Upper Tribunal refuses leave to appeal in previously settled letting agent complaint case

Upper Tribunal refuses leave to appeal in previously settled letting agent complaint case

Leave to appeal was refused by the Upper Tribunal for Scotland

An application seeking leave to appeal against four applications alleging breaches of the Letting Agents Code of Practice has been refused by the Upper Tribunal for Scotland after it determined that the matters had already been settled.

Tonero Ltd had formerly hired Countrywide Residential Lettings to provide letting agent services for four properties it owned. It alleged that the First-tier Tribunal had failed to take into account the respondent’s behaviour during the course of settlement negotiations that took place following an earlier application to the Tribunal.

The application was considered by Sheriff Frances McCartney. The appellant was represented by company director Mr Etineh, while the respondent was represented by a Mr McEntegart.

Settlement negotiations

In November 2020, the appellant first applied to the First-tier Tribunal alleging various breaches of the Code of Practice by the respondent. After the lodging of that application settlement discussions took place between the parties, which the respondent considered to have reached a binding settlement. This position was disputed by the appellant, leading to a Sheriff Court action in which it was held that the parties had indeed formed a binding agreement to settle for the sum of £3,914.

Following the withdrawal of the 2020 application in October 2021, the appellant made four new applications to the FtT raising alleged breaches of the Code of Practice. There was no dispute that the alleged breaches were the same as those raised in the original application, with the addition of allegations of further breaches during the settlement negotiations.

The FtT rejected all four applications on the ground that it considered them to be frivolous. While the legal member observed that the appellant considered it was not given the opportunity to have legal advice prior to signing the settlement agreement and may have had some kind of complaint with regard to the actings of the respondent’s solicitor, those were not matters for the Tribunal.

It was the appellant’s case that the FtT had failed to take into account relevant factors in considering the application, including that the respondent had given it only 24 hours to respond to the settlement offer. The respondent had engaged in gross misconduct and exerted undue influence and its behaviour ought to have been examined by the Tribunal.

Hopelessly misconceived

In her decision, Sheriff McCartney observed: “Whilst the Appellant was given the opportunity via a hearing before the Upper Tribunal to explain in law why the First-tier Tribunal erred in its decision of 14 March 2022 that the applications were frivolous, the submissions made amount to a continuing grievance about, in particular, [the sheriff’s] decision. The Appellant has not engaged with the legal test before this tribunal, or indeed before the First-tier Tribunal.”

She continued: “Any question of the Respondent’s conduct could have been raised within the Sheriff Court proceedings, where the Respondents were legally represented. It was not. The Appellant has not appealed Sheriff Holligan’s decision. That decision determines the applications to the First-tier Tribunal alleging breaches of the Code had been settled and fell to be withdrawn. The First-tier Tribunal cannot make an order that such settlement is null and void.”

Turning to the specific allegations made by the appellant, the sheriff said: “The Appellant fails to explain why a 24 hour deadline to respond during a period of negotiations, with a tribunal hearing imminent, could be considered to be in any way ‘improper’, far less unfair or dishonest, far less how that might be a breach of the Code. The Appellant fails to explain why there is psychological damage arising from the negotiations (noting that the Appellant is a limited company). The Appellant fails in any persuasive argument that new applications before the First-tier Tribunal would have any prospects of success whatsoever.”

Affirming the decision of the FtT, Sheriff McCartney concluded: “Before the Upper Tribunal, the Appellant has stated bald points of law, without explanation or justification. The Appellant has continued with a line of litigation over a matter already settled. The current litigation is frivolous. It is hopeless misconceived.”

Leave to appeal was therefore refused.

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