A tenant wanted to defend a possession claim brought by his landlord for rent arrears. Having discharged the arrears, he was told by court staff that he need not attend the hearing. He didn’t and the possession order was made in his absence. he sought to set it aside, asking for a re-trial. That application was dismissed but he appealed.
Held: His appeal succeeded. The court set out the applicable principles. Jenkins LJ mentioned three factors which he regarded as ‘some of the main considerations’ that a judge exercising a discretion whether or not to re-instate struck-out proceedings should take into account.
The court should consider why the litigant had failed to appear, referring to ‘the undisputed statement of the tenant . . that his absence was due to the wrong advice . . from one of the officials of the court’ The official had ‘unwittingly misled him’. Second, the court should consider any undue delay by the absent party in seeking re-instatement. Third, the court should ask itself whether the other party would be prejudiced by the re-instatement of the proceedings. Morris LJ and Roxburgh J agreed.
Morris LJ,: ‘it seems to me that the tenant showed a very compelling explanation for his non-attendance at the hearing . . He had never been heard: his case had never been before the judge. This was not the fault of the landlord; but in the particular circumstances the tenant had this rather unusual but satisfactory explanation, the accuracy of which was apparently not doubted. That being so, is seems to me that, in the absence of some very good reason, the application for a new trial should have been acceded to; and I think further that, in the absence of some such good reason, not to accede to the application involved proceeding on a wrong principle in such as way as to amount to an error in law.’ and ‘ . . if . . it is quite manifest to a judge that there is really nothing to be tried, or if there are some special circumstances which make it clear that on a rehearing the same result as that already announced must again be reached, then it may well be that a judge could refuse an application.’
Jenkins LJ also referred to ‘a more debatable point’, namely, ‘how far the judge should consider the prospects of success’ of the party applying for the re-instatement of the proceedings, saying: ‘ . . a new trial should seldom, if ever, be refused merely on the ground that the applicant’s case appears to be a weak one . . ‘ and ‘ . . common justice demands, so far as it can be given effect to without injustice to other parties, that that litigant who is accidentally absent should be allowed to come to the court and present his case . . ‘
Jenkins LJ, Morris LJ and Roxburgh J
[1953] 1 QB 408, (1953) 1 All ER 350
England and Wales
Cited by:
Cited – Gaydamak and Another v UBS Bahamas Ltd and Another PC 28-Feb-2006
(Bahamas) The appellant sought re-instatement of their case which had been struck out for their non-attendance at the hearing. The court had said it would not be listed.
Held: Where a blameless absent litigant whose case has been struck out is . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 16 November 2021; Ref: scu.240167