An order for eviction was made against David Hutcheson by the First-tier Tribunal for Scotland on the ground of rent arrears after an application by landlord Richard Russell. Mr Hutcheson also sought to appeal a separate decision by the Tribunal ordering him to pay the respondent the sum of £8,450, that being the amount due in arrears.

The application was heard by Sheriff Iain Fleming, with the appellant representing himself and the respondent represented by Ms Grosvenor, solicitor.

Denied financial difficulty

The decision of the FTS was made at a Case Management Discussion held via conference call on 29 August 2022, at which the respondent was represented by Ms Grosvenor and the respondent did not appear. At the CMD, the respondent’s solicitor explained that no rent had been paid since December 2021, with the appellant offering no explanation as to why nor any proposals for paying the arrears.

Written representations were made by the respondent in which details of the appellant’s personal and family circumstances were outlined. It was the respondent’s belief that the appellant had the ability to pay the rent, that he was in the process of building a new home for himself and his family, and that he denied being in financial difficulty.

It was the appellant’s position that the FTS had taken the wrong approach to the case and made findings in fact without any evidential basis. He denied having received notice of the CMD via signed-for post, claiming he had been working away from home on the day the notice letter was delivered. Had he been able to attend the CMD, the FTS decision would have been different, as there were certain matters he wished to place before the Tribunal that were referable to the landlord.

The FTS concluded that the appellant had the opportunity to defend the proceedings at the appropriate time but had failed to do so. It was not persuaded that he was unaware of the orders granted against him at the original CMD. It previously denied permission for an appeal to the Upper Tribunal as it did not consider it would be in the interests of justice to allow it.

No compelling basis

In his decision, Sheriff Fleming observed generally: “The threshold of arguability is relatively low. An appellant does, however, require to set out the basis of a challenge from which can be ascertained a ground of appeal capable of being argued at a full hearing. This is an important qualification or condition on appealing which serves a useful purpose. If no proper ground of appeal is capable of being formulated then there is clearly no point in wasting further time and resources in the matter proceeding. The respondent in a hopeless appeal ought not to have to meet any further procedure in a challenge with no merit.”

Assessing the arguments put forward by the appellant, he said: “The appellant was personally served with the application by sheriff’s officers. An execution of service was before the FTS. As such the FTS was entitled to proceed upon the basis that the appellant knew of the proceedings. In my view the FTS was neither obliged nor entitled to look behind the sheriff’s officers’ execution of citation in the circumstances of this case in which there was no manifest error. The FTS was entitled to treat the execution of service at face value.”

He continued: “At the Upper Tribunal hearing on 1 March 2023 he had no evidence of his absence from home. In these circumstances it cannot be concluded that there was an error in law. No point of law has been identified by the appellant. The absence of a party from attendance at a CMD at which a decision was granted does not necessarily represent a compelling basis for appeal. It is not the case, as the appellant submits, that the FTS or the Upper Tribunal will necessarily or automatically grant an appeal in the event that a party does not appear.”

Addressing an argument by the respondent that the appellant’s conduct warranted an award of expenses, Sheriff Fleming said: “While it is the case that the appellant has been unsuccessful in as much as permission to appeal has not been granted, I cannot categorise his conduct as unreasonable such that it has put the other party to unnecessary or unreasonable expense. It is important that those parties who decide to exercise their rights in terms of the rules and regulations are not in way dissuaded from doing so by the prospect of a significant award of expenses being made against them. The appellant was entitled to seek to appeal the original decision of the FTS. He was also entitled to make an application for recall.”

He concluded, refusing the appeal: “I take account of the expense of cancelled evictions but as against that it is nevertheless important that those in the position of the appellant are able to seek to assert their rights without the prospect of an award of expenses against them. It needs to be remembered that the order that is being sought was to evict the appellant and his young family from their family home and on any view such a matter requires to be considered with considerable care. Given his personal circumstances one can hardly blame the appellant for seeking to exert his rights.”