Ask the judges

More civil procedure questions and more answers from our panel of district judgesQ A claimants solicitor forgets to attend on a multi-track case management conference and the procedural judge strikes out his statement of case and dismisses the claim.

Can the claimant apply to set aside the order (or reinstate the claim) or must he seek to appeal, particularly in view of the Civil Procedure Rules 1998 PD29, paragraph 6?

A There has clearly been a breach of rule 29.3(2).

The judge accordingly had power to strike out the statement of case under rule 3.4(2)(c).

It is not known whether his order was made on the ground of non-attendance alone, of course.

It seems likely that the decision was influenced by other matters: for example, a history of default or the apparent weakness of the claim. The provisions for an application for a re-hearing seem to apply only to the final hearing (rules 39.3 and 27.11, although the wording of rules 39.3(2) and (3) may not be so limited compare rule 39.3(5)) or to the hearing of an application (rule 23.11).

However, the court has a general power under rule 3.1(7) to vary or revoke an order.

The panels view is that an application should be made under that rule to the judge who made the order or another judge of the same level.

While the appeal procedure may be available, it would not normally be appropriate.

Q Is there any objection in principle to claims being adjourned generally with permission to restore? Some courts are so adjourning with the proviso that if there is a request to restore within 12 months then the claim shall stand struck out.

Mortgagees in possession claims based on arrears seem particularly put out by this sort of order.

A Rule 3.1(2) permits the court to adjourn generally with permission to restore.

Practice varies as to whether or not there is a general adjournment without limitation.

Some judges do not consider that there are any case management implications in so adjourning and regularly do so.

But many others take the view that the requirement to deal with cases expeditiously points against that course except in a case where it would be just to follow it.

They would probably consider that an adjournment for longer than 12 months in most mortgage possession cases was not warranted but the prospect of the borrower having to bear his mortgagees legal costs if further enforcement steps became necessary might influence the courts decision to adjourn for longer or without limit where the borrower does not object.l Questions may be e-mailed to: kim.davies@lawsociety.org.ukThe answers should not be considered binding on any court.