Tibbs v London Borough Of Islington

A judgment obtained in a defendant’s absence should be set aside where there is a real issue to be tried and a substantial argument on the merits. The court need not decide whether the absent defendant would ultimately succeed. A distinction between a final judgment and permission to enter judgment does not alter the analysis where the substance is the same. In the circumstances, counsel’s ostensible authority to consent to setting aside the order could not be displaced by a later allegation that the consent contravened instructions.

This was an application for permission to appeal from Burnton J’s order of 4 October 2000. Burnton J had set aside a final injunction granted by Astill J in the applicant’s favour when the council was absent and had not disputed the claim, and had transferred the underlying boundary issue to the Central London County Court. Earlier, Richards J had made no order on the return date, partly because the merits were uncertain and partly because an application under section 149 of the Highways Act had been suggested. The central issues were whether the form of Astill J’s order, and counsel’s consent before Burnton J, affected the decision to set it aside.

Permission to appeal was refused.

1. The injunction judgment had been obtained in the council’s absence, while a real issue remained to be tried concerning whether the wall stood on the applicant’s land or on the highway. The council had a substantial argument on that issue. Whether it would ultimately succeed on the merits was irrelevant to the question whether the judgment should be set aside.
2. The distinction between an order giving permission to enter judgment and a final judgment made no material difference. In either form, the substance was a judgment obtained without the defendant’s participation and without determination of the real dispute. Burnton J was therefore right to set it aside and transfer the issue for determination in the County Court. His order requiring the council to pay the substantial costs was favourable to the applicant.
3. Counsel who appeared before Burnton J had ostensible authority to consent to the order being set aside. The Court of Appeal could not investigate the allegation that counsel had acted contrary to instructions. The consent consequently stood, and the only remaining issue before Burnton J was costs, which he resolved in the applicant’s favour.

There was no realistic prospect of the full court allowing an appeal. Permission was accordingly refused.

1. Court of Appeal (Civil Division): refused permission to appeal.
2. High Court (Burnton J): set aside Astill J’s order granting an injunction and transferred the underlying issue to the Central London County Court.
3. High Court (Astill J): granted a final injunction when the council did not attend and did not dispute the matter.