Setting aside orders and warrants
General principles for setting aside
Setting aside order made on first hearing date
 EWCA 8
There has been some confusion as to whether an application to set aside a possession order should be made under CPR 3.1 (general discretion to relieve from sanctions) or CPR 39.3). The principles were set out in this case.
Although the hearing of a possession claim on a the first date is not a "trial" (the word using in CPR 39.3), in most cases that part should be used to determine whether or not an order for possession should be set aside for failure to attend that hearing.
Arden LJ at para 24:
" ... in the absence of some unusual and highly compelling factor as in Forcelux, a court that is asked to set aside a possession order under CPR 3.1 should in general apply the requirements of CPR 39.3(5) by analogy. This is in addition to, and not in derogation of, applying CPR 3.9 by analogy, as this court did in Forcelux, as that provision requires the court to have regard to all the circumstances in any event. However, in my judgment, for the reasons given above, in the absence of the unusual and compelling circumstances of a case such as Forcelux, this court should give precedence to the provisions of CPR 39.3(5) above those enumerated in CPR 3.9.
Even that is subject to a qualification in the case of a secure tenant. Parliament clearly contemplated in s 85(2) of the Housing Act 1985 that the tenant should have the chance there described of persuading a court to modify an outright possession order. It follows that the requirements of CPR 39.3(5) need not be applied in such a case with the same rigour as in the case of a final order that does not have this characteristic. (It is only fair to Mr Findlay to make the point that DJ Manners expressly had the possibility of a subsequent application by him in mind when she made her order). Accordingly, the court should not decline to exercise its power to set aside a possession order if in consequence the statutory purpose in s 85(2) would be defeated. Moreover, in my judgment the court can have regard to the wider social context in which these cases come before the courts.
Accordingly, in deciding whether the tenant has a good reason for non-attendance the court can in my judgment have regard to the provisions of the Rent Arrears Pre-Action Protocol and to best practice among social landlords. It may conclude that, while in the ordinary case a defendant might have had no proper excuse for not attending a court hearing at which the possession order was made, given best practice of social landlords and the provisions of that protocol, a tenant is in fact able to provide an appropriate explanation."
In most cases where a party does not attend a hearing or a trial and the court gives judgment or makes an order against them the party who failed to attend may apply for the judgement or order to be set aside and CPR 39.3(3) will apply. The court may grant the application only if the applicant:
(a) acted promptly when he/she found out that the court had exercised its power to make the order;
(b) had a good reason for not attending the hearing; and
(c) has a reasonable prospect of success at the trial (CPR 39.3(5); and see Bank of Scotland v Pereira  EWCA Civ 241 where Neuberger J set out in detail the considerations to be made on such an application).
The exceptional case
 EWCA Civ 854
This was a claim for possession made in respect of a long lease of a flat with 94 years left based on ground rent and service charge arrears. The claim was served at the flat. D failed to attend teh first hearing because he was not living there at the time. An order for possession was made resulting in forfeiture of the lease. The order was set aside using the wider discretionary powers under CPR 3.1(2). The fact that the landlord would receive a windfall if the posesserion order was not set aside clearly carried great weight with the CA. (See Warren J at para 67).
Seeking to resove the tension
 EWCA Civ 446
In this case, the Court of Appeal considered the tension between Another Forcelux v Binnie and London Borough of Hackney v Findlay. In Forcelux it was suggested that the court’s discretion to set aside a possession order under CPR 3.1 is wide and unfettered, whereas in Hackney it was held that the CPR 39.3 principles ought to be applied (although with less rigour) save for cases involving unusual or highly compelling factors (see above).
The Court of Appeal attempted to resolve this tension by pointing out that in this case, as in Forcelux, the property was a high value capital asset rather than a tenancy at a rack rent (as in Hackney). In such a case, the court is entitled to take a broader view of what constitutes “success”.
Application to set aside or appeal?
 EWCA Civ 241
Lord Neuberger MR set out some guidelines intended to help in answering this question in any particular case:
- While the purpose of CPR 39.3 is thus readily apparent, the relationship between a defendant's application under CPR 39.3 to set aside an order, and any attempt to appeal against the order is more difficult. Experience and common sense suggest that it may well be impossible to lay down rules in that connection which would cover every case. However, I consider that there are six points which can at least act as guidelines, and would apply in the great majority of cases.
- First, where the defendant is seeking a new trial on the ground that she did not attend the trial, then, even though she may have other possible grounds of appeal, she should normally proceed under CPR 39.3, provided she reasonably believes that she can satisfy the three requirements of CPR 39.3. The fact that she wishes to raise other arguments for attacking the trial judge's decision should not preclude her proceeding under CPR 39.3, because that is the specific provision which applies if she did not appear at the trial (and gives her a potential right to a new trial) as Jack J pointed out. Further, if she has a retrial, the other arguments which she wishes to raise could be raised at the retrial (and they may be considered by the judge who hears her CPR 39.3 application). This is not to suggest that in Boutique Basilique  EWCA Civ 754 the court proceeded on a mistaken basis. If a defendant seeks to appeal without first making a CPR 39.3 application, when she could have made such an application, the appellate court could still entertain her appeal, although particularly following our judgments in this case, it will normally require unusual facts before it should do so.
- Secondly, if the defendant concludes that she cannot establish that she had a good reason for not attending the trial and/or that she made her CPR 39.3 application promptly, it would obviously be silly for her to make a CPR 39.3 application. In such a case, she can nonetheless seek to appeal against the trial judge's decision in the same way as any other defendant. I do not see why the rights of appeal of an unsuccessful defendant should be any different in principle depending on whether the judgment was given in her presence or her absence. If the trial judge made an appealable decision, either in his final judgment or during the hearing, the defendant's ability to challenge the decision by way of an appeal under CPR 52 should in principle be the same. CPR 39.3 is, in that sense, merely an additional potential course given to a defendant who, with good reason, was unable to attend the trial.
- It is important to emphasise the words "in principle" in the previous paragraph. In practice, a defendant who has not attended the trial may face greater difficulties in pursuing an appeal than one who has. First, as this case and Tennero  1 WLR 1025 suggest, her application for permission to appeal is likely to be out of time, and she will have to persuade the appellate court to extend time. Secondly, a defendant who has not attended trial is far more likely to have to persuade the appellate court that she should be permitted to adduce evidence or raise arguments of law not adduced or raised at trial (as to which see paras 44-45 below).
- Thirdly, where a defendant makes an application under CPR 39.3 and that application fails on the ground that she had no good reason for not attending the trial and/or that she did not make her CPR 39.3 application promptly, it seems to me that her right to appeal the trial judge's order should, in principle, be no different from what it would have been if she had not made the CPR 39.3 application. Unless she appeals against the dismissal of her CPR 39.3 application, she would not be able to argue on any attempt to appeal the trial judge's order that the judgment should be set aside simply because it was given in her absence.
- However, if she had applied for an adjournment of the trial, I do not see why the fact that she had made a CPR 39.3 application which had failed on the grounds just mentioned (or that she had not made a CPR 39.3 application at all), should preclude her from arguing on an appeal that the trial judge erred in refusing her application to adjourn the trial. A defendant who attended the trial and asked for an adjournment, would be entitled (subject to obtaining permission to do so) to appeal the judge's refusal of an adjournment, and I do not see why a defendant who did not attend the trial and whose written application for an adjournment was applied for in writing should be in any different position. The mere fact that she had failed in a CPR 39.3 application for the reasons just referred to should not make any difference to her rights of appeal.
- Where a defendant seeks to appeal against the trial judge's order after making a failed CPR 39.3 application, I do not consider that, in the light of the discrete and interlocutory nature of a CPR 39.3 application, strict issue estoppel would apply on any question of fact so far as the appellate court is concerned. However, the appellate court considering an appeal or an application to appeal should take a great deal of persuading before departing from a conclusion expressed by the judge who heard the application to set aside; to do so, in the absence of good reason would be invidious, as Gross LJ said in argument.
- Fourthly, where the defendant has made a CPR 39.3 application which failed on the ground that her arguments on the substantive issues would have no prospect of succeeding at any retrial, she should not normally be entitled to raise the same arguments through the medium of an appeal against the trial judge's decision. The proper course would usually be to challenge the refusal of the CPR 39.3 application on this ground. However, there will be exceptional cases. For instance, where the CPR 39.3 application was also refused on the grounds that there was no good excuse for not appearing at the trial and/or that there was a lack of promptness in making the CPR 39.3 application, it may well be pointless to appeal the refusal, as it would be upheld on those grounds. In such a case, at least as at present advised, I think it would be wrong if the defendant were precluded from seeking permission to appeal the trial judge's decision, simply because she was seeking to say that he was wrong for reasons which had been rejected in her CPR 39.3 application.
- Fifthly, where the defendant's CPR 39.3 application fails, she will normally be in severe difficulties in seeking to contend, by way of appeal against the trial judge's order, that she should be entitled to rely on evidence which was not before the trial Judge, or that she should have a retrial. In such cases, the appellate court's approach must depend to some extent on the facts. In general, the appellate court will bear in mind not only the requirements of CPR 39.3, but also the post-CPR application of the Ladd v Marshall principles (as discussed in Hertfordshire Investments Ltd v Bubb  1 WLR 2318, 2325, and Sharab v Al-Saud  EWCA Civ 353, para 52).
- Where the new evidence could not reasonably have been available to the defendant even if she had properly prepared for and attended the trial, it seems to me that the defendant's position should normally be no different from a defendant who had attended at trial. So too where her application for a retrial is not dependent upon the fact that she did not attend the trial. In such circumstances, her application to adduce and rely on new evidence or for a retrial would not be related to her position as a defendant who did not attend the trial.
- However, it would be very different where the defendant's application to adduce new evidence, or to have a retrial, is essentially based on the fact that she did not attend the trial. If she has already failed in her CPR 39.3 application, it seems to me that to allow her to appeal against the trial judge's order on such a ground would involve letting her in through the back door after having firmly locked the front door. The policy behind CPR 39.3, as interpreted in Regency Rolls  EWCA Civ 379, is to prevent a defendant from seeking a retrial if she did not attend the trial, unless the three requirements in CPR 39.3.5 are satisfied. Where her CPR 39.3 application has been refused because she has failed to satisfy one or more of those requirements, it seems to me that it would be wrong in principle for an appellate court to grant her a retrial on grounds which, in reality, amount to no more than her having been absent from, and therefore not having given evidence at, the trial.
- Sixthly, if the defendant makes no CPR 39.3 application, but appeals the trial judge's decision and seeks to put in new evidence or an order for a retrial, very similar considerations seem to me to apply. However, as it will not have been determined whether the three requirements of CPR 39.3.5 have been satisfied, the appellate court may have to make that decision for itself (unless it decides that the defendant should first have applied under CPR 39.3 to set aside the trial judge's order (in which case the appellate court may nonetheless decide the issue itself, remit the issue to the court below as a CPR 39.3 application, or make some other appropriate order).
 EWCA Civ 1123
Where a party is dissatisfied with judgment at a hearing at which they failed to attend and their main cause for complaint arises out of the failure to adjourn the matter, the proper route is an application to set the judgment aside under CPR 39.3(3) rather than appeal.
L sought possession from T, T counterclaimed for disrepair. There had been a number of abortive hearings and L failed to attend the final hearing. The Judge after considering the statements filed by both parties gave judgment against L. L appealed on the basis that:
- The hearing should not have gone ahead in their absence as it was not clear that they were aware of the hearing and
- The Judge failed properly to consider the evidence before him.
The Court of Appeal dismissed their appeal but took a preliminary point on the question of whether there should have been an appeal or an application to set aside under CPR 39.3. reference was made to Bank of Scotland v Pereira  EWCA Civ 241 and the guidance given by Lord Neuberger MR. Considering those points, Gross LJ permitted the appeal to continue:
“21. In my judgment, the Appellants in the present case ought to have applied under CPR 39.3, rather than pursuing an appeal. This was indeed a paradigm case for a CPR 39.3.application. The principal ground of appeal (Ground I) was entirely focused on the Judge proceeding in the Appellants’ absence; Ground II, at least in part, fell naturally under CPR 39.3. That Ground III was an independent ground does not mean, as explained by both Lord Neuberger MR and Lloyd LJ (supra), that the CPR 39.3 route should not have been pursued – a fortiori given the intrinsic weakness of Ground III.
22. For my part, however, I would nonetheless be minded to entertain the appeal on the merits. My principal reason for reaching this conclusion is simply that the Appellants opted to pursue an appeal – rather than a CPR 39.3 application – prior to Pereira being decided in this Court and the clarification of the relationship between appeals and CPR 39.3 applications. In the circumstances, I do not think that this procedural error should deprive the Appellants of the opportunity of being heard in this Court.
23. Additionally, it is fair to the Appellants to say that they are not seeking any “backdoor” advantages by appealing instead of seeking to have the Judgment set aside; cf.,Pereira, at . There is, in particular, no application before us to adduce fresh evidence on the appeal”
However there was a word of warning for the future:
"24. Accordingly, I am of the view that the appeal should be entertained on its merits and I propose to proceed to do so. I would not, however, wish to leave this preliminary question without the following observations:
i) It does not at all follow that in subsequent cases the decision (to entertain an appeal when the correct course was to apply by way of CPR 39.3) would be the same (as Lord Neuberger MR observed in Pereira, at , in the passage already cited). I take this opportunity of underlining the importance of Pereira in providing guidance for a litigant unhappy with a decision reached in his/her absence.
ii) I am firmly of the view that the mere fact that a litigant is a litigant in person (“LIP”) would not, at least ordinarily, constitute an “unusual fact” (within Lord Neuberger MR’s observations in Pereira at ), warranting this Court entertaining an appeal when the correct course was to proceed by way of CPR 39.3. It is one thing to make even generous allowances, as the Court invariably does, for LIPs; but there should not be one rule for LIPs and a different rule for those legally represented.
Good reason for not attending trial
 EWCA Civ 533
An order forfeiting a lease of residential premises for non-payment of service charges was made. The house was an unencumbered leasehold property worth more than £140,000. The debt was £849.21. The defendants were not living at the property and so were unaware of the proceedings, that were properly served. When they became aware of the order they applied to have it set aside.
In order to be successful they needed to satisfy the three requirements set out in CPR r.39.3(5):
- "(5) Where an application is made under paragraph (2) or (3) by a party who failed to attend the trial, the court may grant the application only if the applicant ...
- (a) acted promptly when he found out that the court had exercised its power to strike out or to enter judgment or make an order against him; (b) had a good reason for not attending the trial; and (c) has a reasonable prospect of success at the trial."
The issue in the case was whether or not the defendants had a "good reason" for not attending the trial. Counsel for the landlord sought to argue that the defendants should have had a system in place to make sure that any litigation came to their attention. It was no good simply stating that they did not know of the trial date.
This argument was rejected and the order was set aside. Dyson LJ at para 24:
- "A person is under no obligation to make himself amenable to potential claims of which he has no notice. It must follow that, if he fails to attend a hearing in proceedings of which he is unaware, he has a good reason for failing to attend."
Warrants - oppression etc.
The basic principles
The principles to be applied when setting aside a warrant after execution are that this will only occur where (1) the order on which it is issued is itself set aside, (2) the warrant has been obtained by fraud, or (3) there has been an abuse of process or oppression in its execution (Jephson Homes v Moisejevs (2000)).
The CA re-affirmed these principles in Circle 33 Housing Trust Ltd v Ellis  EWCA Civ 1233.
This case had a chequered history. The possession order was made by the District Judge when the tenant did not turn up at court. The warrant was executed and the defendant only then applied to the court, to set aside the warrant. The application came before the county court judge. This was a housing benefit case and at the date of that hearing there were effectively no arrears and it was reasonably plain that future Housing Benefit would have been paid if it were not for the fact that eviction had taken place. However, the county court judge took the view that there was no fraud or oppression and that the failure to get to grips with the housing benefit problem was that of the defendant. He therefore refused the application.
There was then an appeal to a High Court judge who took a completely different view. He considered that the fault lay with the local authoritys inefficient and irrational behaviour in relation to the housing benefit and that the landlord should have contacted the authority before evicting. He thought it was one of those rare cases where execution of the warrant was oppressive.
Second appeal - decision
There was then a second appeal to the CA by the landlord. Second appeals are highly unusual but the CA gave permission for the appeal and granted it because the High Court judge was plainly wrong. The CA re-affirmed and applied the principle stated above, ie. that a warrant will only be set aside after execution if the order itself is set aside, there is fraud, abuse of process or oppression. Sympathy with the tenant is not enough.
Chadwick LJ continued at paragraph 26 and 27 of the judgment:
- "25. In this important and sensitive field of social housing, Parliament has prescribed a regime which recognises that a tenant should not be evicted from his home if some alternatiove solution reasonable in the interests of both the landlord and the tenant can be found. It has provided the opportunity to seek such an alternative solution through the courts right up to the point of eviction. The courts role does not cease when it makes a possession order. The jurisdiction to stay or suspend the order, or to stay or suspend execution of the warrant, is exercisable at any time before execution of the order. The provisions of section 9(2) of the Housing Act 1988 mirror those .. in s85(2) of the Housing Act 1985.
- 26. But Parliament has recognised that there must come a time when the landlord is able to relet the property in the knowledge that a former tenant can no longer return to the court with proposals for a solution which enables him to resume occupation. The scheme in the Housing Acts, provides that that time comes when eviction has taken place. Thereafter the statutory scheme provides that the landlord can relet in the knowledge that the scheme for protecting the former tenant has run its course."
Misconduct by the court
Rendham Holdings Ltd v Patel
 All ER(D) 132; Legal Action, December 2002, p21.
T applied for a stay of execution of a possession order pending appeal. Due to an error in the court office the application was not put before a judge. A warrant for possession was issued and executed. T successfully applied to have the warrant set aside on the basis of oppression and obtained relief from forfeiture. Ls appeal to the High Court was unsuccessful. T was entitled to believe that a warrant would not be issued and enforced before considering the application for the stay.
Mortgage case - allegation that sale will be at undervalue - not oppression
Da Rocha-Afodu v Mortgage Express
 EWHC 297 (QB)
What happens if a warrant for possession has been enforced, the property is on the market for sale, but the borrower wants to go back in?
Following protracted proceedings, the lender obtained an order for possession and issued a warrant due for execution on 29 September 2006. On the 28 September 2006 the borrowers applied for a suspension. The court refused the application. The warrant was executed and possession was taken.
On 28 December 2006, the borrowers filed an Appellant's Notice, out of time, seeking permission to appeal the refusal. They sought to challenge the judge's findings of fact and his exercise of discretion. They also applied for a stay of execution and an order that they be allowed back into possession in the meantime. Apart from hardship, they also cited issues about the disposal of personal property and the prospect of a sale at an undervalue.
On 16 January 2007 the court granted a stay of execution. On 26 January 2006 the lender applied to lift the stay.
At the substantive hearing on 14 February 2007, the court had to determine the borrowers' application to be allowed back into the property and the lender's application to lift the stay.
The principal ground relied on by the lender was that the court had no jurisdiction to grant a stay, save in exceptional circumstances which did not apply, in a case where an eviction had already taken place (Cheltenham & Gloucester Building Society v Obi (1996) 28 HLR 22).
The borrowers submitted that the court had jurisdiction on the basis that they had a reasonable prospect of success and that without a stay, they would be ruined (Linotype-Hell Finance Ltd v Baker  1 WLR 321).
Cheltenham & Gloucester v Obi applied. The court could not set aside or suspend a warrant for possession after execution unless either (1) the possession order on which it was issued was itself set aside, (2) the warrant had been obtained by fraud, or (3) there had been an abuse of process or oppression in its execution.
On the facts, none of the exceptions applied. Marketing the property at an alleged undervalue was not oppression. Nor was there any abuse of process in respect of the judge's earlier findings of fact:
- "The warrant has been executed and the court has no jurisdiction to grant a stay in the circumstances of this case. Still less does the court have any jurisdiction to order the [lender] to permit the [borrowers] to re-enter the property by way of interim measure pending the hearing of an application for permission to appeal out of time".
Stay lifted; borrowers' application refused.
Abuse of process - false representation that no application pending
Ahmed v. Mahmood
 EWHC 3176 (QB)
A writ of possession was set aside after the tenant was evicted due to a false representation by the landlord that no application was pending.
L claimed possession and T defended and claimed damages for unlawful eviction. At the start of a three day trial, T applied for an adjournment, which was granted on the basis that T paid all the rent arrears.
T appealed the decision to make the adjournment conditional on the payment of the arrears. T failed to pay the arrears, the defence was struck out and a possession order made. In drafting the order for possession, L added provision for the matter to be transferred to the High Court for enforcement.
L then applied to the High Court for a writ of enforcement. In doing so, L stated that there was no other application or procedure pending. The writ was executed, T was evicted and the property re-let. T applied to set aside the writ.
The High Court granted the application. Lang J said:
“A warrant or writ cannot be set aside after execution unless it was obtained by fraud, abuse of process or oppression – see Leicester City Council v Aldwinkle  24 HLR 40 , Hammersmith & Fulham Trust Limited v Ellis  EWCA (Civ) 1233;  HLR 7”.
Here there was no question of fraud or oppression, however, the failure to mention the appeal was a falsification amounting to an abuse or process which meant that that writ should be set aside.
The fact that the property had been re-let should have caused added difficulties for an already complicated case. The Judge seemed to be satisfied that the writ should be set aside on an undertaking by T that they would not seek to retake physical possession until the appeal(s) had been concluded.