Hackney London Borough Council v Driscoll
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SCHIEMANN,LADY JUSTICE ARDEN,LORD JUSTICE BROOKE,LORD JUSTICE CLARKE,Lord Justice Brooke :,Mr Justice Holman,Lord Justice Kennedy |
| Judgment Date | 16 July 2003 |
| Neutral Citation | [2003] EWCA Civ 614,[2003] EWCA Civ 1037,[2001] EWCA Civ 2086 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B1/2003/0285,Case No: B1/2003/0285 CCRTI |
| Date | 16 July 2003 |
[2001] EWCA Civ 2086
IN THE SUPREME COURT OF JUDICATURE B2/2001/1576
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHORDITCH COUNTY COURT
(HIS HONOUR JUDGE COTRAN)
Royal Courts of Justice
Strand
London WC2
Lord Justice Schiemann and
Lady Justice Arden
MR E ROBB (instructed by Hackney Legal Services, London N16) appeared on behalf of the Respondent
The Appellant appeared in person
Friday, 14th December 2001
The background to this case is that judgment for possession was given in favour of the Council against Mr Driscoll in November 1996. Mr Driscoll applied very much later in 2001 to set the order aside. That application by Mr Driscoll failed before the district judge but succeeded before the circuit judge. We have had a good deal more material before us than either of those judges had available, the Council having meanwhile found a file which was previously unavailable.
Both the judges below very understandably dealt with the case on the basis that it was covered by the Civil Procedure Rules 1998 Part 39 which is headed "Failure to Attend the Trial". But, as Mr Robb drew to our attention (and we are very grateful to him for putting points on both sides of the argument since Mr Driscoll was not able to act for himself with the skill of a lawyer as things stand) to the case of White v Weston [1968] 2QB 647. This could be the basis of an argument that—in circumstances where one party to proceedings has not received notice of the time of any trial and the trial goes ahead in his absence and the position is, as it may be in this case, namely, that the absent party had given one address to the court to notify him and the court had sent the notification to another address so that his non-attendance was not his fault—the order should be set aside. It may be in those circumstances Part 39 has no application. Because if it did apply it would mean that all the conditions set out in 39(3)(5) had to be fulfilled, which is certainly a different set of circumstances from those which seem to have been envisaged by the judges in White v Weston. Whether that is the effect of the new rules or not is perhaps a matter for argument.
There is under the new rules the provision in Part 3, rule 10, which reads:
"Where there has been an error of procedure such as a failure to comply with a rule or practice direction —
(a) the error does not invalidate any step taken in proceedings unless the court so orders; and
(b) the court may make an order to remedy the error."
The error here seems, if the facts be as I have suggested they may be, an error on the part of the court and it may well be that the court has power to remedy the effects of its error under either this or some other provision of the Civil Procedure Rules in order to enable justice to be done. There is clearly a problem in relation to potential third parties, and I note that in White v Weston (at page 662) Sachs LJ says:
"Although in this particular case the distinction between anulity and an irregularity can have no practical consequences, I should perhaps add that to my mind cases may well arise where that difference could be of importance, and the point may have to be considered when execution has been levied or bankruptcy proceedings initiated against a defendant who, through no fault of his own, knows nothing of the proceedings, owing, for instance, to being for a period overseas."
Those are the sort of considerations which may need to be taken on board when it is decided in precisely what form the application to set aside should be lodged, which particular rule, or whether under some general principle of justice.
I have given this short judgment in an attempt to indicate to the judges why we have decided to act as we have. It does seem to us, and I think all the parties agree, that it is desirable that all matters should be dealt with at the same time before the same judge because they clearly interact. Mr Driscoll has told us, very sensibly, that he is not interested in regaining possession of the property which has now been sold to somebody else, but he feel that a wrong has been done to him and he deserves compensation for that wrong. We do not express a view as to the correctness of his approach, but we could understand why he feels that way; and we consider it just that that complaint should be investigated.
I agree. I would just like to add one observation. The overriding objective requires the court to deal with cases justly. It is clearly relevant to the exercise of this discretion that the court has given as full evidence as possible about the prejudice to the parties or to third parties which may result from making or not making the order which is sought. I make this observation so that it may be borne in mind by the parties when considering what further evidence to file or directions to seek from the county court judge to whom the matter is hereby remitted. With those observations I agree with the order that my Lord proposes for the reasons that he gives.
(Appeal granted; no order for costs).
[2003] EWCA Civ 1037
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MAYOR'S AND CITY OF LONDON COURT
Judge Marr-Johnson
District Judge Wright
Lord Justice Kennedy
Lord Justice Brooke And
Mr Justice Holman
Case No: B1/2003/0285 CCRTI
Andrew Gumbiti-Zimuto (instructed by Kirk & Partners) for the Appellant
Edmund Robb (instructed by Hackney Legal Services) for the Defendant
This is an appeal by the defendant Robert Driscoll against an order made by Judge Marr-Johnson in the Mayor's and City of London Court on 15th October 2002 whereby he dismissed his appeal against the order of District Judge Wright made on 7 th February 2001 whereby she had refused to set aside the order for possession made against him on 27 th November 1996. This appeal is therefore a second appeal, brought by permission of this court because it raises an important point of practice.
In 1991 the defendant had become the owner of a long leasehold interest in premises at 5 Glendown House, Amhurst Road, Hackney after exercising his rights under a statutory right to buy scheme. The claimant council, who were his former landlords, advanced him a mortgage loan of £30,000. Arrears accrued under the mortgage, and eventually the claimants issued proceedings claiming possession of the premises by reason of the mortgage arrears. The court served the claim form on the defendant at 5 Glendown House, but he was no longer living at that address. In 1995 he had let those premises to a tenant, and he was now living in Plumstead. He maintains that he told the claimants about this move, and they are not in a position to dispute this. The claimants were unable to locate the mortgage deed, so that they were unable to rely on any agreed terms as to service of documents which may have appeared on the deed. Indeed Mr Robb, who appeared for Hackney, told us that it was not his clients' practice to include such a provision in their mortgage deeds.
In due course Mr Driscoll became aware that proceedings had been started against him, and he attended court on 22 nd July and 15 th August 1996 for procedural hearings in connection with the matter. On the latter occasion the claimants obtained an adjournment because they had lost the charge certificate. They then obtained a replacement certificate, and the court gave the parties notice of a new trial date of 27 th November 1996 pursuant to CCR O13 RThe court sent this notice to him at 5 Glendown House: it is not clear whether the claimants had told the court of the new address. At all events, he did not attend the hearing on 27 th November, when an order for immediate possession was made in his absence.
In due course the claimants evicted the defendant's tenants, regained physical possession of the premises, and sold them at a public auction on 10 th July 1997 for a sum which for all practical purposes cleared off the mortgage debt.
The defendant heard that the claimants had recovered possession of the premises some time before Easter 1997, but by this time he was suffering from a severe mental illness. He remained under hospital care for his schizophrenia either as an in-patient or as an out-patient until he was discharged from hospital care whilst on leave on 24 th August 1999.
He told the judge that although he had a number of telephone conversations with the claimants in 1999 in an attempt to discover what had happened to his property, he was not able to find a solicitor willing to assist him, and the court could not help him if he was unable to provide a case number. A considerable time then elapsed before he found a case number among his papers. Eventually on 26 th January 2001 he applied for an order setting aside the possession order. Both the district judge and the circuit judge refused his application, being unwilling to exercise discretion in his favour under CPR 39.3(5). There was a gap of nearly two years between these two hearings because an earlier decision by a circuit judge had been set aside by this court, which directed a rehearing.
The central issue on this appeal is whether Mr...
To continue reading
Request your trial
-
Nelson and Another v Clearsprings (Management) Ltd
...me today that there is some ambivalence about the strict application of White v Weston and its impact under the new rules. In Hackney London Borough v Driscoll [2003] EWCA Civ 1037, Brooke LJ left the question open where a defendant avers he has had no notice of the proceedings at all. In ......
-
Akram v Adam
...set aside. This second appeal raises an important point of practice which was identified but expressly not decided by this court in Hackney LBC v Driscoll [2003] EWCA Civ 1037 at [25], [2003] 1 WLR 2602. I said in my judgment in that case: "For my part I would prefer to express no views a......
-
Victor Lewis Nicholson v Knox Ukiwa & Company (A Firm)& Philippa Knox
...on any view of that test, Mr Carnall, in his judgment, lacked any such prospect. 38 I was also referred to the case of Hackney London Borough Council v Driscoll [2003] 1WLR 2602, which, again, was a case about an application under Part 39.3(5). In the course of his judgment, of paragraph 26......
-
Stella Igweh (Petitioner) v Joseph Uchechukwu Igweh
...absolute, as did his affidavit of 27 February 2004. 79 Before analysing the husband's case it is right to refer to the of Hackney London Borough Council v Driscoll [2003] 1 WLR 2602 C.A., cited by Mr Purdie. In that case the defendant (Driscoll) knew of the proceedings for possession of his......
-
Amending or Discharging Civil Restraint Orders
...it was held that in those circumstances the court can remedy the procedural error of service 10 London Borough of Hackney v Driscoll [2003] EWCA Civ 1037. 11 White v Weston [1968] 2 QB 647. 12 Nelson and Another v Clearsprings (Management) Ltd [2006] EWCA Civ 1252. at the wrong address unde......
-
Table of Cases
...1740 (Ch) 97–8, 112, 113 London Borough of Enfield v Sivanandan [2006] EWCA Civ 888 71–2, 79, 144 London Borough of Hackney v Driscoll [2003] EWCA Civ 1037 100 M A Holdings Ltd v George Wimpey UK Ltd [2008] EWCA Civ 12 119 Mahajan v Department of Constitutional Affairs [2004] EWCA Civ 946 8......