Has the pre-Forcelux approach been restored, asks Elizabeth Morrison
Social landlords may not have welcomed the decision in Forcelux v Binnie [2009] EWCA Civ 854, [2010] CP Rep 7. In that case the Court of Appeal held that an initial possession hearing was not a “trial” even if a final possession order was made. Accordingly any application to set aside by a defendant tenant who had not attended the hearing fell to be determined not under CPR 39.3(5), but under rules 3.1(2)(m) and 3.1(7). In so determining, the checklist in rule 3.9 (relief from sanctions) could be considered (see 159 NLJ 7393, p 1580).
Whereas rule 39.3(5) requires a party to meet specific criteria (acting promptly, having good reason for non-attendance, and reasonable prospect of success), rules 3.1 and 3.9 permit a much wider discretion. Thus, in effect, it became easier for a tenant to set aside a possession order made at a hearing which he had failed to attend for good reason or bad, and even if he had been slow to challenge
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