London Borough of Hackney v Findlay

London Borough of Hackney v Findlay

In the absence of unusual and compelling circumstances, a court asked to set aside a possession order under CPR 3.1 should generally apply the requirements of CPR 39.3(5) by analogy, giving precedence to those provisions over CPR 3.9. The decision in Forcelux was not per incuriam. The orders of the lower courts were...

Source-derived case information.

Parties
Appellant: London Borough of Hackney; Respondent: Patrick Findlay
Jurisdiction
England and Wales
Judgment Date
20 January 2011
Procedural Posture
Civil Appeal / Appeal From County Court to Court of Appeal
Outcome
appeal allowed
Legal Topics
Setting Aside Possession Orders, CPR 3.1, CPR 39.3, Discretion to Set Aside Judgments, Execution of Possession Orders, Secure Tenancies
Civil Procedure Housing Law Setting Aside Possession Orders CPR 3.1 CPR 39.3 Discretion to Set Aside Judgments Execution of Possession Orders Secure Tenancies

Source-derived case record

Summary, issues, holding and outcome

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Parties

London Borough of Hackney

Appellant

Patrick Findlay

Respondent

Procedural Posture

Civil Appeal / Appeal From County Court to Court of Appeal

Legal Issues

  1. 1 Whether the discretion to set aside a possession order made in the absence of a tenant should be exercised by reference to the factors in CPR 39.3(5)
  2. 2 Whether the decision in Forcelux Limited v Binnie was decided per incuriam
  3. 3 How the court should approach applications to set aside possession orders after execution

Ratio Decidendi

In the absence of unusual and compelling circumstances, a court asked to set aside a possession order under CPR 3.1 should generally apply the requirements of CPR 39.3(5) by analogy, giving precedence to those provisions over CPR 3.9. The decision in Forcelux was not per incuriam. The orders of the lower courts were set aside for failure to apply the correct principles, and the matter was remitted for reconsideration.

Court Disposition

appeal allowed

Orders

  • Orders of HHJ Birtles QC and DJ Armon-Jones set aside in part
  • Outstanding issues remitted to a district judge for reconsideration