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Every practitioner with even modest experience of landlord and tenant law will have been to a possession hearing at which the defendant fails to attend. This will often result in a possession order being made.
Nevertheless, the errant defendant is provided with a possible remedy under CPR r. 3.1 (2) (m), which provides that the court may: ‘Take any other step or make any other order for the purpose of managing the case and furthering the overriding objective’.
However, it is not an area in which the court will readily extend its characteristic latitude to defendants in possession proceedings.
This bulletin shall examine the meaning of the second requirement for a ‘good reason’ for non-attendance under CPR r. 39.3(5) (b) in applications to set aside possession orders.
Succeeding in setting aside a possession order following non-attendance is no easy task. Pursuant to CPR r. 39.3(5), a party must demonstrate that:
It was held in Regency Rolls Ltd v Carnall  EWCA Civ 379 that all three requirements must be satisfied before the court will consider exercising its discretion. If all three requirements are met, it would be very unusual if the applicant did not succeed in having the order set aside.
The majority of the cases cited in this bulletin concern possession proceedings. However, it is submitted that those that do not are of equal application to such hearings.
It was held in Forcelux Ltd v Binnie  EWCA Civ 854 that the power furnished by CPR r. 39.3 to set aside orders made at trial will infrequently be of any application to possession orders because hearings at which possession orders are made can only rarely be described as a trials under the meaning of Rule 39.3.
However, in Forcelux, it was held that the court has power pursuant to CPR r. 3.1 (2) (m), set out above.
This does not mean that the criteria set out in CPR r.39(5) are no longer relevant. It was decided in Hackney LBC v Findlay  EWCA Civ 8 that when the court is asked to exercise its discretion pursuant to CPR r. 3.1 (2) (m), it ‘should in general apply the requirements of CPR 39.3(5) by analogy’ and further, that the ‘court should give precedence to the provisions of CPR 39.3(5) above those enumerated in CPR 3.9’.
The Denton principles will therefore be frequently engaged (Home Group Ltd v Marie Matrejek  EWHC 441 (QB)).
The following examples provide a flavour of the court’s approach:
The situations in which the court will find that there was good reason are incapable of exhaustive enumeration. The only indispensable requirement is that the reason for non-attendance must be honest.
Finally, it should be noted that if a defendant fails in their application to set aside the possession order, he or she is not prevented from seeking to appeal the order under the usual procedure in CPR 52.
This practice note was produced by Will Beetson, who is currently undertaking pupillage at 42 Bedford Row.
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Mathew McDermott has written an article titled “Calculating the Amount of Rent Repayment Orders”, which has been published in Landlord and Tenant Review. Read more >