O'Tudor v Okonkwo
Jurisdiction | England & Wales |
Judge | Mrs Justice May |
Judgment Date | 26 August 2016 |
Neutral Citation | [2016] EWHC 3434 (QB) |
Date | 26 August 2016 |
Court | Queen's Bench Division |
Docket Number | Case No: QB/2016/0005 |
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Royal Courts of Justice
Strand
London
WC2A 2LL
Mrs Justice May
Case No: QB/2016/0005
Simon Brilliant (instructed by Solicitors) appeared on behalf of the Applicant
The Respondent did not attend and was not represented
(As Approved)
No of Words: 1306
No of Folios: 18
This is an application for permission to appeal on an oral renewal following a refusal by Hickinbottom J who had considered the case on the papers. Having considered the matter further over lunchtime and having now read, which I had not had an opportunity to do before, the argument before His Honour Judge Collender; I have concluded that there is no case with a real prospect of success and no other compelling reason for the appeal to be heard.
The circumstances were these. There was a claim against the applicant for damages arising out of a wrongful eviction. The judgment on liability was given in default of compliance with court orders and had not been appealed or sought to be set aside. There was an order for a disposal hearing, the purpose of which was to assess the claimant's damages. That hearing was listed for 21 August last year. Prior to the hearing, the applicant, Miss O'Tudor, asked for it to be put off as she had hospital appointments either side of the date, although not on the actual date itself. The court refused her application made in advance of the hearing to adjourn, so the hearing went ahead, and Judge Collender awarded damages totalling £35,000 to the family of five persons who had been evicted.
On 3 September, the applicant applied to set aside that judgment. That application was heard by Judge Collender on 30 November, he declined to set the judgment aside. On that occasion, Miss O'Tudor was for the first time represented by counsel, Mr Choudhury. The transcript of the hearing shows that Mr Choudhury, at least initially, may have been confused by what it was he was seeking to do. There is talk of contesting liability which of course he was not in a position to do. No authority was cited, nor was the judge taken to the White Book. There was no mention by Mr Choudhury in his submissions of Part 39, until the very last moment.
Today Miss O'Tudor is represented again by counsel, this time Mr Brilliant, who has been as helpful to me as he possibly could be, setting out the law, taking me through all the chronology in full detail so I have the clearest possible view of the background. He has also taken me to the case of TBO Investments v Mohun-Smith. That case makes clear the difference in approach when deciding an application to adjourn in advance of a hearing and a decision on an application to set aside made after a hearing has been conducted in a person's absence.
On an application to set aside after the hearing in absence, three factors are to be considered: whether the application has been made promptly, and there is no question about that here; secondly, whether the applicant, in this case Miss O'Tudor, had a good reason for not attending; and thirdly, the prospects of success at the...
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