Source: All England Reporter
Publisher Citation: [2011] All ER (D) 149 (Jan)
Neutral Citation: [2011] EWCA Civ 8
Court: Court of Appeal, Civil Division

Arden, Wilson and Toulson LJJ

Representation Kerry Bretherton (instructed by Hackney Legal Services) for the authority.
  Sylvester Carrott (instructed by Hodge, Jones & Allen) for the defendant.
Judgment Dates: 20 January 2011


Landlord and tenant - Possession - Action for possession - Defendant falling into arrears of payment of rent to claimant local housing authority - Authority commencing possession proceedings - Possession order made in defendant's absence - Defendant applying to set aside or vary possession order - Judge setting aside possession order - Authority appealing - Whether discretion under CPR to set aside a possession order made in the absence of party should be exercised - Whether order of judge should be set aside - s 85(2) - CPR 3.1, 39.

The Case

Landlord and tenant Possession. The Court of Appeal, Civil Division, found that the circuit judge had erred in: (a) not concluding that the district judge's order should be set aside; and (b) in not re-exercising the discretion to determine the defendant's application to set aside a possession order made against him. Accordingly, the outstanding issues would be remitted. The court further found that the approach of the court in Forcelux Ltd v Binnie to the exercise of its discretion was per incuriam

Practice Areas

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