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Set-aside or Appeal?


Islington LBC v Cecil and Grace Markland, Clerkenwell and Shoreditch County Court, 17/07/2010

The issue of whether a first hearing in a possession claim could be properly considered to be a trial came up in Forcelux Ltd v Binnie [2009] EWCA Civ 854 – our report here. The Court of Appeal held that, with possible exceptions, the first hearing was not a trial, and a decision at first hearing could be set aside under the case management powers in CPR rule 3.

This County Court appeal case is interesting as it raises the question of where the boundaries of the exceptions in Forcelux v Binnie may be.

Briefly, Islington brought a claim for possession against Mr M. He and Mrs M had been joint secure tenants. The relationship broke down and after leaving the property, Ms M served a Notice to Quit in May 2009. She applied to Islington for rehousing. There were disputed allegations of domestic violence.

At first hearing, Mr M handed in a pro-forma defence which said, in effect, that he had not been given a fair hearing by Islington and that he had a public law defence. The District Judge did not ask Mr M to elaborate on his defence, but held that there was no defence, the joint tenancy having been lawfully determined by Mrs M. A possession order was made, together with a judgment on supposed rent arrears, asserted without evidence by Islington (and the amount of which was later conceded to but substantially wrong).

Mr M applied to set aside the possession order on the basis of Forcelux v Binnie, and filed a full public law defence. A different DJ heard the application, held that he had no power to set aside and the appropriate route was an appeal via CPR 52. Permission to appeal granted.

On appeal, the Circuit Judge granted the appeal against the possession order and gave case management directions, but dismissed the appeal against the second decision on the set aside application.

This is a County Court case, but potentially interesting in ramification.

Para 33 and 34 of Forcelux v Binnie set two ends of the spectrum of initial possession hearings:

33. If the first option – deciding the claim – is adopted it can only be because the judge considers that he is able to decide the case on the evidence before him. In an exceptional case, it may be that he could, then and there, conduct a hearing on the merits. Thus, suppose his list has collapsed and he has half a day spare; suppose both sides are present and represented; and suppose that both sides have all their evidence available and agree that the matter should proceed. In these circumstances, the hearing could properly be called a trial. The judge would in effect be exercising his case management powers and bringing forward the trial to the date of the hearing.

34. But that would be an exceptional sort of case. The more usual sort of case, in a busy possession list with perhaps 5 to 10 minutes allowed for each case, will be an undefended case where the defendant, if he attends at all, has nothing to say. The judge will look at the evidence from the claimant – probably all the evidence there is – and make a determination and decision: he will satisfy himself that the case is made out on the claimant’s evidence and satisfy himself that any necessary statutory requirements are fulfilled; he will make a possession order (suspended or not as the case may be).

Mr M’s case falls neatly in between these two. He attended and attempted at least to maintain that he had a defence. But his defence was not explored and no case management directions were given. Instead a possession order was made. So should a set aside application have been a possibility – or at least open to the Court – rather than just the route of appeal under CPR 52?

As a point of comparison, I thought about Southwark LBC v Jackson and Jackson, Lambeth County Court 27 January 2009 (pre-dating Forcelux). In that case, the court was prepared to set aside a possession order on the basis of invalidity of the Notice to Quit. This was a point not raised at the possession hearing, which D did not attend. The set aside was under CPR 3.1(7). So there is no doubt that a defence raised only at the time of the set aside application can lead to a set aside.

The difference here appears to be that the Defendant attended first hearing and at least attempted to put forward a defence, but that the DJ considered that there was no valid defence possible to a claim based a joint tenant’s Notice – Monk, again.

The invalidity of the notice to quit in Jackson was a factual issue, so amenable to a set aside. Whether a defence to a Monk claim was possible or not was a question of law. So the question should perhaps be whether a decision in a first hearing of a possession claim which is a decision on law, not facts, is amenable to set aside under the Forcelux v Binnie principle. In my provisional view, it isn’t.

Of course, this does present practical problems for any solicitor trying to work out what happened at a first hearing where the tenant attended and came away with a possession order, at least where it was a summary claim. Did the tenant say enough to arguably raise the possibility of a public law defence? If so, did the Court consider it? Difficult to work out, but then it may be necessary in order to decide between a set-aside application or an appeal.

Our thanks to Robert Latham for the case note.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.


  1. Timothy Waitt

    I was the advocate in Southwark LBC v Jackson and Jackson, Lambeth County Court 27 January 2009. The CPR rule 3.1(7) power is not a simple substitute for an appeal under CPR Part 52. The key case on the exercise of this power is Stephen Edwards v (1) Paul Golding (2) Simon Darby (3) Nicholas Griffin (2007) [2007] EWCA Civ 416 where the court of appeal endorsed earlier comments that:

    …for the Court to revisit one of its earlier orders, the Applicant must either show some material change of circumstances or that the judge who made the earlier order was misled in some way…as to the correct factual position before him…If all that is sought is a reconsideration of the order on the basis of the same material, then that can only be done, in my judgment, in the context of an appeal.”

    It is clear in this case that what the court was being asked to do was to reconsider the order – effectively an appeal.

    Forcelux Ltd v Binnie was specifically dealing with the set-aside provision for failure to attend trial and pointed out that the specific CPR 39.3 (3) power to set aside an order for non-attendance at trail was limited to “to a trial”. In this case as is immediately apparent it mattered not that the decision was made at a “trial” or at some other hearing. The court was being asked merely to re-consider the earlier decision and so, as by the above case it had no power to do so.

  2. NL

    I agree completely. CPR 3.1(7) is not a substitute for a CPR 52 appeal. As I suggested above, what was at issue in this case was a specific decision (even if the decision was in part whether a purported defence had legs)and not challengeable on error on factual position grounds. An appeal is the logical route.


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