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Hackney London Borough Council v Driscoll, Court of Appeal, 16 July 2003

22 July 2003
The issues

CPR Part 39.3 – Failure to attend Trial – Setting Aside Judgment

The facts

The London Borough of Hackney brought a Possession Action against the Defendant. The Claim Form was served on the Defendant at the premises but he was no longer living there having rented the premises out. The Defendant became aware of the proceedings however and participated in them attending Hearings in August 1996. A Trial Date was fixed. Notice was sent to the Defendant once again at the premises. He did not attend the Trial and a Possession Order was made in his absence. Eventually (the Defendant being in hospital care, and there being subsequent difficulties in locating the case number) the Defendant applied for an Order setting aside the Possession Order in January 2001. A District Judge refused to set aside the Possession Order as did the Judge on appeal both on the basis that the Defendant would not have had a reasonable prospect of success if the matter was retried. The Defendant appealed to the Court of Appeal arguing that White v Weston applied namely where a party had been absent from Trial because he had not been notified of a Hearing date the Judge was not bound to take into account the criteria set out in CPR 39.3 and Judgment should be set aside as of right. [CPR 39.3 deals with failure to attend Trial. CPR 39.3(5) reads “Where an Application is made ÷÷.. 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 his power to enter Judgment ÷.. (b) had a good reason for not attending the Trial ÷.. (c) had a reasonable prospect of success at the Trial”] The decision

1. Once a Defendant knew of proceedings and participated in them the Court had jurisdiction. The District Judge had been right to distinguish White v Weston on this basis – White v Weston being a case where no service had been affected and the Defendant had been wholly unaware of proceedings.

2. It was appropriate therefore to apply CPR 39.3 (5).

3. Both criteria did not offend any fundamental principal of justice or any principal of Strasbourg Jurisprudence. Appeal dismissed.

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