Cedar Holdings Ltd v Ray & Anor

Under CPR r 39.3(5), the court may set aside an order made in a party’s absence only if the applicant satisfies all the stated conditions. The requirement that the applicant acted promptly is a condition of jurisdiction, rather than merely a factor in a general discretion. Acting promptly includes making the appropriate application to the court, although the precise standard depends on the circumstances. A party who waits several years after learning of the order cannot satisfy that condition merely because other steps were taken in the meantime. This strict result reflects the need for finality in judgments.

The claimant had obtained a suspended possession order against the defendants in 1992. In 2001 Mrs Ray applied under CPR r 39.3 to set it aside, alleging that her signature on the legal charge had been forged and that neither defendant had attended the original hearing.

A district judge set aside the possession order. On appeal, His Honour Judge Barry reinstated it, holding that Mrs Ray had not acted promptly. The Court of Appeal considered whether a second appeal could be entertained and, if so, whether steps taken to maintain instalment payments could amount to acting promptly without a prompt application to the court.

1. Permission and outcome. This was a proposed second appeal. Under CPR r 52.13, permission could be granted only by the Court of Appeal, and only if the appeal raised an important point of principle or practice or there was another compelling reason to hear it. The county court judge’s permission was therefore ineffective. Permission had also been refused on paper by Pill LJ. The application was refused, with no order for costs.
2. Construction of CPR r 39.3(5). The words providing that the court may grant an application “only if” the applicant satisfies the listed conditions impose mandatory preconditions. If the applicant did not act promptly, the court had no power to set aside the order. This differed from CPR r 13.3, where promptness is a matter to which the court must have regard in exercising a discretionary jurisdiction.
3. Meaning of acting promptly. In context, acting promptly includes, although it may not be limited to, making the appropriate application to the court promptly. The court rejected the submission that securing payment of instalments could itself amount to acting promptly while postponing the application.
4. Application to the facts. Mrs Ray accepted that she knew of the possession order by 28 March 1995, but did not apply to set it aside until June 2001. A delay of six years and three months was plainly inconsistent with the word “promptly”, which was not equivalent to “reasonably”. The judge was correct to conclude that the condition was not satisfied and that the proposed appeal had no real prospect of success.

• Huddersfield County Court: A possession order was made in 1992 and later suspended on instalment terms.
• District Judge Harrison: On 20 August 2001, the possession order was set aside under CPR r 39.3.
• His Honour Judge Barry: On 17 January 2002, the appeal was allowed and the possession order reinstated.
• Court of Appeal (Civil Division): Permission for the proposed second appeal was refused.