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Asam Ahmed against Excelsis Real Estate Ltd (Upper Tribunal - Housing and Property Chamber) [2025] UT 26 (17 April 2025)
URL: http://www.bailii.org/scot/cases/ScotUT/2025/2025ut26.html
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[2025] UT 26
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1
2025UT26
Ref: UTS/AP/24/0081
DECISION OF
Sheriff Tony Kelly
ON AN APPEAL
IN THE CASE OF
Mr Asam Ahmed
Appellant
- and -
Excelsis Real Estate Ltd,
per TC Young
Respondent
FTS Case Reference: FTS/HPC/CV/23/1099
GLASGOW, 17 April 2025.
Decision
The Upper Tribunal upholds the appeal; quashes the decision of the First Tier Tribunal for
Scotland, Housing and Property Chamber, dated 27 June 2024; remakes the decision in terms of
section 47(2)(a) of the Tribunals (Scotland) Act 2014; thereafter recalls the decision of the First Tier
Tribunal for Scotland, Housing and Property Chamber, dated 18 December 2023 and remits the
application to the First Tier Tribunal for Scotland, Housing and Property Chamber to proceed as
accords.
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Introduction
[1]
The appellant made application to the First Tier Tribunal for Scotland, Housing and
Property Chamber (FTS) seeking an order for payment against the respondent. The appellant
sought £18,000 by way of compensation for inconvenience arising from a breach of certain
obligations due by respondent as landlord to the appellant as tenant. The appellant avers that there
were various defects within the property rented to him. His claim for inconvenience was broken
down to reflect his loss of use and enjoyment of the property; the requirement to vacate the
property while repairs were being undertaken, incurring the expense of alternative
accommodation; a claim in respect of anxiety and stress; a loss of income due to being unable to
attend work and an abatement of rent.
[2]
The appellant made a number of applications which were returned in light of a number of
deficiencies identified, initially by the secretariat to the FTS, and then by a legal member. By letter
dated 3 November 2023, the FTS indicated that the application was accepted and a case
management discussion was assigned for 18 December 2023. The letter assigning the case
management discussion was sent also to the respondent, and served by Sheriff Officers, at the
respondent's registered office at 403 Links Road, Aberdeen, AB24 5DJ.
[3]
At the case management discussion, the FTS noted that the application had been lawfully
served upon the respondent together with intimation of the hearing. It proceeded with the case
management discussion, notwithstanding the absence of the respondent in accordance with rule
29 of the First Tier Tribunal for Scotland, Housing and Property Chamber (Procedure) Regulations
2017 ("the 2017 Regulations"). On the appellant's motion, the FTS granted a payment order against
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the respondent in the sum of £18,000. It referenced the case of Woro v Brown 2022 UT 28; 2022 SLT
(Tr) 97. A copy of the FTS decision was sent via Royal Mail to the respondent at its registered office.
[4]
The respondent applied for recall of the FTS decision. The application was received by the
FTS on 12 January 2024.
FTS Decision
[5]
In a decision dated 27 June 2024, the FTS considered the application for recall. It noted the
terms of rule 30 of the 2017 regulations. The application for recall was one day beyond the 14 day
period provided for in rule 30(4). The FTS considered the application though late.
[6]
The FTS narrated what had been submitted by the respondent in the application for recall,
that: (i) it was not aware of the case management discussion; (ii) a letting agent managed the
property on its behalf and those agents dealt with the issues raised by the appellant; and (iii)
records were kept of all correspondence and actions.
[7]
The respondent was a limited company. The FTS was aware of difficulties in documents
making their way to appropriate personnel within a limited company. Prompt action had been
taken by the respondent when alerted to the FTS decision. The respondent had instructed
solicitors. The respondent was not aware of the proceedings. The sum provided for in the
payment order was substantial. It was an order granted without enquiry into the merits. There
was material available to enable the FTS "to consider the claim in more detail". The decision was
recalled.
Appeal
[8]
With the benefit of permission to appeal granted by the Upper Tribunal, the appellant
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contends that there are several errors in the reasoning of the FTS. The application for recall had
been submitted beyond the 14 day time limit provided for in rule 30(4) of the 2017 regulations.
Although there was power to extend that time limit in rule 30(5), there was no cause shown for
that extension. Separately, the appellant took issue with the merits of the recall decision. Lawful
service had been effected of the application and case management discussion date. Allowing a
party to obviate the application of these rules "compromises the integrity of the tribunal's
processes, setting a dangerous precedent".
Hearing: 18 February 2025
[9]
The appellant was present personally with the benefit of an interpreter. Mr Anderson,
Advocate, represented the respondent.
Appellant
[10] The appellant identified and repeated the errors stated in the grounds of appeal. There
was an error on the part of the FTS in accepting the application for recall given it was not made
within the 14 day time limit stipulated in rule 30(4). The appellant referred to the covering letter
sent by the FTS secretariat with the FTS decision of 18 December 2024. The appellant referred to
and adopted his 77 page written submission submitted in advance of the hearing in response to
the respondent's submission of 20 December 2024.
Respondent
[11] Counsel invited the Upper Tribunal to refuse the appeal. It was submitted that there was
no material in the grounds of appeal that would justify interfering with the FTS decision.
Mr Anderson recognised at the outset that the procedural rules were not mere technical or
procedural rules and that it was expected that parties would comply with them. He candidly
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acknowledged that there had been a failure to comply with the procedural rules. The respondent
was not assuming that this failure would be the subject of relief.
[12] Turning to the decision of the FTS, it was accepted that this could have been expressed with
greater clarity. However, the conclusion arrived at by the FTS was one open to it and indeed open
to any reasonable tribunal properly directing itself. The FTS was exercising a discretion provided
by rule 30 of the 2017 rules. Any challenge on the ground of irrationality was not capable of
succeeding.
[13] Counsel submitted that the onus was on the party seeking excusal from failure to comply.
A valid case had been made for excusal from failure to comply with the procedural rules, McKelvie
v The Scottish Steel Scaffolding Company Ltd 1938 SC 278. Counsel sought to draw an analogy with
reponing in an ordinary action. He noted that in terms of the summary cause rules (the Summary
Cause Rules 2002 as amended) so long as the procedure in respect of the application was complied
with, reponing was mandatory.
[14] Rule 30 was a similar provision, where a party had failed to comply with a procedural rule
or had failed to appear at a diet. Rule 30 envisages that there has been a failure. Counsel referred
Opinion of the Court, delivered by the Lord Justice General. Whether the 14 day period provided
for in rule 30(4) should be extended depended upon the whole facts and circumstances, including
the merits of the application for recall.
[15] At paragraph 5 of the FTS decision of 27 June 2024, the FTS proceeded on a piecemeal basis.
It dealt with the application being made out of time, though not expressly extending the time limit
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in terms of rule 30(5). It did not have regard to the explanation put forward for the delay. In Mr
Anderson's submission it was clear that when one had regard to the explanation, though not
wholly exculpatory it did not exhibit wilfulness or intentional disregard for the procedural rules.
[16] At paragraph 6 of the FTS decision, Mr Anderson submitted there was an acceptance of
matters contained in the respondent's application for recall.
[17] At paragraph 7 the FTS had noted that the respondent was a limited company. Mr
Anderson did not suggest that an incorporated party falls into a different category of respondent
deserving of different consideration from other parties. It noted difficulties that may be
experienced with service upon a limited company. Though service had been lawfully effected, the
FTS was anecdotally aware of mishaps in materials being drawn to the attention of the appropriate
individuals within a limited company. The FTS was entitled to reach the conclusion that the
respondent was not aware of the proceedings. This was what was asserted in the application for
recall.
[18] Paragraph 8, Mr Anderson submitted, was a summation of the application of the interests
of justice test. There was a significant amount of money that was the subject of an order for
payment. The FTS was aware of its previous decision - this was an order granted without full
consideration of the merits, akin to a decree in absence or decree by default. There was more
information now available to enable the FTS to consider the claim in more detail. Mr Anderson
submitted that the FTS was expressing itself neutrally. He accepted that this amounted to a
tentative assessment of the material before the FTS in the application for recall. It had not grappled
with whether there was a stateable defence. This was not a prerequisite for an application for recall
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to be granted. That the subject matter required further investigation, could be a proper basis for
recall of a decision.
[19] The respondent submitted that on a proper reading, the FTS decision had properly applied
rule 30. There was little prejudice to the appellant in allowing proper ventilation of the issue. On
the other hand, there was significant prejudice and injustice caused to the respondent if this
payment order was allowed to stand.
Reply
[20] In a brief reply, the appellant repeated that, as the application and date for the case
management discussion had been lawfully intimated upon the respondent, the application for
recall was not properly before the FTS. The respondent had plenty of time to receive and digest
the intimation received in respect of the case management discussion. The appellant had not
received the application for recall.
Decision
[21] It was not disputed that the FTS proceeded competently on 18 December 2024 to make a
payment order in favour of the appellant in the sum of £18,000.
[22] Rule 30 of the 2017 Regulations provides:
"Recall
30.--(1) In relation to applications mentioned in Chapters 4, 6, 8, 11 and 12 of
Part 3 of these Rules, a party may apply to the First-tier Tribunal to have a
decision recalled where the First-tier Tribunal made the decision in absence
because that party did not take part in the proceedings, or failed to appear or be
represented at a hearing following which the decision was made.
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(2) An application by a party to have a decision recalled must be made in writing
to the First-tier Tribunal and must state why it would be in the interests of justice
for the decision to be recalled.
(3) An application for recall may not be made unless a copy of the application
has been sent to the other parties at the same time.
(4) Subject to paragraph (5), an application for recall must be made by a party
and received by the First-tier Tribunal within 14 days of the decision.
(5) The First-tier Tribunal may, on cause shown, extend the period of 14 days
mentioned in paragraph (4).
(6) A party may apply for recall in the same proceedings on one occasion only.
(7) An application for recall will have the effect of preventing any further action
being taken by any other party to enforce the decision for which recall is sought
until the application is determined under paragraph (9).
(8) A party may oppose recall of a decision by--
(a)lodging with the First-tier Tribunal a statement of objection within 10 days of
receiving the copy as required under paragraph (3); and
(b) sending a copy of the statement to any other party, at the same time.
(9) After considering the application to recall and any statement of objection, the
First-tier Tribunal may--
(a)grant the application and recall the decision;
(b)refuse the application; or
(c)order the parties to appear at a case management discussion where the First-
tier Tribunal will consider whether to recall the decision."
Time Limit
[23] The FTS noted that the application for recall was received out with the time limit provided
for in rule 30(4). The 14 day time limit is able to be extended "on cause shown" in terms of rule
30(5). The FTS found cause had been shown to allow the application to be considered though late
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on the basis that it was received one day beyond the time limit. This appears to be the only factor
that the FTS had regard to in deciding to consider the application for recall, though late. If cause is
shown simply by observing that a modest time has elapsed beyond the 14 day limit when the
application for recall should have been made then as the appellant submitted - the time limit is
in essence a vague aspiration to be complied with; it amounts to building in to the time limit a
margin of error for eventualities not the subject of any provision in the 2017 Regulations. The FTS
fell into error in deciding that the time limit could be extended because only one day had passed
beyond it.
Application for Recall
[24] The FTS then considered the merits of the application for recall. The FTS reasoned on an
anecdotal basis that there may be problems with documents getting to the correct personnel when
proceedings are served upon a limited company. It did not fall into error in holding that the
respondent was not aware of the proceedings. This is what the respondent had asserted in terms
in its application. There was no argument to the contrary before it.
[25] The operative part of the decision of the FTS is contained in paragraph 8. It noted that the
repayment order was for a significant amount. The order was granted without enquiry into the
merits. There was material "available to enable the tribunal to consider the claim in more detail".
The decision of 18 December 2023 was recalled.
[26] A decision of the FTS may be recalled if it was made in the absence of a party because the
party did not take part in the proceedings, or failed to appear or be represented. The application
for recall must be made in writing and a copy sent to the opponent. It must be made within 14
10
days of the decision, though that time limit may be extended. In terms of rule 30(2), a party making
application to recall a decision must address why it is the interests of justice for it to be granted.
The discretion afforded to the FTS in determining upon an application for recall is unfettered by
rule 30(9).
[27] The FTS decided that the respondent was not aware of the proceedings and, it must be
assumed, reasoned that the respondent was also unaware of the case management discussion of
18 December 2023. Something had gone awry. Nothing was made express as to the reason why the
respondent was unaware of the proceedings and the hearing. The FTS satisfied itself that the
procedural aspects that it is directed to consider in an application for recall were fulfilled.
[28] In proceeding to recall the decision having regard only to the order being in the sum of
£18,000; being without contest, and noting that more material was available, the FTS has erred.
[29] The mischief that rule 30 seeks to meet is that through failure to be a party to proceedings
or to attend at a hearing, a party may suffer injustice or prejudice. A tribunal may proceed to make
an order having being satisfied that service has been effected lawfully upon the absent party. What
constitutes lawful service is well defined and understood (Cabot Financial (UK) Limited v Bell
that service had been lawfully effected on the respondent.
[30] The appellant makes much of adherence to these procedural rules. He is correct in
submitting that they are no mere procedural niceties. He goes too far when he says that in allowing
an application to recall, the FTS disrespects the procedural rules. This is, after all, why rule 30
exists; to cater for mistakes and remediable errors.
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[31] The FTS had regard to the sum or amount of the order. That may well, along with other
factors, be a significant consideration. But the injustice is likely to be measured, not in the sum of
money alone, but the opportunity lost to put matters right. In looking to that missed or lost
opportunity, the FTS appears to have only had regard to the fact that the order had been
pronounced without hearing from the respondent. That would be the case in any undefended
hearing. What was of significance here was the issue between the parties. The information
provided to the FTS was that more material was available. It is far from clear on the material
submitted to the FTS - that a stateable defence existed. The FTS had regard to there being material
available to enable it to look into the matter further and in more detail.
Conclusion
[32] The factors relied upon by the FTS were insufficient to justify recall. As the First Division
observed in McKelvie, the court should be reluctant to hold that a decree becomes final when a
substantial defence has never been heard. Here, the FTS did not reach that point. Had the FTS
been able to establish what the defence was it would have been in a position to approach the
application to recall "from a very different angle", McKelvie at p.281. The reasons proffered did not
amount to sufficient justification for recalling the decision in terms of rule 30. I therefore uphold
the appeal and quash the decision of the FTS dated 27 June 2024.
Remaking the Decision
[33] Where a decision of the FTS is quashed in an appeal, section 47(2) of the Tribunals
(Scotland) Act 2014 empowers the Upper Tribunal to remake the decision. In this appeal, the
Upper Tribunal has greater information available to it than the FTS. As a result of failures properly
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acknowledged by Counsel, the respondent was unaware of the original application. Nothing
submitted by the appellant casts doubt upon that. In relation to why the respondent did not attend
the case management discussion, the service effected by sheriff officers was lawful, though in
reality, and particularly with reference to this application, and this respondent, it was not
processed through to the officers of the company able to deal with it. The postal service of the FTS
decision of 18 December 2023 was treated differently. The respondent had a divert service for
mail. As soon as this decision was received the application for recall was submitted.
Time Limit
[34] In determining whether cause has been shown to entertain the application to recall though
late, the tribunal must carry out a balancing exercise. On the one hand, this procedural rule
providing a time limit, must be observed. On the other, the rules also provide for a dispensing
power, for the time limit to be extended. The extension of the time limit should have been the
subject of separate application and separate consideration by the FTS. It was not. In considering
whether cause has been shown to consider the application for recall though out of time, I note the
detailed explanation proffered by the respondent for its lateness and for not attending the case
management discussion. In making the decision afresh, I have decided to consider the application
to recall notwithstanding that it is made beyond the timescale provided for in rule 30.
Defence
[35] The Upper Tribunal also has the benefit of further material and more detailed submissions
about the nature of the dispute between parties. The respondent has outlined a detailed defence
disputing the constituent elements of the appellant's claim and explaining why the sum sued for
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is excessive. The respondent submits that the disrepair was remedied timeously having regard to
the strictures placed upon it by the national lockdown. The sum sued for is excessive. This is not
submitted without further material to substantiate that defence. Submissions are made on the
claimed abatement of rent; sums sought by way of missed work; the absence of vouching and, it is
said that the appellant himself frustrated the completion of the work be denying workmen access
to effect the repair.
[36] I reject the appellant's focus solely upon the terms of rule 30(4). The fact that the decision
was competently made on 18 December 2023 does not render it immune from challenge. The fact
that parties were lawfully cited to attend the case management discussion, and the application was
properly and lawfully intimated upon the respondent, only takes the appellant so far. Rule 30
allows for a fuller consideration of the issue.
[37] Balancing overall:
(1) the explanation for the failure to appear or be represented at the case management discussion;
(2) the reasons for the failure to lodge the application for recall within the 14 day time limit;
(3) the basis of the application to recall the decision and;
(4) the detailed defence provided for in the submission of the respondent,
I recall the decision of 18 December 2023.
Conclusion
[38] I uphold the appeal and quash the decision of 27 June 2024. I remake the decision, grant
the application for recall of the decision of the FTS dated 18 December 2023 and thereafter remit
the application to the FTS to proceed as accords.
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A party to this case who is aggrieved by this decision may seek permission to appeal to the Court
of Session on a point of law only. A party who wishes to appeal must seek permission to do so
from the Upper Tribunal within 30 days of the date on which this decision was sent to him or her.
Any such request for permission must be in writing and must (a) identify the decision of the Upper
Tribunal to which it relates, (b) identify the alleged error or errors of law in the decision and (c)
state in terms of section 50(4) of the Tribunals (Scotland) Act 2014 what important point of principle
or practice would be raised or what other compelling reason there is for allowing a further appeal
to proceed.
Member of the Upper Tribunal for Scotland