Draper v St Ermin's Property Co Ltd

Under CPR 39.3, an order made in a party’s absence may be set aside only where the applicant acted promptly, had a good reason for non-attendance and has a reasonable prospect of success. “Good reason” requires an assessment of all the evidence viewed in the round. A medical certificate will usually be critical evidence, but it is not an absolute precondition. Verified statements from the applicant and another witness cannot properly be rejected merely because they lack medical corroboration, particularly where the evidence has not been challenged in cross-examination and there is no proper basis for distrust. Where all three requirements are met, fairness ordinarily requires that the order be set aside and the dispute heard on its merits.

Mrs Draper appealed against orders dismissing her application to set aside a possession order made in her absence and requiring her to pay the landlord’s costs of a subsequent stay application. The possession proceedings concerned rent arrears, alleged disrepair, access for repairs and nuisance. The first appeal turned on whether she had a good reason for failing to attend the trial under CPR 39.3(5)(b), her reasonable prospect of success having been conceded. The second appeal concerned the exercise of the costs discretion on the stay application.

1. First appeal allowed. The order dismissing the application to set aside the Possession Order was set aside, and the Possession Order itself was directed to be set aside.
2. CPR 39.3(5) requires prompt action, a good reason for non-attendance and a reasonable prospect of success. The court must identify the true reason for non-attendance from all the evidence and assess whether it is sufficient in the round. An over-analytical approach is inappropriate.
3. Judge Zucker had wrongly rejected evidence of Mrs Draper’s disabling arthritic condition. Her evidence and her daughter’s verified evidence were not inherently incredible. Their attendance on other occasions and the absence of a medical certificate did not, without more, justify rejection. The evidence had not been tested by cross-examination, and there was no proper basis for treating either witness as unreliable.
4. A medical practitioner’s certificate is ordinarily critical and highly desirable, but its absence was not decisive on these facts. The court also emphasised that the previous judge’s decision to proceed was not a substitute for evaluating the fuller evidence before Judge Zucker.
5. As promptness and a reasonable prospect of success were established, and good reasons for non-attendance should have been accepted, there was no proper basis for refusing a fair hearing on the merits through the exercise of a residual discretion.
6. Second appeal allowed. The costs order concerning the stay application was set aside. The landlord had effectively conceded that a stay was appropriate, and its attendance to seek a payment-into-court condition was unreasonable because that condition would have stifled the appeal. No order was made for Mrs Draper’s own costs.

• High Court (Chancery Division): appeals from orders of His Honour Judge Zucker QC dated 7 April and 28 April 2003. Both appeals allowed.