The defendant sought to set aside a possession order made where he did not know of the proceedings.
Held: The judge had a discretion, not a duty, to set aside a possession order made in such circumstances. Human rights law required the court to allow a defendant a right to be heard, but if on such a hearing, the court found that he had no real prospect of success then that right was not infinged by a rule which allowed the judgment to stand. Under the pre-CPR practice there was a difference between an irregular judgment, which could be set aside as of right, and a regular judgment, where the defendant had to show that he had a defence on the merits before the court would be prepared to have the judgment set aside.
Judges:
Lord Justice Brooke Lord Justice Keene Lord Justice Parker The Vice President Of The Court Of Appeal (Civil Division)
Citations:
[2004] EWCA Civ 1601, Times 29-Dec-2004, [2005] 1 WLR 1762, [2005] 1 All ER 741
Links:
Statutes:
Civil Procedure Rules 6.5(6), European Convention on Human Rights 6
Jurisdiction:
England and Wales
Cited by:
Cited – Nelson and Another v Clearsprings (Management) Ltd CA 22-Sep-2006
The defendant did not appear at the trial and now appealed the judgment. The claim form and court papers had been served by post at the wrong address. The question was whether a defendant wanting to set aside a judgment was required to persuade the . .
Lists of cited by and citing cases may be incomplete.
Civil Procedure Rules, Human Rights
Updated: 27 June 2022; Ref: scu.220226
