Hackney v Driscoll

Where a party has notice of proceedings and has participated in them, failure to notify that party of the trial date does not give an automatic entitlement to set aside an order made in the party’s absence. The application is governed by the cumulative conditions in CPR 39.3(5). The applicant must act promptly, have a good reason for non-attendance, and show a reasonable prospect of success at a retrial.

The reasonable-prospect condition is compatible with fairness. It prevents a successful party from having to prove its case again where the absent party cannot realistically obtain a different result.

The defendant was the long leaseholder of a property mortgaged to the claimant local authority. Possession proceedings were served at the property after he had moved elsewhere. He knew of the proceedings and attended two procedural hearings, but the court’s later notice of the trial date was sent to the property. He did not attend, and an immediate possession order was made.

After the property had been recovered and sold, the defendant applied to set aside the possession order. District Judge Wright refused the application under CPR 39.3(5). Judge Marr-Johnson dismissed his appeal. On this second appeal, the central issue was whether lack of notice of the trial date gave the defendant an entitlement to set aside the order irrespective of his prospects at a retrial.

Appeal dismissed unanimously. Lord Justice Brooke gave the judgment, with which Lord Justice Kennedy and Mr Justice Holman agreed.

1. Once a defendant knows of proceedings and participates in them, the court has jurisdiction to make an order affecting that defendant. The case was therefore materially different from an alleged complete absence of notice of proceedings, where the defendant might be a stranger to them.
2. The application to set aside the possession order was governed by CPR 39.3(5). Its three conditions were cumulative. Promptness and a good reason for absence did not displace the requirement that the applicant show a reasonable prospect of success at the trial.
3. White v Weston [1968] 2 QB 647 concerned the fundamental defect caused by non-service of proceedings. It did not establish that a party who had participated in proceedings, but received no notice of a later trial date, was entitled to a rehearing regardless of the merits. The court expressly reserved the correct analysis for a person who had received no notice of proceedings at all.
4. The reasonable-prospect requirement did not offend fundamental justice or Strasbourg principles. It allowed the absent party to explain why the result might change, while protecting the successful party from the unnecessary cost of proving the case again where reversal was unrealistic.
5. The lower courts were entitled to find that, notwithstanding the defendant’s good reason for absence, he had neither acted promptly nor shown a reasonable prospect of avoiding an outright possession order. The order refusing to set aside the possession order therefore stood.

• Court of Appeal (Civil Division) — On a second appeal, dismissed the defendant’s appeal and upheld the refusal to set aside the possession order: [2003] EWCA Civ 1037.
• Mayor’s and City of London Court — On 15 October 2002, Judge Marr-Johnson dismissed the defendant’s appeal from District Judge Wright’s refusal to set aside the possession order.
• Mayor’s and City of London Court — On 7 February 2001, District Judge Wright refused to set aside the possession order made on 27 November 1996. An earlier circuit judge decision had been set aside and a rehearing directed, but its citation was not stated.