COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MAYOR'S AND
CITY OF LONDON COUNTY COURT
HIS HONOUR JUDGE BIRTLES QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WILSON
LORD JUSTICE TOULSON
| LONDON BOROUGH OF HACKNEY
|- and -
Mr Sylvester Carrott (instructed by Messrs Hodge, Jones & Allen) for the Respondent
Hearing date : 13 October 2010
Crown Copyright ©
Lady Justice Arden:
"3.1 The court's general powers of management
(1) The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have.
(2) Except where these Rules provide otherwise, the court may-
(m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective.
(7) A power of the court under these Rules to make an order includes a power to vary or revoke the order.
3.9 Relief from sanctions
(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order the court will consider all the circumstances including-
(a) the interests of the administration of justice;
(b) whether the application for relief has been made promptly;
(c) whether the failure to comply was intentional;
(d) whether there is a good explanation for the failure;
(e) the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant pre-action protocol;
(f) whether the failure to comply was caused by the party or his legal representative;
(g) whether the trial date or the likely trial date can still be met if relief is granted;
(h) the effect which the failure to comply had on each party; and
(i) the effect which the granting of relief would have on each party.
(2) An application for relief must be supported by evidence."
"39.3 Failure to attend the trial
(1) The court may proceed with a trial in the absence of a party…
(3) Where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside.
(4) An application under paragraph (2) or paragraph (3) must be supported by evidence.
(5) Where an application is made under paragraph (2) or (3) by a party who failed to attend the trial, the court may grant the application only if the applicant-
(a) acted promptly when he found out that the court had exercised its power to strike out or to enter judgment or make an order against him;
(b) had a good reason for not attending the trial; and
(c) has a reasonable prospect of success at the trial."
"(2) On the making of an order for possession of such a dwelling-house on any of those grounds, or at any time before the execution of the order, the court may—
(a) stay or suspend the execution of the order, or
(b) postpone the date of possession,
for such period or periods as the court thinks fit."
"This order has been made on discretionary grounds"
Issue 1: Was Forcelux decided per incuriam and how should be discretion under CPR 3.1 to set aside a possession order made in the absence of a party be exercised?
"15. There is scant authority upon rule 3.1(7) but such as exists is unanimous in holding that it cannot constitute a power in a judge to hear an appeal from himself in respect of a final order. Neuberger J said as much in Customs and Excise Comrs v Anchor Foods (No 2) The Times, 28 September 1999. So did Patten J in Lloyds Investment (Scandinavia) Ltd v Ager-Hanssen  EWHC 1740 (Ch). His general approach was approved by this court, in the context of case management decisions, in Collier v Williams  1 WLR 1945. I agree that in its terms the rule is not expressly confined to procedural orders. Like Patten J in the Ager-Hanssen case  EWHC 1740 I would not attempt any exhaustive classification of the circumstances in which it may be proper to invoke it. I am however in no doubt that CPR 3.1(7) cannot bear the weight which Mr Grime's argument seeks to place upon it. If it could, it would come close to permitting any party to ask any judge to review his own decision and, in effect, to hear an appeal from himself, on the basis of some subsequent event. It would certainly permit any party to ask the judge to review his own decision when it is not suggested that he made any error. It may well be that, in the context of essentially case management decisions, the grounds for invoking the rule will generally fall into one or other of the two categories of (i) erroneous information at the time of the original order or (ii) subsequent event destroying the basis on which it was made. The exigencies of case management may well call for a variation in planning from time to time in the light of developments. There may possibly be examples of non-procedural but continuing orders which may call for revocation or variation as they continue—an interlocutory injunction may be one. But it does not follow that wherever one or other of the two assertions mentioned (erroneous information and subsequent event) can be made, then any party can return to the trial judge and ask him to reopen any decision. In particular, it does not follow, I have no doubt, where the judge's order is a final one disposing of the case, whether in whole or in part. And it especially does not apply where the order is founded upon a settlement agreed between the parties after the most detailed and highly skilled advice. The interests of justice, and of litigants generally, require that a final order remains such unless proper grounds for appeal exist. "
"67. In my judgment, this is a case for the exercise of the discretion in favour of Mr Binnie. Although, as I assume for the purposes of this appeal, that he had not acted promptly, his delay was not so long as to disentitle him from relief. The main factor in favour of granting relief is very strong, namely that Mr Binnie has a compelling case for relief from forfeiture and it is only because possession has been taken pursuant to the possession order that it can be said that he has lost his right to relief. The consequences of refusing to set aside the possession order would be that Mr Binnie would lose not a periodic tenancy at a rack rent, but a long lease at a ground rent. It would be no injustice to Forcelux to be deprived of the windfall that would otherwise accrue to it provided it received what it is entitled to under the Lease and its costs at least up to the end of the set-aside hearing before District Judge Hudson. I call it a windfall because, although Forcelux has a right under the Lease to forfeit it, the law regards that right as security for the observance of the covenants contained in it. Mr Binnie's default was a failure to pay a comparatively modest sum of money. Forcelux has been offered all that is necessary to compensate it for the breach of covenant which gave rise to the forfeiture."
Issue 2: Should the order of HHJ Birtles QC be set aside?
Lord Justice Wilson:
Lord Justice Toulson: