Applications to Set Aside Possession Orders

In a recent ruling by the Court of Appeal in the case of Forcelux Limited v Binnie [2009] EWCA Civ 854, the Court has made it easier for tenants who are absent from an initial hearing to have a possession Order set aside.

Where possession proceedings are issued and a Defendant does not attend the first listing of the matter, it was generally thought that the Court's Order (subject to the Claimant's paperwork being in good shape) was equivalent to an Order made "at trial".

An absent Defendant would then struggle to set aside any such Order because he would have to meet all the requirements of CPR Rule 39.3(5). This rule says that the Defendant must show good reason for not attending the trial, that he has acted promptly since finding out about the Order and that he has a reasonable prospect of succeeding at trial. These are not insubstantial hurdles for a Defendant.

The Forcelux case has decided that in fact, the Judge's decision in such a hearing did not constitute "a trial" and, therefore, the Courts can decide an application to set aside such a possession Order under its general powers and, in particular, Rule 3.1(2)(m) in that it can "take any other step or make any other Order for the purpose of managing the case and furthering the overriding objective".

The effect of this is to make it easier for a tenant to set aside an Order for possession where he has not attended the initial hearing.

For any queries regarding possession and forfeiture actions in respect of residential leases and tenancies, please contact Gary Scott.