Graham Devine appealed to the Upper Tribunal for Scotland following an initial application by tenant Juan Bailo. He argued that the decision to make an order in his absence had gone against the FtT’s overriding objective.

The appeal was heard by Upper Tribunal judge Sheriff Tony Kelly. Written representations were made by the appellant.

Natural justice

The parties entered into a tenancy agreement in November 2018 with an agreed tenancy deposit of £350. At a case management discussion that took place in the absence of the appellant via teleconference on 5 January 2021, it was agreed that a hearing would be required in order to hear evidence on the date of the termination of the tenancy and whether the landlord had failed to comply with the Tenancy Deposit Schemes (Scotland) Regulations 2011. The hearing date was set down for 12 February.

By email dated 8 January 2021, the appellant contacted the Tribunal to ask that the proposed hearing no longer took place. He claimed that the respondent had attempted to mislead the Tribunal by claiming that his partner, a Ms Fernandez, was included in the lease by submitting pages from a separate lease agreement with his evidence. In turn, the respondent claimed that the parties had orally agreed that Ms Fernandez was to be considered a joint tenant of the property.

The hearing of 12 February went ahead via teleconference in the absence of the appellant, although he had made a request for the hearing to take place in person. As English was not the respondent’s first language a Spanish interpreter was present on the call. The Tribunal determined that more prejudice would be caused to the respondent than to the appellant by the teleconference medium and proceeded on the basis that the respondent was happy to continue.

It was the appellant’s position that the Tribunal had not adequately considered his request for an in-person hearing. He had argued that the body language of the respondent would be “significant” in determining whether his claims were accurate, and that natural justice could not be achieved on the basis of a telephone conversation.

Remained in the dark

In his decision, Sheriff Kelly observed: “The appellant was aware of the hearing of 12 February 2021. He did not want it to proceed in the fashion which it did. He made a number of requests to postpone it and referred to several bases as to why it ought not to proceed by teleconference. Faced with an application to postpone on the basis that the mode of the hearing was said to be inappropriate for one party, when there was no alternative envisaged in the short or even the medium term, the FtT was placed in a difficult position.”

He continued: “It was not sufficient for the FtT [to] consider that it had to avoid delay and then to consider only the prospect of inconvenience to the applicant when English was not his first language. The FtT failed to give proper consideration to the reasons put forward by the appellant as to why the hearing ought not to proceed at the telephone. This was not only the basis of convenience for the appellant.”

Considering the FtT’s handling of the appellant’s request, the sheriff said: “The FtT did not deal with any of the bases put forward by the appellant as to why the hearing ought not to proceed. It left out of account why the appellant wanted the matter to be postponed. The appellant remains in the dark as to what the FtT made of those various reasons he put forward to postpone the hearing. It failed to have regard to the overriding duty, in particular to deal with the case justly, to ensure that parties were on equal footing procedurally and able to participate fully in the proceedings. It failed to explain how, absent the appellant, the case could still be dealt with justly.”

He concluded: “The scope of the hearing and how it is envisaged that the matter will be resolved – for example, with reference to oral testimony alone - may well be a relevant consideration. Documentary material including witness statements may well go some way to resolving disputed issues. The availability of alternative means of convening the hearing and informed estimates about when those may be accessed by the FtT may affect whether the application to postpone may be given effect to. These sorts of considerations may well have been relevant to the FtT’s decision to postpone. The FtT decision is silent on what it made of these other factors, aside from delay, in the exercise of its discretion.”

Sheriff Kelly therefore quashed the original decision of the First-tier Tribunal and remitted the application for it to proceed as accords.