Comments on: Applying to set aside possession, or when is a trial not a trial?

By: NL

NL — Fri, 05 Feb 2010 07:25:39 +0000

Denis, I have no idea at all. But interestingly Rule 52.3 refers specifically to a permission to appeal ‘hearing’.

But can one apply to set aside an order refusing permission to appeal resulting from a hearing? Rule 52.3(4B) means that there can be no application to set aside an order that a person seeking permission may not request an oral hearing, but that refers to Rule 3.3(5) – an order made on the Court’s own initiative – which an order out of a permission hearing isn’t.

Unless your client went under a bus, I don’t fancy their chances much on either 3.1 or 39.3, though.

By: Denis

Denis — Fri, 05 Feb 2010 02:42:35 +0000

My pro-bono client did not turn up to his hearing on permission to appeal a county court judgment. Am I correct in assuming that this hearing was a trial and therefore the joys of CPR3.1 are unavailable to him? I must say I don’t fancy his chances on CPR39.3. Thanks.

By: michael paget

michael paget — Fri, 11 Dec 2009 11:05:50 +0000

Don’t fall into either category which is why it has taken me a while to catch on. Now using it to avoid criticism of judge’s decision under 39.3 bypassing with de novo hearing using CPR 3

By: Rudy

Rudy — Thu, 05 Nov 2009 21:42:36 +0000

My point exactly: 39.3 closely fetters the court’s right to even consider the exercise of the discretion to set aside, perhaps understandably given that it was aimed at those missing “The Trial” (after a lengthy process presumably in which directions and preliminary orders had all been made), rather than those not turning up to a first hearing. One’s client can now be more dilatory than before and yet, if their defence is strong enough, they still have a fair chance of getting the order set aside, because the discretion will be available to exercise regardless.

I’m just a bit surprised – judging by the meagre number of comments – that more of your erudite and knowledgeable readership aren’t more excited by this development. Or am I just (a) in need of a richer and more fulfilling life or (b) reading too much into this decision?

By: NL

NL — Mon, 02 Nov 2009 23:35:04 +0000

Rudy, while ‘acting promptly’ and ‘good reason’ for not being at trial are still factors to be considered, they are factors in the exercise of a discretion, rather than requirements to be met before the discretion can even be considered. So, not things of the past, but not absolute hurdles anymore either.

I agree, this does potentially make quite a difference, which is why I tried to flag it up as being significant for all possession cases, not just leases. Given the struggles I’ve had with CPR 39.3 in the past, it makes me happy, certainly.

By: Rudy

Rudy — Mon, 02 Nov 2009 21:54:32 +0000

This case represents perhaps the biggest upset to many advisers’ procedural assumptions for some time – well, certainly mine, and clearly also those of many involved in this case. It depends on the principle being extendable to all possession hearings where a properly tenable defence could be brought: I don’t see why it should not be.

Instead of grappling with CPR 39.3′s tricksy hurdles, tenants’ and mortgagors’ solicitors, whose clients had a fair defence, should find it much easier to set aside orders that should never have been made in the first place, and probably would never have been if the defendant had only turned up. Will trying to find a sufficiently convincing “good reason” for not attending the possession hearing; and trying to explain why one’s client’s version of acting “promptly” is not the same as most fully-awake people’s (funding and appointment-making delays notwithstanding)become things of the past?

It should give the district bench a wider discretion to overturn possession orders, which given the encouragement of well-drafted applications supported by good evidence, many may well want to use. The repercussions will take a while to filter through, and many DJs may not be aware of this one for a while. So go out there and tell ‘em…