Kenny & Ors v Abubaker & Ors

Under CPR 27.11, a party seeking to set aside a judgment entered in the party’s absence must show a good reason for non-attendance and a reasonable prospect of success, subject to the applicable time requirement. A good reason is assessed by identifying the true reason for non-attendance and considering all the circumstances in the round. An honest or genuine explanation is not necessarily sufficient. The merits of the proposed defence are ordinarily separate from the good-reason inquiry, but may be relevant where the case is very close to the line. An appellate court should be slow to interfere unless the lower court erred in principle or was plainly wrong.

The respondents claimed repayment of a tenancy deposit and the statutory penalty under section 214(4) of the Housing Act 2004. Judgment was entered in the respondents’ favour when the appellant did not attend the hearing.

The appellant applied under CPR 27.11 to set the judgment aside, relying on an assurance that a co-defendant would deal with the proceedings. The District Judge refused the application. HHJ Grasse dismissed the appeal, holding that the application was out of time and that there was no good reason for non-attendance. The central issue before the Court of Appeal was whether that conclusion was wrong in principle or plainly wrong.

1. Appeal dismissed. The Court of Appeal agreed with the lower courts that the appellant had not shown a good reason for failing to attend or be represented at the hearing.
2. The court accepted that the time limit in CPR 27.11(2) could be extended under CPR 3.1(2)(a). HHJ Grasse was therefore wrong to conclude that the court had no power to extend time. That error did not affect the result.
3. The governing approach to “good reason” is that stated in Brazil v Brazil [2002] EWCA Civ 1135: the court should establish the true reason for non-attendance and assess, looking at the matter in the round, whether it is sufficient to justify setting aside the judgment. An honest or genuine reason is not automatically a good reason. The approach must give effect to the overriding objective.
4. The guidance in Estate Acquisition and Development Ltd v Wiltshire [2006] EWCA Civ 533 and Bank of Scotland Plc v Pereira [2011] EWCA Civ 241 confirms that the inquiry is fact-sensitive and that the appellate court should intervene only for an error of principle or plain wrongness. The conditions for relief remain distinct, including a good reason and a reasonable prospect of success.
5. The appellant’s reliance on the co-defendant’s assurance was unreasonable in view of their obvious conflict. His own defence, correspondence and failure to provide clear evidence supported that conclusion. The merits point based on Gladehurst Properties Ltd v Hashemi [2011] EWCA Civ 604 did not assist because the case was not close to the line, and there had been no appeal from the original decision on that issue.
6. The judgment under appeal was left undisturbed. Order: appeal dismissed.

1. Court of Appeal (Civil Division): Appeal from the order of HHJ Gillian Grasse dated 10 August 2011 dismissed. The court held that the District Judge’s refusal to set aside the judgment was not flawed in principle or manifestly wrong.
2. Edmonton County Court: HHJ Grasse dismissed the appellant’s appeal from District Judge Silverman’s refusal dated 25 June 2010.
3. Edmonton County Court: District Judge Silverman refused the application to set aside the judgment entered on 20 November 2009.