Nelson & Anor v Clearsprings (Management) Ltd

Nelson & Anor v Clearsprings (Management) Ltd

The court held that neither the principle in White v Weston nor CPR 39.3(5) strictly applied; rather, the court retained a discretion to set aside the judgment, which on the facts was bound to be exercised in favour of the respondent. The appellant's persistent opposition to setting aside the judgment, despite the inevitability of that outcome, justified an order that the appellant pay the respondent's costs, except for the hearing on 8 September 2004.

Parties
Claimants/appellants: Nelson & Anr; Defendant/respondent: Clearsprings (Management) Limited
Jurisdiction
England and Wales
Judgment Date
20 December 2006
Procedural Posture
Civil Appeal / Appeal Judgment on Costs Following Dismissal of Appeal
Outcome
Appellant's appeal dismissed; costs order varied.
Legal Topics
Setting Aside Judgment, Costs Orders, Service of Process, Court Discretion
Civil Procedure Setting Aside Judgment Costs Orders Service of Process Court Discretion

Case Brief

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Parties

Nelson & Anr

Claimants/appellants

Clearsprings (Management) Limited

Defendant/respondent

Procedural Posture

Civil Appeal / Appeal Judgment on Costs Following Dismissal of Appeal

Legal Issues

  1. 1 Whether the principle in White v Weston applies to setting aside judgment where there was no service
  2. 2 Whether CPR 39.3(5) governs the application to set aside an irregular judgment for non-service
  3. 3 How the court's discretion should be exercised in setting aside such a judgment

Ratio Decidendi

The court held that neither the principle in White v Weston nor CPR 39.3(5) strictly applied; rather, the court retained a discretion to set aside the judgment, which on the facts was bound to be exercised in favour of the respondent. The appellant's persistent opposition to setting aside the judgment, despite the inevitability of that outcome, justified an order that the appellant pay the respondent's costs, except for the hearing on 8 September 2004.

Court Disposition

Appellant's appeal dismissed; costs order varied.

Orders

  • Appellant to pay respondent's costs of the appeal and of the proceedings, except for the hearing on 8 September 2004, for which there is no order as to costs.