Tombstone 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 irregularity proved, but declined to set the order aside. The claimant now said that the judge did not have a discretion not to set the order aside.
Held: The claimant knew of the fault in the order but had not complained of it at later hearings when that suited it.
The court’s inherent powers ‘are complementary to its powers under rules of court; one set of powers supplements and reinforces the other’. The court approved the statement that ‘the inherent jurisdiction may supplement but cannot be used to lay down procedure which is contrary to or inconsistent with a valid rule of the Supreme Court’. This applies in relation to the CPR in the same way that it applied when the previous rules, the RSC, were in force.
The intervener sought to set aside an order made which affected it as to the alleged irregularity of an order obtained.
Held: The primary objective was to obtain a just result. Applications to set aside orders made without notice were subject to rule 23.10. That rule gave a discretion to the judge. Where a third party was affected the normal consequence would be a setting aside of the order obtained, but where the interests of justice required it in an exceptional case, the order might not be set aside. The court’s inherent jurisdiction should not be used where the issue was covered by the rules, and it should not be used to obtain a different conclusion.
Mummery LJ, Dyson LJ, Maurice Kay LJ
[2008] EWCA Civ 1444, [2009] 1 WLR 1143
Bailii, Times
Civil Procedure Rules 23.9 23.10
England and Wales
Citing:
CitedGosset v Howard 1845
Sequestrators, as officers of the court who act under the order of the court, are entitled to immunity from suit. . .
CitedSmith v Sydney 1871
A sequestration order, while in force, was a valid order providing legal protection to those who had obtained it and acted upon it. The court made a distinction between acts of the court and the acts of the parties. . .
CitedIsaacs v Robertson PC 13-Jun-1984
(St. Vincent and The Grenadines) Where the point at issue before the Board was as to a point of procedure with no direct comparable provision in UK law, the Board of the Privy Council should be reluctant to depart from the interpretation set down by . .
CitedRegina v Collins; Pathfinder Mental Health Services NHS Trust and St Georges Health Care NHS Trust ex parte M S CA 3-Jul-1997
The hospital authorities applied ex parte and were granted a declaration which dispensed with the applicant’s consent to medical treatment.
Held: Her appeal was allowed. A declaration (especially one affecting an individual’s personal . .
CitedNelson 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 . .
Appeal fromRaja v Van Hoogstraten and others (No 9) ChD 26-Jul-2007
The court had set aside an sequestration order made following a finding of contempt when the contempt order was incorrectly made. The intervener which had been prejudiced by the sequestration order now sought to argue that the sequestration order . .

Cited by:
CitedAl Rawi and Others v The Security Service and Others CA 4-May-2010
Each claimant had been captured and mistreated by the US government, and claimed the involvement in and responsibility for that mistreatment by the respondents. The court was asked whether a court in England and Wales, in the absence of statutory . .

These lists may be incomplete.
Updated: 11 February 2021; Ref: scu.278823