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 court to exercise its discretion or whether he was entitled as of right after a trial, rather than judgment in default.
Held: Sir Anthony Clarke MR said: ‘The essential question is whether this is a situation to which CPR39(3) applies. So far as we are aware there is no case in which the rule has been held to apply where the defendant has not been served with proceedings in accordance with the CPR and is ignorant of them
. . We do not think that the draftsman of the CPR can have intended to introduce what the editors call the more stringent requirements of rule 39.3(5) into applications to set aside judgments irregularly obtained, in the sense of being obtained without service of the claim form in accordance with the rules. In our judgment, the whole of rule 39.3 contemplates a trial in the absence of a party who has been served under the rules or in respect of whom service has been dispensed with.’ That did not amount to a finding that a party was entitled to have judgment set aside as of right. If the claimant can show that there is no real prospect of his claim failing he should be able to retain his judgment. However a judgment might almost always be set aside in such circumstances. That should happen here.
Sir Anthont Clarke MR, Brooke, Waller LJJ
[2006] EWCA Civ 1252, Times 05-Oct-2006, [2007] 1 WLR 962, [2007] 2 All ER 407
Bailii
Civil Procedure Rules 39.3(5)
England and Wales
Citing:
CitedWhite v Weston CA 1968
A county court summons was purportedly served on the defendant at a previous address and he did not receive it.
Held: The court treated the case as one in which the defendant had not been duly served with process. Judgment was given against . .
CitedAkram v Adam CA 30-Nov-2004
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 . .
CitedLondon Borough of Hackney v Driscoll CA 16-Jul-2003
The defendant sought to set aside judgment entered in his absence.
Held: The right of a defendant to have set aside a judgment where he had not known of the proceedings did not necessarily apply where, as here, he had attended one hearing, but . .
CitedAl-Tubaishi v Aung CA 8-Jun-1994
If solicitors for one party know that the party being served is out of country, then service at his last known address is irregular. The procedure which allows deemed service is to be followed strictly. Stuart-Smith LJ: ‘Whether it is entirely right . .
CitedGold Ocean Assurance Ltd v Martin 1990
. .
CitedWillowgreen Ltd v Smithers CA 16-Feb-1994
Service was insufficient if the papers sent to an address at which defendant was never in fact present. A summons to be served by post had to go to an address where the person has a continuing presence. The case of White v West was applied . .
CitedThomas Bishop Ltd v Helmville Ltd CA 1972
The court considered what was to be understood by a judgment which had been regularly obtained. Orr LJ (dissenting): ‘the point of time to be looked at in deciding whether the judgment was regularly obtained is the time when the judgment was given . .
CitedCranfield and Another v Bridgegrove Ltd; Claussen v Yeates etc CA 14-May-2003
In each case claims had been late in being served and extensions in time were sought and refused.
Held: The recent authorities were examined. The words ‘has been unable to serve’ in CPR 7.6(3)(a) include all cases where the court has failed to . .
CitedRegency Rolls Ltd and Another v Carnall CA 16-Oct-2000
The court considered what was meant by ‘act promptly’ in the Rule.
Held: Dictionary definitions were considered by both Arden LJ and Simon Brown LJ – ‘with alacrity’ or ‘all reasonable celerity in the circumstances’. The court no longer has a . .
CitedHashtroodi v Hancock CA 27-May-2004
The claimant had issued proceedings in time, but then the limitation period expired before it was served, and in the meantime the limitation period had expired. The defendant appealed against an automatic extension of time for service granted to the . .
CitedE D and F Man Liquid Products Ltd v Patel and Another CA 4-Apr-2003
The rules contained two occasions on which a court would consider dismissal of a claim as having ‘no real prospect’ of success.
Held: The only significant difference between CPR 24.2 and 13.3(1), is that under the first the overall burden of . .
CitedVinos v Marks and Spencer plc CA 2001
The appellant claimed personal injuries. His solicitors issued a claim form within the limitation period, but only served it after the expiry of the four month period after the date of issue within which CPR 7.5 stipulated that the claim had to be . .

Cited by:
CitedTombstone Ltd v Raja and Another; Raja v Van Hoogstraten and others (No 9) CA 17-Dec-2008
The claimant complained of an irregularly obtained judgment. The defendant had obtained an amendment to a writ of sequestration in the course of a bitterly fought dispute bewteen the defendant and the owner of the claimant. The judge had found the . .
See AlsoNelson and Another v Clearsprings (Management) Ltd CA 20-Dec-2006
. .
CitedForcelux Ltd v Binnie CA 21-Oct-2009
Forcelux and Mr Binnie were the landlord and tenant of a flat in Lincoln. Under the lease, the tenant was obliged to pay ground rent and other charges. The lease contained a forfeiture provision in the event of non-payment of rent or charges. Mr . .
CitedGrimason 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 . .

These lists may be incomplete.
Updated: 31 January 2021; Ref: scu.245068