Forcelux Ltd v Binnie

Forcelux Ltd v Binnie

The first hearing at which the possession order was made was not a 'trial' within the meaning of Rule 39.3. Therefore, the strict requirements of Rule 39.3(5), including promptness, do not apply. The court retains discretion under Rule 3.1(2)(m) to set aside the order if the interests of justice require it. Given the modest arrears, the respondent's willingness to pay, and the severe consequences of forfeiture, the discretion should be exercised in favour of Mr Binnie, notwithstanding some delay.

Parties
Appellant: Forcelux Limited; Respondent: Mr Martyn Ewan Binnie
Jurisdiction
England and Wales
Judgment Date
21 October 2009
Procedural Posture
Civil Appeal / Appeal From County Court to Court of Appeal
Outcome
appeal dismissed
Legal Topics
Possession Proceedings, Relief From Forfeiture, Setting Aside Possession Orders, Civil Procedure Rules (cpr) Interpretation
Civil Procedure Landlord and Tenant Possession Proceedings Relief From Forfeiture Setting Aside Possession Orders Civil Procedure Rules (cpr) Interpretation

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 10 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Forcelux Limited

Appellant

Mr Martyn Ewan Binnie

Respondent

Procedural Posture

Civil Appeal / Appeal From County Court to Court of Appeal

Legal Issues

  1. 1 Whether the first hearing at which a possession order was made was a 'trial' within the meaning of CPR Rule 39.3
  2. 2 Whether the possession order should be set aside under Rule 39.3 or Rule 3.1(2)(m)
  3. 3 Whether the respondent acted promptly in seeking to set aside the possession order

Ratio Decidendi

The first hearing at which the possession order was made was not a 'trial' within the meaning of Rule 39.3. Therefore, the strict requirements of Rule 39.3(5), including promptness, do not apply. The court retains discretion under Rule 3.1(2)(m) to set aside the order if the interests of justice require it. Given the modest arrears, the respondent's willingness to pay, and the severe consequences of forfeiture, the discretion should be exercised in favour of Mr Binnie, notwithstanding some delay.

Court Disposition

appeal dismissed

Orders

  • Appeal by Forcelux Limited dismissed
  • Possession order set aside and relief from forfeiture granted to Mr Binnie upon terms as to payment of outstanding sums