Chun Hing Tse v Tulsense Limited

An appellate court reviewing a discretionary case-management decision exercises a review, not a rehearing. Intervention is justified for legal misdirection, procedural unfairness or irregularity, reliance on irrelevant matters, failure to consider relevant matters, or a decision plainly outside the range of reasonable disagreement.

Where a possession hearing was not a trial, relief under CPR 3.1(2)(p) should broadly follow the three conditions in CPR 39.3(5), but strict compliance may yield to the overriding objective. Promptness is assessed from awareness of the order, while delay before awareness and delay contributed to by the respondent may matter. Lack of awareness of the hearing may be a good reason. Acceptance of rent can waive forfeiture based on earlier arrears, and service obligations can make non-attendance and prospects of success arguable.

The appellant challenged a possession and forfeiture order made by District Judge Beamish in the County Court at Hertford on 19 June 2019, in his absence, which ended his long lease. After learning of the forfeiture in October 2022 and obtaining the order in March 2024, he applied before HHJ Murch in the County Court at Luton to set it aside under CPR 39.3 and CPR 3.1(2)(p), or to appeal out of time under CPR 52.15. Following his judgment of 16 January 2025 and order dated 21 January 2025, HHJ Murch dismissed the applications and ordered costs.

The appeal concerned the proper assessment of delay, good reason for non-attendance, reasonable prospects of success, service at the property, the overriding objective and the appellate approach to discretionary case-management decisions. The respondent had renovated the property and granted a new long lease to a third party.

1. Outcome. The court held that the Murch Order could not stand and directed a Consequentials Hearing. It did not itself determine whether the Beamish Order should be set aside or whether a late appeal should proceed.
2. Appellate approach. The appeal concerned review rather than rehearing. Applying the principles confirmed in Azam v University Hospital Birmingham NHS Foundation Trust [2020] EWHC 3384 (QB), intervention was justified where the lower court failed to consider relevant matters and gave undue weight to others.
3. Set-aside framework. The possession hearing was not a trial for CPR 39.3 purposes. Relief under CPR 3.1(2)(p) should nevertheless be approached broadly in accordance with the three-stage CPR 39.3(5) test. Strict application may be departed from where necessary to further the overriding objective. The strict form of the Denton v T.H. White Ltd [2014] EWCA Civ 906 test was not necessarily required under the wider rule, although its consideration of the reason for default and all the circumstances remained relevant.
4. Delay and non-attendance. Promptness did not necessarily await receipt of a copy of the order. Once aware that an order had been made, the applicant had to take steps to obtain it and then act promptly. However, the substantial period before the appellant knew of the forfeiture, and the respondent's failure to investigate the absence of responses or preserve documents, were relevant. Lack of awareness of the hearing was itself a good reason for non-attendance. The service principles discussed in City & Country Properties Ltd v Kamali [2007] 1 WLR 1219 and CPR 6.9(3) made the respondent's conduct material.
5. Prospects of success. Acceptance of the £4 rent payment had to be assessed objectively. Under Expert Clothing v Hillgate House [1986] Ch 340, acceptance of rent may constitute an irrevocable waiver of forfeiture for earlier arrears. The statutory thresholds in the Commonhold and Leasehold Reform Act 2002 and the Rights of Re-entry and Forfeiture (Prescribed Sum and Period) (England) Regulations 2004 reinforced the potential significance of the payment. The waiver and service points each gave rise to a reasonable prospect of success, so the lower court's conclusions on that limb were unsafe.
6. Late appeal. The guidance in R (on the application of Hysaj and others) v Secretary of State for the Home Department [2015] 1 WLR 2472 applied. The delay was non-trivial, but the lower court failed to consider material causes of it and the respondent's lack of cooperation. Its decision on the extension application was therefore unsafe for the same reasons.

• High Court (Business and Property Courts): On appeal, the court held that the Murch Order could not stand and directed a Consequentials Hearing. [2026] EWHC 1687 (Ch)
• County Court at Luton: HHJ Murch dismissed the application to extend time for an appellant's notice, refused the applications to set aside the Beamish Order, and ordered costs following his judgment of 16 January 2025 and order dated 21 January 2025.
• County Court at Hertford: District Judge Beamish made the 19 June 2019 order forfeiting the appellant's long lease and granting possession in his absence.