Tenant denied permission to appeal eviction on basis of not having legal representation at hearing

About this case:

• Citation:
  2026UT20
• Judgment:
  External link
• Court:
  Upper Tribunal for Scotland
• Judge:
  Sheriff Dunipace

Carolann Curran sought leave to appeal a decision in favour of her landlords Douglas and Linda McLennan dated 19 March 2025 on the basis that, while she had attended the hearing, she had not truly been able to take part in it and thus the interests of justice were not applied properly. Permission to appeal was initially denied by the FTS after it determined that the decision not to seek legal representation was her own choice.

The application was considered by Sheriff Colin Dunipace of the Upper Tribunal. The appellant appeared without legal representation, while the respondents were represented by Ms Fitzgerald, solicitor, who had also represented them at the FTS.

Undermined participation

On 12 March 2025, the appellant, supported by her daughter Ms McKenzie, attended a hearing of the FTS in which the respondents sought her eviction from a rented property in Broughty Ferry on the ground that one of them intended to live in the let property themselves while the other remained in Dubai for work and would return to the property occasionally. The decision of the FTS noted that the respondent and her daughter were both in employment and expected to find alternative accommodation if there was a delay in enforcement of the order until June 2025.

In its decision, the FTS stated that the respondent did not oppose the application so long as a delay in enforcement was granted. Before the UTS however, the appellant contended that she had been subjected to undue pressure during the discussions and gave “non voluntary consent” to the order. She also noted that at the time she had recently suffered a bereavement and was suffering from anxiety and depression.

The appellant further argued that the FTS had failed to consider her rights under Article 6 ECHR, as her effective participation in the hearing had been undermined by her lack of legal assistance and her vulnerable state. Whether she had “taken part” in the hearing was to be construed purposively as having real, effective, meaningful participation, not just whether she had attended.

In refusing permission to appeal in June 2025, the FTS considered that this submission was not convincing, as the appellant had taken part in the discussions which resulted in a joint position being put before the Tribunal. She was aware that the respondents were represented from the outset and chose not to seek her own legal representative even after a specific reminder from the Tribunal.

Personal choice

In the decision of the UTS, Sheriff Dunipace said of the appellant’s lack of representation: “The Appellant was unable to advise of any steps taken by her to seek advice and/or representation prior to this Hearing. Further, during the Hearing itself the Tribunal specifically advised the Appellant regarding her right to obtain representation and would no doubt have been given an opportunity to do so had she so requested. Notwithstanding this, the Appellant did not seek an adjournment to obtain representation.”

He continued: “In circumstances where a party effectively refuses to avail themselves of an opportunity afforded to them, it is not open to them to pray in aid their own choice as demonstrating that there has been a procedural irregularity to their detriment. The lack of representation was due to the personal choice of the Appellant and in the circumstances as narrated by the Tribunal it cannot be said that her choice not to instruct a representative meant that she could be taken as not having participated in the proceedings. In any event the Tribunal provided her with assistance, and it was noted that there was no suggestion by them that they did not understand the proceedings.”

Considering the argument on mental distress, Sheriff Dunipace said: “it is noticeable that no evidence to support this position was provided at the Hearing or indeed subsequently. In any event it was noted that the Appellant had been in receipt of support from her daughter, Ms McKenzie. Whilst it is accepted that a companion might not be able to provide assistance or representation, nonetheless they can provide a valuable function by helping to put a party at ease and helping them to function better in an unfamiliar environment. Again, the Appellant did not seek an adjournment on the basis of any medical or other difficulties, and no mention was made of any such reasons preventing her participating at the relevant time.”

He added: “The foregoing consideration will also apply to the Appellant’s submissions that she was unable to participate due to being placed under undue pressure and imbalance. Again, no evidence has been provided to support this ground. The Appellant chose to attend the Hearing without legal representation and participated in discussions. Had she been uncomfortable in so doing she could have withdrawn from these discussions and advised the Tribunal as an impartial body accordingly.”

The sheriff concluded on Article 6 ECHR: “The suggestion that access to justice was hindered by her lack of knowledge of the procedure and the mistaken view that she could not apply for recall, is misconceived. The Appellant was present at the Hearing and had chosen to do so unrepresented. She had the opportunity to raise questions of law and procedure with the Tribunal as an impartial body and chose not to do so. In these circumstances I am not satisfied that these grounds demonstrate that the Appellant was unable to participate meaningfully in the Hearing, and I do not consider that her Article 6 rights have in any way been demonstrably breached.”

Permission to appeal was therefore refused on each of the appellant’s grounds.