Nelson and Another v Clearsprings (Management) Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WARD,Sir Anthony Clarke MR,SIR ANTHONY CLARKE,LORD JUSTICE WALLER |
| Judgment Date | 20 December 2006 |
| Neutral Citation | [2006] EWCA Civ 1252,[2005] EWCA Civ 1065,[2006] EWCA Civ 1854 |
| Docket Number | B1/2005/1124,Case No: B1/2005/1124 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 December 2006 |
[2005] EWCA Civ 1065
Lord Justice Ward
B1/2005/1124
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
Royal Courts of Justice
Strand
London, WC2
The Applicant appeared in person
The Respondent did not appear and was not represented
Tuesday, 19th July 2005
This was a claim for possession and the return of the keys to a property let by the applicants to the defendants and for arrears of rent and for reparation in respect of damage to the let property.
The matter came on for trial before HHJ Bush on 14th June 2004 when the learned judge entered judgment for the claimant in the sum of some £13,000-odd and ordered up the delivery of the five sets of keys. The defendants then applied to set aside that judgment which was made in their absence. They applied under CPR13 but, as the District Judge pointed out, that rule applies to default judgments and this was a judgment on a full hearing before the Judge. The District Judge treated this, therefore, as being brought pursuant to CPR39.3 and held that it was, therefore, necessary for the defendants to establish their claim under that rule. 39.3 paragraph 5 states that where an application is made under paragraph 2 or 3 by a party who has failed to attend the trial, the court may grant the application only if—and the words "only if" are emphasised by Mr Nelson—the applicant (a) acted promptly, et cetera, (b) had a good reason for not attending the trial, and importantly (c) has a reasonable prospect of success on the trial. Because none of those three requirements were established to the District Judge's satisfaction, he held on a preliminary issue that the test to be applied were the principles set out in CPR39.3(5), but gave leave to appeal.
On appeal to HHJ Bush, HHJ Bush held that one had to have regard to the contention that the claim in this case was not served on the defendants at all because it had been sent to the wrong address by the court, and he, HHJ Bush, was of the view that upon proof that the defendant had not been served with the claim form and had no knowledge of the proceedings before judgment was obtained, the old case of White v Weston, decided under the Rules of the Supreme Court and reported at 1968 2 All ER page 842, still applies and consequently, as a matter of justice, the court should set aside the judgment forthwith and without further inquiry.
Mr Nelson, who appears in person, submits to 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 [2004] EWCA Civ 1601, Brooke LJ upheld the CPR Code but seemed to suggest that it was still incumbent on the claimant to establish that he had complied with the Rules and that the judgment was a regular one. So there is a little uncertainty as to what happens if the judgment, in old terminology, is not a regular one. In Godwin v Swindon BC [2001] ECWA Civ 1478, May LJ was of the view that the court had sufficient power to exercise its discretion under CPR13 in favour of a defendant who established he had no knowledge of the claim before judgment.
So it seems to me that there is no great clarity as to what should happen when a trial has taken place but in circumstances where the defendant was never served with the proceedings at all. It seems to me that gives rise to a sufficiently fundamental point of practice as to justify this second appeal and I grant permission accordingly. The matter should be heard before a court of three, one of whom can be a High Court judge. The case should be capable of being dealt with in half a day.
MR NELSON: Much obliged.
You have done this very nicely, Mr Nelson, but you are not represented in what is quite a technical field.
MR NELSON: I have the knowledge. I was trained as a barrister but never went to the Bar. I have practised in this country. You will find that I have been on a number of occasions in the Law Courts.
Very well. Good look to you. I was going to offer you pro bono counsel, if I could organise it, but you do it yourself. Thank you very much. Good luck.
MR NELSON: Much obliged.
[2006] EWCA Civ 1252
Sir Anthony Clarke Mr
Lord Justice Brooke and
Lord Justice Waller
Case No: B1/2005/1124
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LEEDS COUNTY COURT
His Honour Judge Bush
District Judge Giles
Royal Courts of Justice
Strand, London, WC2A 2LL
Geraint Jones QC (instructed through the Bar Licensed Access Scheme) for the appellant
Robert Smith (instructed by Messrs Restons) for the respondent
This is the judgment of the court.
Introduction and background
This is an appeal from an order of His Honour Judge Bush made in the Leeds County Court on 9 May 2005 allowing an appeal from the determination of a preliminary issue made by District Judge Giles on 7 January 2005. The preliminary issue arose in this way. On 14 May 2004 the claimants filed a claim form for possession of furnished residential property, namely No 8 Woodland Grove, Potternewton, Leeds (“the property”). The particulars of claim, which were dated the same date, claimed:
“1.
Immediate possession of the property together with its 5 sets of keys.
2.
Arrears of rent due amounting at the date hereof to £6,083.88
3.
Reparations amounting to
£2,028.56
4.
Mesne profits @ £520 a month from the date hereof to 2 April 2005 amounting to
£5,521.97
5.
Further or other relief as to the Court seems just
6. Costs”
The total of the money claim was £13,634.41. Both the claim form and the particulars of claim included a statement of truth. The name and address of the defendant, the respondent in this appeal, were stated on the claim form to be “ClearSprings (Management) Ltd, 28 Brook Road, Brook Road Business Park, Rayleigh SS6 7XJ, Essex”. (We shall refer to that entity throughout as 'the respondent'.) On the front of the claim form, which is entitled “Claim Form for Possession of Property”, it is stated that the claimant (a term that in this context means both claimants) is claiming possession of the property.
The claim form was issued on 18 May 2004 and, as issued, contains the statement that “this claim will be heard on Monday 14 June 2004 at 10.00 am”. As a result of enquiries made at our request of the Leeds County Court by Mr Reston we learned that the claim form (and particulars of claim) were approved for postal service on 20 May 2004 and that the court deemed them served on 22 May 2004. The court also issued a Notice of Issue directed to the appellant which stated “Your claim was issued on 18 May 2004”. It stated that the claim would be heard on 14 June 2004.
The respondent did not acknowledge or respond to the claim form in any way. The respondent's case is that it was unaware of the proceedings at any time until it learned of the judgment. The respondent's address is in fact No 26 Brook Road and not No 28 Brook Road. The correspondence shows that the claimants knew that that was the case because they had previously written to the respondent at No 26. The address on the claim form was a mistake.
The judgment and subsequent applications
The matter came before His Honour Judge Bush for trial on 14 June. The respondent did not attend and a judgment was given in the claimants' favour in the sum of £13,634.41. The order, which is entitled an Order for Possession, provided that the respondent do deliver five sets of keys, presumably to the claimants. On 29 June 2004 the respondent issued an application notice which stated that the respondent intended to apply for an order that the judgment entered on 14 June 2004 be set aside and that directions be given for the further conduct of the action because “we wish to rely upon the attached witness statement and we say that on the basis of the evidence contained in that the defendant has a good defence to the claim and judgment should therefore be set aside to enable the defendant to defend these proceedings”. The attached witness statement was that of Birgit Elisabeth Kirby. The statement included evidence that the respondent's address was 26 Brook Road and that the claim form was not served at that address or indeed at any other of the respondent's addresses. Ms Kirby acknowledged that a dispute had arisen between the respondent and the claimants with regard to the property and also produced a copy of a letter dated 7 January 2003 (but in fact written on 7 January 2004) which she wrote to Emsleys of Leeds, a firm of solicitors then instructed by the claimants, asking them to serve any proceedings on the respondent's solicitors, Messrs Restons of York. We note in passing that the claim form was issued by the claimants in person and not by solicitors on their behalf. Restons still act for the respondent.
In paragraphs 9 to 14 of her statement Ms Kirby sets out the respondent's account...
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