An application had been made to set aside a possession order obtained by a social landlord and determined by a district judge who applied CPR3.1 (7), when setting the possession order aside. By the time the landlord’s appeal against that decision was heard, the decision in Forcelux was available and the circuit judge held that while it was a matter for the discretion of the court whether to apply the requirements of CPR 39.3 to an application under CPR 3.9, the district judge was not required to take into account whether Mr Findlay had acted promptly or had a good explanation for not attending the hearing or had a reasonable prospect of success at trial. The court was asked whether the matters listed in CPR 39.3(5) are highly relevant factors to be taken into account when the court is asked by a tenant to exercise its discretion to set aside a possession order made in his absence.
Held: The court should normally apply the provisions of Rule 39.3(5) by analogy, even if they do not strictly apply in a case where judgment was given at a hearing which was not a ‘trial’.
Arden LJ said: ‘Thus in my judgment, in the absence of some unusual and high compelling factor as in Forcelux a court that is asked to set aside a possession order under CPR.3.1 should in general apply the requirements of CPR 39.3 (5) by analogy. This is in addition to, and not in derogation of, applying CPR.3.9 by analogy, as this court did in Forcelux as that provision requires the court to have regard to all the circumstances in any event. However, in my judgment, for the reasons given above, in the absence of the unusual and compelling circumstances of a case such as Forcelux this court should give precedence to the provisions of CPR39.3(5) above those enumerated in CPR.3.9.’
Judges:
Arden, Wilson, Toulson LJJ
Citations:
[2011] EWCA Civ 8, [2011] HLR 15, [2011] NPC 7, [2011] PTSR 1356, [2011] CP Rep 18
Links:
Statutes:
Jurisdiction:
England and Wales
Citing:
Cited – Mountain v Hastings CA 16-Apr-1993
The tenant disputed the effect of a notice to quit. Paragraph 3 of the form read: ‘The landlord intends to seek possession on grounds . . in Schedule 2 to the Housing Act 1988, which reads: Give the full text of each ground which is being relied on. . .
Cited by:
Cited – Pritchard and Others v Teitelbaum and Others ChD 20-Apr-2011
The claimants sought orders allowing them to re-enter the tenanted properties after eviction in order to allow them recover their possessions left behind. Proceedings for recovery of possession had continued over several years.
Held: The . .
Cited – Grimason v Cates QBD 26-Jul-2013
The claimant tenant appealed against frfeiture of her leas saying that she had not received any notices. The parties disputed whether the addresss was the usual or last known address, and also that the forfeiture gave the landlord an unjust . .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant, Civil Procedure Rules
Updated: 31 August 2022; Ref: scu.428065