Upper Tribunal refuses tenant permission to appeal eviction and rent arrears orders

About this case:

• Citation:
  2026UT83
• Judgment:
  External link
• Court:
  Upper Tribunal for Scotland
• Judge:
  Sheriff George Jamieson

Sheriff George Jamieson held that the First-tier Tribunal had been entitled to determine the applications at a case management discussion without fixing an evidential hearing on the tenant’s allegations of harassment and intimidation. He also held that dismissal of earlier sheriff court proceedings for lack of jurisdiction did not prevent the landlords from raising fresh proceedings before the correct tribunal.

The Upper Tribunal nevertheless observed that there “may well be an arguable point of law” concerning the suspension of enforcement while an application for permission to appeal is being considered, although that issue had become academic following refusal of permission.

The respondents, Norman Brown and Anna Bisset, were represented by Harper MacLeod LLP.

Eviction and arrears orders

Tomasz Gorecki occupied the property under a short assured tenancy which began in July 2010. The rent was initially £425 per month and had increased to £500 by the time he fell into arrears in March 2024. Following a case management discussion in February 2026, the First-tier Tribunal granted the landlords an order for possession and a separate order requiring Mr Gorecki to pay £9,350 in rent arrears.

The FTS held that the notice to quit and section 33 notice had been validly served and that the landlords had complied with the applicable pre-action requirements. It considered eviction reasonable because no rent had been paid from September 2024, the landlords intended to sell the property once they recovered possession and relations between the parties had broken down.

Mr Gorecki maintained that the tribunal had failed to consider allegations of harassment, intimidation, shouting through his window, kicking his front door, an attempted illegal eviction, disconnection of his gas supply and material obtained through a subject access request. He argued that the tribunal had repeatedly interrupted him, prevented him presenting his case and failed to consider relevant evidence. He also alleged errors concerning landlord registration, res judicata and abuse of process, and maintained that the tribunal had relied on unsupported statements by the landlords while ignoring objective material.

The FTS refused permission to appeal. Mr Gorecki then applied to the Upper Tribunal in relation to both the eviction and rent arrears decisions. Sheriff Jamieson noted that there is no right of appeal against an FTS decision itself refusing permission. Where permission is refused below, the Upper Tribunal instead considers the application for permission afresh.

Harassment allegations did not require hearing

The Upper Tribunal held that the FTS had not acted unfairly by deciding the applications without an evidential hearing on Mr Gorecki’s allegations of harassment. The FTS had recorded his remarks about harassment, intimidation and gas disconnection but considered them vague and unsupported by specification or evidence. The essential matters relevant to possession and rent were not disputed: the tenancy had been validly terminated and the rent arrears were admitted.

Sheriff Jamieson held that the tribunal had been entitled to conclude that an evidential hearing on the harassment allegations was unnecessary to dispose of the applications justly. He said the decision whether to adjourn or fix a further hearing fell within the FTS’s case-management powers. The tribunal was entitled to find that vague and unsubstantiated allegations did not constitute a stateable defence to non-payment of rent.

Mr Gorecki also argued that the new FTS proceedings were barred because the landlords had previously raised proceedings in Livingston Sheriff Court which were dismissed for lack of subject-matter jurisdiction. The Upper Tribunal rejected that contention. A court had inherent jurisdiction to determine the limits of its own jurisdiction, and dismissal on the basis that proceedings had been brought in the wrong forum did not create res judicata.

Sheriff Jamieson said the rule in Henderson v Henderson requiring parties to bring forward their whole case in one action had no application. The legal consequence of dismissal for lack of jurisdiction was simply that the applicants had to raise their case in the correct forum. The tribunal therefore committed no error by entertaining the landlords’ subsequent applications.

Landlord registration no defence to rent

A further ground concerned the registration status of one of the landlords.

Mr Gorecki argued that an alleged failure to comply with landlord registration requirements affected the landlords’ ability to recover rent. The Upper Tribunal held that this was incorrect. Even if the second respondent had not been registered as a landlord, that did not itself provide a defence to liability for rent.

Sheriff Jamieson referred to section 94(3) of the Antisocial Behaviour etc. (Scotland) Act 2004. A notice under that provision can have the effect that no rent is payable during a specified period, but there was no suggestion that such a notice had been served in the present case. The FTS had also correctly relied on AB v CD, in which it was held that breaches of landlord registration requirements did not affect the tenancy contract itself.

There was therefore no arguable error in the conclusion that the rent remained payable. The Upper Tribunal also rejected Mr Gorecki’s allegation of apparent bias. Applying the test in Porter v Magill, Sheriff Jamieson held that no fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the FTS had been biased against him.

Possible issue over enforcement

The only point which caused the Upper Tribunal some concern concerned Mr Gorecki’s attempt to suspend enforcement of the orders while permission to appeal was being considered. The FTS had stated that such a request was not competent because its orders could not be enforced while an appeal was pending if permission were granted.

Sheriff Jamieson said that proposition was “not necessarily accurate” and that the FTS may have misunderstood what Mr Gorecki was seeking. He explained that the 30-day protection against enforcement under rule 41(2) of the First-tier Tribunal rules does not necessarily continue while the FTS or Upper Tribunal is considering an application for permission to appeal.

An application to suspend enforcement can be made to the Upper Tribunal under rule 7(3)(n) of the Upper Tribunal for Scotland Rules of Procedure 2016 and may be necessary to prevent an otherwise lawful eviction during the appeal process. The tribunal declined to express a concluded view on the competency of Mr Gorecki’s application, citing the “complex interplay” between the enforcement provisions and the absence of competing submissions on the issue.

Sheriff Jamieson said there “may well be an arguable point of law” concerning the matter. However, it had become academic because permission to appeal against the underlying possession and payment orders was being refused, and Mr Gorecki had not made an application to the Upper Tribunal itself to suspend enforcement.

As none of the grounds directed at the original FTS decisions disclosed an arguable error of law, permission to appeal was refused. The decision is not itself subject to a right of appeal, although Mr Gorecki may apply within 14 days for reconsideration of the permission decision at a hearing.