Tenant loses Upper Tribunal appeal against order to pay two years of rent arrears

Tenant loses Upper Tribunal appeal against order to pay two years of rent arrears

A tenant ordered to pay over £11,000 in rent arrears from September 2021 until 2023 to his former landlord has lost an appeal against the First-tier Tribunal’s decision to make the award against him.

Angus O’Donoghue rented a property in Airdrie from Celtad Ltd from January 2020, and left the property in April 2023 having not paid rent since September 2021. Mr O’Donoghue, who had previously been employed by the appellant, was allowed an appeal on grounds of errors in the Tribunal’s treatment of evidence and in the conduct of proceedings.

The appeal was heard by Sheriff Ian Cruickshank of the Upper Tribunal for Scotland. The appellant was represented by his mother, Susan O’Donoghue, while the respondent was represented by a Mr Malone.

Unpleasant comments

Two applications were initially made to the FTS by the respondent, one for eviction and the other for rent arrears and associated expenses. The expenses were described as various invoices from the respondent’s lawyer and sheriff officers regarding the eviction process. Two hearing dates were set for January and April 2023, and on the second hearing day the eviction application was set aside as the appellant had vacated the property.

On 19 June 2023 the FTS issued its written decision in favour of the respondents and granted an order for payment against the appellant in the sum of £11,691.17. This comprised the sum of £11,385 in rent arrears and a further £306.17 which the FTS determined to be recoverable as a result of the respondents having to serve notices to leave on the appellant.

The appellant advanced eight grounds of appeal, all of which were allowed to proceed by the FTS. These included that the FTS had made findings in fact without an evidential basis and overlooked important evidence, and grounds of procedural unfairness based on the respondent being allowed to interrupt the appellant during his evidence and make unpleasant comments on his character.

In its decision granting permission to appeal, the FTS did not pass comment on the grounds beyond stating they raised arguable points of law. In their written submissions, the respondents stated that, while there were interruptions from both parties during proceedings, the hearing had been conducted professionally.

Ultimately straightforward case

In his decision, Sheriff Cruickshank observed: “It is commonplace before courts and tribunals that hearings involving party litigants can become heated and this can pose issues which must be controlled and managed appropriately. Certain leeway will be afforded by the decision maker in the presentation of a case in such circumstances. Acrimony and animosity often become self-evident and it is the task of the decision maker to control tempers and remind parties of the propriety of presentation of their respective positions.”

He continued: “Setting aside what the evidence was, and what the FTS made of that, the original decision carefully records the case as presented by both parties. What this discloses is a detailed and extensive presentation of evidence on the part of both parties. It records a particularly robust and detailed cross-examination on the part of the appellant focused on attacking the credibility of the respondent. Based on this there can be no sustainable argument that the fairness of the hearing prevented the presentation of the appellant’s case.”

On whether the Tribunal’s findings in fact were accurate, the sheriff said: “In relation to this ground of appeal I have concluded that the appellant, to a substantive degree, is asking the UTS to prefer his evidence as it was presented before the FTS over that of the respondent. That is not the function of the UTS as has been repeated in many appeal decisions. There was clearly an evidence base for the FTS to make the findings in fact that it did following its evaluation of the evidence. Put simply, it preferred the evidence of the respondents. It did not accept the background as presented by the appellant.”

He concluded: “Given the nature and extent of the grounds of appeal as presented this was a lengthy appeal process with an extensive volume of papers and submissions to consider. It should not have been so. Nothing has been presented on appeal which causes me to question the FTS’s comment that, ultimately, this was a straightforward case relating to rent arrears.”

The appeal was therefore refused on all grounds.

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