header-logo header-logo

17 February 2011 / Elizabeth Morrison
Issue: 7453 / Categories: Features , Landlord&tenant , Property
printer mail-detail

Coming full circle?

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

If you are not a subscriber, subscribe now to read this content
If you are already a subscriber sign in
...or Register for two weeks' free access to subscriber content

MOVERS & SHAKERS

NLJ Career Profile: Ken Fowlie, Stowe Family Law

NLJ Career Profile: Ken Fowlie, Stowe Family Law

Ken Fowlie, chairman of Stowe Family Law, reflects on more than 30 years in legal services after ‘falling into law’

Gardner Leader—Michelle Morgan & Catherine Morris

Gardner Leader—Michelle Morgan & Catherine Morris

Regional law firm expands employment team with partner and senior associate hires

Freeths—Carly Harwood & Tom Newton

Freeths—Carly Harwood & Tom Newton

Nottinghamtrusts, estates and tax team welcomes two senior associates

NEWS
Children can claim for ‘lost years’ damages in personal injury cases, the Supreme Court has held in a landmark judgment
The cab-rank rule remains a bulwark of the rule of law, yet lawyers are increasingly judged by their clients’ causes. Writing in NLJ this week, Ian McDougall, president of the LexisNexis Rule of Law Foundation, warns that conflating representation with endorsement is a ‘clear and present danger’
Holiday lets may promise easy returns, but restrictive covenants can swiftly scupper plans. Writing in NLJ this week, Andrew Francis of Serle Court recounts how covenants limiting use to a ‘private dwelling house’ or ‘private residence’ have repeatedly defeated short-term letting schemes
Artificial intelligence (AI) is already embedded in the civil courts, but regulation lags behind practice. Writing in NLJ this week, Ben Roe of Baker McKenzie charts a landscape where AI assists with transcription, case management and document handling, yet raises acute concerns over evidence, advocacy and even judgment-writing
The Supreme Court has drawn a firm line under branding creativity in regulated markets. In Dairy UK Ltd v Oatly AB, it ruled that Oatly’s ‘post-milk generation’ trade mark unlawfully deployed a protected dairy designation. In NLJ this week, Asima Rana of DWF explains that the court prioritised ‘regulatory clarity over creative branding choices’, holding that ‘designation’ extends beyond product names to marketing slogans
back-to-top-scroll