London Borough Of Hackney v Driscoll

Where a possession order was made in the absence of a party who may not have received notice through the court’s error, the court should investigate the appropriate jurisdiction and procedure for setting it aside. The case may fall outside Civil Procedure Rules 1998 Part 39, and the court may have power under Part 3, rule 10, or a general principle of justice, to remedy a procedural error. In exercising its discretion, the court should consider the fullest available evidence of prejudice to the parties and to third parties. Related applications should ordinarily be dealt with together by the same judge where their issues interact.

A possession judgment was entered for the London Borough of Hackney against Robert Driscoll in November 1996. In 2001, Mr Driscoll applied to set the order aside. His application failed before a district judge but succeeded before the circuit judge. On appeal, the Council produced a previously unavailable file. The central issue was whether the application was governed by Civil Procedure Rules 1998 Part 39, or whether the order could be set aside under White v Weston or another procedural or general jurisdiction where notice of the trial may have been sent to the wrong address.

1. Appeal granted. The Court of Appeal remitted the matter to a county court judge, with no order for costs.
2. The earlier courts had proceeded on the assumption that the matter fell under Civil Procedure Rules 1998 Part 39, concerning failure to attend trial. However, White v Weston [1968] 2 QB 647 indicated a possible basis for setting aside an order where a party received no notice of the trial, through no fault of his own, because notice was sent to an incorrect address. It was left open whether Part 39 applied in such circumstances and, if so, whether its conditions were materially different from the approach in that authority.
3. Where the court itself may have made a procedural error, Part 3, rule 10 of the Civil Procedure Rules 1998 provides a possible power to remedy the error. The Court also recognised that another procedural provision or a general principle of justice might provide the appropriate jurisdiction.
4. Issues concerning the setting aside of the order, the consequences of the property’s sale, and any claim for compensation interacted and should be investigated together before the same judge. The judge should consider full evidence of the prejudice to Mr Driscoll, the Council and any third parties resulting from making or refusing the order.
5. The Court expressed no view on the merits of Mr Driscoll’s proposed compensation claim or on the correctness of his approach.

• Shoreditch County Court: Judgment for possession was made in November 1996. A later application to set it aside failed before a district judge but succeeded before the circuit judge.
• Court of Appeal (Civil Division): The appeal was granted. The matter was remitted to a county court judge, with no order for costs.