England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHORDITCH COUNTY COURT
(HIS HONOUR JUDGE COTRAN)

		Royal Courts of Justice Strand London WC2 Friday, 14th December 2001

Friday, 14th December 2001

1. LORD JUSTICE SCHIEMANN: The background to this case is that judgment for possession was given in favour of the Council against Mr Driscoll in November 1996. Mr Driscoll applied very much later in 2001 to set the order aside. That application by Mr Driscoll failed before the district judge but succeeded before the circuit judge. We have had a good deal more material before us than either of those judges had available, the Council having meanwhile found a file which was previously unavailable.
2. Both the judges below very understandably dealt with the case on the basis that it was covered by the Civil Procedure Rules 1998 Part 39 which is headed "Failure to Attend the Trial". But, as Mr Robb drew to our attention (and we are very grateful to him for putting points on both sides of the argument since Mr Driscoll was not able to act for himself with the skill of a lawyer as things stand) to the case of White v Weston [1968] 2QB 647. This could be the basis of an argument that - in circumstances where one party to proceedings has not received notice of the time of any trial and the trial goes ahead in his absence and the position is, as it may be in this case, namely, that the absent party had given one address to the court to notify him and the court had sent the notification to another address so that his non-attendance was not his fault - the order should be set aside. It may be in those circumstances Part 39 has no application. Because if it did apply it would mean that all the conditions set out in 39(3)(5) had to be fulfilled, which is certainly a different set of circumstances from those which seem to have been envisaged by the judges in White v Weston. Whether that is the effect of the new rules or not is perhaps a matter for argument.
3. There is under the new rules the provision in Part 3, rule 10, which reads:

"Where there has been an error of procedure such as a failure to comply with a rule or practice direction -

(a) the error does not invalidate any step taken in proceedings unless the court so orders; and

(b) the court may make an order to remedy the error."

4. The error here seems, if the facts be as I have suggested they may be, an error on the part of the court and it may well be that the court has power to remedy the effects of its error under either this or some other provision of the Civil Procedure Rules in order to enable justice to be done. There is clearly a problem in relation to potential third parties, and I note that in White v Weston (at page 662) Sachs LJ says:

"Although in this particular case the distinction between anulity and an irregularity can have no practical consequences, I should perhaps add that to my mind cases may well arise where that difference could be of importance, and the point may have to be considered when execution has been levied or bankruptcy proceedings initiated against a defendant who, through no fault of his own, knows nothing of the proceedings, owing, for instance, to being for a period overseas."

5. Those are the sort of considerations which may need to be taken on board when it is decided in precisely what form the application to set aside should be lodged, which particular rule, or whether under some general principle of justice.
6. I have given this short judgment in an attempt to indicate to the judges why we have decided to act as we have. It does seem to us, and I think all the parties agree, that it is desirable that all matters should be dealt with at the same time before the same judge because they clearly interact. Mr Driscoll has told us, very sensibly, that he is not interested in regaining possession of the property which has now been sold to somebody else, but he feel that a wrong has been done to him and he deserves compensation for that wrong. We do not express a view as to the correctness of his approach, but we could understand why he feels that way; and we consider it just that that complaint should be investigated.
7. LADY JUSTICE ARDEN: I agree. I would just like to add one observation. The overriding objective requires the court to deal with cases justly. It is clearly relevant to the exercise of this discretion that the court has given as full evidence as possible about the prejudice to the parties or to third parties which may result from making or not making the order which is sought. I make this observation so that it may be borne in mind by the parties when considering what further evidence to file or directions to seek from the county court judge to whom the matter is hereby remitted. With those observations I agree with the order that my Lord proposes for the reasons that he gives.
(Appeal granted; no order for costs).