2026). In Gall the debtor applied for recall of her sequestration, which had initially been refused by the sheriff. An appeal was lodged with the SAC, at which point a question of competency was raised.

Consulting the rules

The debtor argued that appeal was competent because the refusal of recall was a ‘final decision’ and therefore appealable to the SAC under the Court Reform (Scotland) Act 2014. She pointed to the fact that there was nothing in the rules nor in the 2016 Act which expressly excluded such an appeal.

On behalf of the petitioning creditor, it was accepted that the position was not clear cut. They could identify no authority on the point and the rules appeared ambiguous. The creditor noted that other appeals had been considered by the SAC under the 2016 Act where there was no express right of appeal. Ultimately, the creditor’s position was that in the absence of clear authority, this was a matter for the court to determine.

The court examined the provisions of the 2016 Act. It noted that in cases where the application for recall fell to be considered by the Accountant in Bankruptcy (AIB), there was provision for appeal from the AIB to the sheriff. However, the sheriff’s decision in those cases was expressly stated to be final. Significantly, there was no such stipulation in this case, and so it could not be said that no appeal lay with the SAC.

Process and permission

However, the court then considered the categories of appeal which are competent without leave under the 2014 Act. One such ground is where the decision appealed against is a ‘final decision’. The debtor had argued that leave wouldn’t be required, as the decision of the sheriff on recall represented a ‘final decision’ for the purposes of the 2014 Act.

The court considered the authorities on the point, including a crucial passage from MacPhail’s Sheriff Court Practice. MacPhail states that decisions of a sheriff in bankruptcy applications at first instance were not ‘final’ because they are applications within the sequestration process. The sequestration itself continues after the disposal of the application. On the strength of those authorities, the court held that an appeal to the SAC could only be taken with the permission of the sheriff, and that as leave had not been sought in this case the appeal was incompetent.

As the SAC itself recognised, the granting of leave to appeal is likely to be rare and the grounds of appeal are limited given the discretion open to the sheriff at first instance. Nevertheless, the case provides welcome clarity to any party with an interest in the recall of a sequestration, regarding the procedure which must be followed in the event of its refusal at first instance.

Andrew Foyle is a solicitor advocate and partner on contentious financial services matters within Shoosmiths’ dispute resolution and litigation team in Scotland.