Draper v St Ermin's Property Co Ltd

Draper v St Ermin's Property Co Ltd

The judge erred in rejecting Mrs Draper's evidence as to her medical condition and reasons for non-attendance without cross-examination or any basis for finding her or her daughter untrustworthy. In the absence of a medical certificate, the totality of the evidence should have been considered, and Mrs Draper should have been given a fair opportunity to explain. As she acted promptly and had a reasonable prospect of success, the order refusing to set aside the possession order must be reversed. The costs order on the stay application was also wrongly made as St Ermin's attendance was unnecessary and their position unreasonable.

Parties
Claimant: Draper; Defendant: St Ermin's Property Co Ltd
Jurisdiction
England and Wales
Judgment Date
27 January 2004
Procedural Posture
Civil Appeal / Judgment on Appeal
Outcome
appeal allowed
Legal Topics
Setting Aside Judgment, Non Attendance at Trial, Arrears of Rent, Possession Proceedings, Adjournment, Costs Orders
Landlord and Tenant Civil Procedure Setting Aside Judgment Non Attendance at Trial Arrears of Rent Possession Proceedings Adjournment Costs Orders

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 7 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Draper

Claimant

St Ermin's Property Co Ltd

Defendant

Procedural Posture

Civil Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether the applicant had a good reason for not attending the trial under CPR 39.3(5)(b)
  2. 2 Whether the applicant acted promptly in applying to set aside the order under CPR 39.3(5)(a)
  3. 3 Whether the applicant had a reasonable prospect of success at trial under CPR 39.3(5)(c)

Ratio Decidendi

The judge erred in rejecting Mrs Draper's evidence as to her medical condition and reasons for non-attendance without cross-examination or any basis for finding her or her daughter untrustworthy. In the absence of a medical certificate, the totality of the evidence should have been considered, and Mrs Draper should have been given a fair opportunity to explain. As she acted promptly and had a reasonable prospect of success, the order refusing to set aside the possession order must be reversed. The costs order on the stay application was also wrongly made as St Ermin's attendance was unnecessary and their position unreasonable.

Court Disposition

appeal allowed

Orders

  • Order of Judge Zucker of 7 April 2003 set aside
  • Possession Order set aside