Housing damages action raised in wrong forum

Parker v Inkersall Investments Ltd [2018] SC DUM 66 (18 December 2018) was an action raised by tenants in the sheriff court for payment of damages in respect of alleged breaches by their landlord of the terms of an assured tenancy. The action was dismissed on the court's own motion that it did not have jurisdiction, jurisdiction for such actions having been transferred to the First-tier Tribunal for Scotland (Housing & Property Chamber) (FTT).

Although in this case the pursuer's solicitor had made some enquiries of the FTT, the information put to the FTT appeared to mischaracterise the nature of the claim and the solicitor was wrongly advised that the sheriff court was the appropriate forum.

The sheriff held that the primary responsibility lay with parties’ solicitors to satisfy themselves that the court had jurisdiction in respect of any particular litigation and the pursuers’ solicitors bore responsibility for selecting the correct forum in raising proceedings.

The pursuer was therefore found liable for the expenses of the cause but only up to the point of the options hearing. From that point on, the defenders had instructed a solicitor who moved for additional procedure at the continued options hearing rather than making a plea as to the competency of the action or seeking to abandon the counterclaim, thereby compounding the error.

As this case illustrates the possibility of misunderstandings about the extent of the FTT’s civil jurisdiction in relation to private rented housing cases, the sheriff has included a postscript to his note (see p 10 onwards) to assist potential FTT users in the event of difficulties in interpreting the extent of this jurisdiction.

Click here to view the sheriff's note.