Andrew Stevenson

Déjà vu would befall Josef were he to be reincarnated as a private landlord in Scotland a century later and having to go in search of a legal remedy. He might find it inauspicious that the Scottish government created a minister for tenants’ rights but none for his.

More two-tier treatment would lie in store should Josef decide to sue if his tenant had damaged his property or refused to pay rent. Josef would be excluded from the Sheriff Court and compelled to navigate his way through the labyrinth of the First Tier Tribunal (Housing Chamber). It has an all-Scotland jurisdiction over all “civil proceedings arising from a private residential tenancy”, including claims that have nothing to do with evicting anybody.

Registered social landlords still have access to their local Sheriff Court, as they always have. On a recent visit to Selkirk Sheriff Court, I felt almost nostalgic while observing the calling of a housing association case. So simple, so clear.

The sheriff clerk will conduct a rudimentary check of jurisdiction and competency. If the action is defended, a timetable is issued, the defender states his case and the court will rule on the merits. It is usually clear from an early stage whether the case is defended and, if so, why and how. Importantly, everyone knows when the case will call again. The path may not always be short, but at least it is clearly signposted.

Actions for payment only are generally not discretionary and if undefended, a decree is granted administratively, without any callings or enquiry. This is all consistent with the Sheriff Appeal Court’s direction in 2018 that “It is not the sheriff’s function to advocate the cause of the defender who chooses not to contest the claim.” Alas, Josef would find that the First Tier Tribunal is wholly different, and his experience would be far more akin to his bewilderment in The Trial. The online route followed by his Tribunal application is unscheduled. No deadlines, time limits or timescales are issued at the outset. No solicitor could advise him of when he might get an initial calling, let alone a judgment. Emails seem to prioritise the warning that “Tribunal staff are not qualified or permitted to provide legal advice”.

His claim, even a simple application for payment of rent arrears or damage for a ransacked kitchen, would go into a queue to be sifted for prima facie merits and sufficiency of evidence. Josef would find, perhaps months later, whether his application had been accepted. If so he would be told that it would proceed to a Tribunal for determination, and a further long wait would ensue. There would eventually be a written statement of the Tribunal’s decision.

Josef might wonder why the First Tier Tribunal is not sufficiently resourced so it can work to a clear and stated timetable. He might be perplexed as to why it cannot grant undefended payment applications without enquiry and why time and energy is spent on issuing written decisions in relation to such actions instead of prioritising resources on getting cases such as his through the system. If this is the future of litigation in general, it is truly Kafkaesque.

Andrew Stevenson is secretary of the Scottish Law Agents Society​. This article first appeared in The Scotsman.