Tenant of Edinburgh student accommodation loses appeal against dismissal of Simple Procedure damages action

Tenant of Edinburgh student accommodation loses appeal against dismissal of Simple Procedure damages action

The Sheriff Appeal Court has refused an appeal by the tenant of student accommodation in Edinburgh who sought to overturn a decree of absolvitor on the ground that the case was conducted unfairly.

Appellant Mark Doran raised a Simple Procedure action against his landlord, SC Causewayside Ltd, seeking damages for inconveniences caused to him during the tenancy as well as loss of shower facilities. His overall position was that the sheriff conducting the proceedings had done so in breach of the Simple Procedure rules.

The appeal was heard by Sheriff Principal Nigel Ross. The appellant appeared as a party litigant while the respondent was represented by a solicitor.

Acted unfairly

The initial heads of claim covered inconvenience due to a high number of room inspections, delays in repairs, loss of shower facilities, delay in return of deposit and other complaints. After parts of the claim were dismissed at a case management discussion, the single remaining head of claim was for loss of shower facilities of a few days, for which the sheriff granted decree of absolvitor on 18 March 2022.

It was argued by the appellant that the manner in which the sheriff had conducted the case demonstrated bias against him. In particular he claimed that the sheriff had stated that the respondent’s solicitor appeared in court regularly and would be looking for dismissal, which he averred indicated bias.

Additionally, he argued that the sheriff had overextended the amount of hearings in the case, which began in 2020 and included multiple evidential hearings due to the significant amount of material he had lodged. The claimant’s submitted evidenced had included two DVDs comprising files of evidence, an audio recording, and 22 folders of some 300 unlabelled photographs, which the sheriff considered merited another date in order to allow the respondent to tackle the volume of material it now faced.

The appellant’s other grounds of appeal alleged that the sheriff had acted unfairly in requesting various written submissions from him but not the respondent. In particular, the sheriff had requested productions and statements of claim from him, and had acted unfairly during the evidential hearing by not explaining the respondent’s position.

Demanded too much

Delivering the opinion of the court, Sheriff Principal Ross said of the appellant’s first ground of appeal: “This ground of appeal lacks either principle or logic. The respondent, like almost every respondent in every case, would want either dismissal or absolvitor. For the sheriff to anticipate that is to anticipate the inevitable. To say so demonstrates nothing but the obvious. The fact a party wants a result does not mean they get it. Each case has to be argued, which is what happened here.”

On the length of the case, he continued: “There was no extravagant use of court procedure. Most appears to have been directed to repelling unjustified grounds of claim, asking the appellant to present his case in a coherent and fair way, and dealing with the consequences of his failure to do so. The appellant does not describe how things could have been done any quicker or more efficiently. The extended procedure appears attributable solely to the appellant’s choice of unsustainable claims and their chaotic presentation.”

Addressing the other appeal grounds, Sheriff Principal Ross said: “The appellant has not understood that, in raising a civil action, the burden is on him to prove his case. Irrespective of what the respondent said or did, the appellant required to come to court in a position to explain and prove his case. His case appears, although it is not spelled out, to be that the respondent was in breach of the contract of lease. He does not identify which term of the lease. He does not say why the conduct amounts to breach of contract. All of this is left to guesswork. That has served to obscure the legal basis of his claim.”

He went on to say: “The ground of appeal criticises the sheriff for not explaining the respondent’s position. The sheriff states that the respondent’s position was made plain by the respondent itself. The sheriff was mindful that, although a party litigant may be assisted to understand proceedings in general, a court cannot assist a party to win his case. The appellant demands too much of the sheriff, and too little of himself.”

Sheriff Principal Ross concluded: “The appellant’s complaint is, in effect, that he was taken by surprise by the defence that the respondent took reasonable care. That is not a good ground, because (i) the onus was, and remained, on the appellant to state clearly and prove his own case, irrespective of what the respondent said; (ii) the respondent’s claim to have acted reasonably was stated in their defence, and he only had to read that; and (iii) whether reasonable care was the test is a matter of law, not of evidence, and it was for the appellant to consider that before he raised the action, and certainly before he reached a final hearing 18 months later.”

The appeal was accordingly refused, with the appellant liable to pay the respondent expenses of appeal.

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