Sheriff Appeal Court refuses party litigants’ appeal against tenancy eviction order

About this case:

• Citation:
  [2026] SAC (Civ) 39
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Wade

The appellants, who were tenants of a property owned by the respondent housing association, sought to challenge the order for recovery of possession granted by a sheriff on the basis of their anti-social behaviour. The respondent resisted the appeal, arguing that the appellants’ complaints in respect of the sheriff’s decision were unfounded.

The appeal was heard by Sheriff Principal Gillian Wade KC, with the appellants appearing in person and Anderson, advocate, appearing for the respondent.

Inequality of arms

The appellants became tenants of the respondent housing association in 2022 pursuant to a Scottish Secure Tenancy Agreement. A number of complaints regarding anti-social behaviour led to the respondent serving proceedings on the appellants to recover possession of the subjects, which order a sheriff granted in January 2026.

On appeal to the Sheriff Appeal Court, the appellants argued that the sheriff’s conclusions were unjustified on account of errors made in her findings of fact. Although the sheriff had found the appellants to have refused the respondent’s offer of a management transfer, the appellants denied this and claimed further that, among other things, they had been victims of a “campaign of malicious complaints at the instance of others”.

Various complaints in respect of a perceived inequality of arms between the parties were advanced, with the appellants citing the unfairness which had resulted from their inability to secure legal representation. In particular, the appellants submitted that the sheriff ought to have had greater regard to evidence of vulnerability contained in medical records lodged in process, albeit not spoken to in evidence, when assessing the reasonableness of allowing recovery of the subjects.

Aside from the appellants’ complaints in respect of the sheriff’s findings of fact, the appeal turned on whether the sheriff was entitled to grant decree for recovery of possession. Neither party disputed that the applicable law lay in section 16 of the Housing (Scotland) Act 2001, which requires the court to make an order for recovery of possession where the landlord establishes one of the listed grounds and it is reasonable to make the order, read with Article 8 of the European Convention on Human Rights by virtue of the Human Rights Act 1998.

No latitude to ignore procedure or the law

Beginning her decision by examining the extent to which a court may legitimately assist a party litigant, Sheriff Principal Gillian Wade KC noted: “There is something of a misconception that the latitude which should be afforded to those representing themselves extends to ignoring rules of practice and procedure, the law of evidence and in some cases the substantive law itself. Furthermore the party litigant cannot rely on the sheriff to act as their legal representative and make their case for them … [I]t was not for the sheriff to read and extract from the medical records or the appellants’ productions such evidence as she thought might assist them and insofar as the appellants submit otherwise, they are incorrect.”

Concluding that “no error of law” had arisen in relation to the sheriff’s findings regarding the appellants’ anti-social behaviour, the Sheriff Principal continued: “Although it may be that the appellants now can offer exculpatory evidence for some of the incidents the sheriff was relying on there are reports of incidents from various parties from 17 July 2022 until May 2024 to justify her finding in fact and law that the appellants had engaged in antisocial conduct for the purposes of ground 7 in Schedule 2 of the 2001 Act … Insofar as it was suggested that the sheriff proceeded on a misrepresentation that the appellants had been offered specific alternative accommodation but had refused that it appears that the appellants have misunderstood her conclusions … There is no finding in fact to the effect that a property had been identified and refused.”

Following the dicta of Lord Neuberger in Manchester City Council v Pinnock (2011) on the relationship between reasonableness and proportionality in the context of eviction proceedings, she added: “[U]nless proportionality is expressly placed before the court at first instance as a separate issue and the tenant provides fair notice on record as to why possession and eviction would in the particular circumstances be disproportionate as opposed to unreasonable then the sheriff may legitimately proceed to deal with the matter on the basis of the test referred to above and the mandatory considerations in section 16(3) of the 2001 Act which inherently embrace issues of proportionality in all but exceptional cases”.

Refusing to disturb the sheriff’s finding that making an order for recovery of possession would be reasonable, Sheriff Principal Wade added: “[T]he sheriff has carried out a detailed evaluation of the competing interests of a number of parties in granting the order … These include weighing the consequences of eviction for the appellants and their children against the objectives of enforcement of tenancy conditions, management of housing stock, the protection of the respondent’s staff and the consequences for the other families and children in the development should the appellants remain in occupation”.

Dismissing likewise the appellants’ evidentiary complaints, she concluded: “[A]lthough the appellants made passing reference to disabilities and vulnerabilities these were not developed and no witnesses were led to speak to the first appellant’s GP records. It was not open to the sheriff to take account of any passage in any document, the terms of which are not agreed, and to which reference was not made in the course of the evidence of any witness”.

The appeal was accordingly refused.