The mortgagor sought to appeal against a mortgagee’s possession order. The Court of Appeal considered the interaction between an application under CPR rule 39.3 to set aside a default judgment and an application for permission to appeal under CPR Pt 52.
Held: The dismissal of an application under CPR Rule 39.3 does not, of itself, give rise to an issue estoppel so as to preclude an appeal from the judgment which has not been set aside; though the fact that an application under CPR rule 39.3 has failed is a weighty, though not conclusive, consideration in determining an application for permission to adduce fresh evidence on appeal or for a retrial.
Lord Neuberger said: ‘In the great majority of cases, a judge hearing such an application should not allow oral evidence on the basis that he or she can properly (i) accept all the factual evidence given by the applicant, and allow the application, (ii) dismiss the application even on the assumption that all the applicant’s evidence is true, (iii) allow the application even though of the view that some of the applicant’s evidence is or may be untrue, or (iv) reject some (or even all) of the applicant’s evidence on the basis that it is inconsistent or inherently improbable, and accordingly dismiss the application.’
Judges:
Lord Neuberger MR, Lloyd and Gross LJJ
Citations:
[2011] 11 EG 102 (CS), [2011] 1 WLR 2391, [2011] EWCA Civ 241
Links:
Statutes:
Jurisdiction:
England and Wales
Cited by:
Cited – Hardy and Another v Haselden and Others CA 29-Nov-2011
The claimants had taken up occupation of a farm under an informal arrangement which they now said amounted to a tenancy for ther lives. The freeholder’s, personal representatives of the original grantors, appealed against a declaration accordingly. . .
Cited – WXY v Gewanter and Another QBD 30-May-2012
The claimant had obtained an injunction to restrain publication of what was private information. The third defendant now applied to set aside the judgment, saying that their application for an adjournment had been wrongly refused. He said that he . .
Cited – Kenny and Others v Abubaker and Others CA 23-Oct-2012
The defendant landlord sought to appeal against an order that he pay to the respondent tenants a penalty under the 2004 Act of three times the tenancy deposit. The court was now asked whether there was has any right to have set aside a judgment . .
Lists of cited by and citing cases may be incomplete.
Land, Civil Procedure Rules
Updated: 03 September 2022; Ref: scu.430464