Q.

My local county court rec ently returned an application for exemption under the Landlord and Tenant Act 1954 s.38 saying it had no jurisdiction to determine it as it concerned premises outside its area.

This came as a surprise to me as many other county courts have been happy to grant exclusion orders where the premises have been off their patch.

Was my local court right? If so, can I overcome the problem by agreeing with the other claimant for the court to have jurisdiction? If not, what is the status of those orders made by courts without jurisdiction?A.

Paragraph B.6 of the second practice direction (PD) to Civil Procedure Rules 1998 (CPR) part 8 seems to require the exclusion application to be made only to the court where one of the applicants lives or carries on business or where the property in question is situated.

There is no provision which allows parties to agree to another court being used for applications of this kind -- although equally there is none (other than the PD) expressly prohibiting it.

Practice varies.

Some district judges are content to rely on the parties' consent; others are not.

Orders made by the 'wrong' court may well be treated as effective by the assumption that the court applied rule 30.2(2)(b) ('If proceedings have been started in the wrong county court, a judge of the county court may order that the proceedings .

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continue in the county court in which they have been started') or rule 3.10(b) ('Where there has been an error of procedure such as a failure to comply with a rule or practice direction .

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the court may make an order to remedy the error') (see St Giles Hotel v Microworld Technology Ltd [1997] NPC 54 CA, but note that this was a decision on the former county court rules).

Solicitors may wish to play safe and use the 'right' court.Q.

I am finding that court staff are habitually failing to process requests for default judgments, promptly or within a reasonable time.

This often results in the filing of a defence which is out of time but is nevertheless before the court when a clerk comes belatedly to deal with the judgment request.

What happens? The judgment request is returned unactioned and the defence is accepted.

Why should the court not deal with the judgment request as things were when it was lodged? A claim form is treated as issued when received by the court.

If that principle is good enough for a claim form, why is it not good enough for a judgment request?A.

When the CPR were being drafted there was a suggestion that the procedure for filing a defence be changed so that a late defence would be rejected.

It was not to be.

So long as the difficulties experienced in court offices continue to mean that the staff cannot process everything they receive immediately, they have to prioritise.

Conscious that they must not enter a default judgment when the defendant is not in default, the staff have prioritised defences so that they are logged immediately on receipt.

A request for a default judgment which reached the court before the late defence may therefore come up for attention only after the defence has been logged.

The Court Service takes the view that, since the defendant at that point of time is not in default of defence, the default judgment cannot be entered.

Whatever the theoretical position, the practice seems to serve the overriding objective.

Where judgment has been entered in these circumstances, an application to set aside would be almost inevitable.

The costs (to the parties and the court) of such an application are saved and it is still open to the claimant to invite the district judge to s trike out a defence which is spurious or misconceived or, in a less obvious case, to apply for summary judgment.Q.

In domestic violence cases, I generally prefer to use the Protection from Harassment Act 1997 (PHA) rather than part IV of the Family Law Act 1996 (FLA), but I have encountered conflicting practice between the courts about whether district judges can take injunction applications under the former.

Having to go before a circuit judge can cause considerable delay on an ex parte application.

I find PD2B unhelpful.

Is it right that a district judge can only take a PFH application if there is a money claim not exceeding £15,000? Does this not make a mockery of the system that jurisdiction can be vested in a district judge simply by inserting a claim for 5p damages? I see that district judges can issue warrants under the PFH Act, so why not injunctions?A.

The PHA does not create a new civil remedy (merely a new tort) and so does not deal with the jurisdiction of district judges to make injunctions in the same way that the FLA does.

Therefore, the usual provisions relating to injunctions in civil cases apply.

The panel agrees that the way they work is illogical, particularly in the light of PHA expressly giving district judges jurisdiction in relation to enforcement and in the light of the district judges' full jurisdiction in the similar area of FLA injunctions.

As to your preference, it is appreciated that a claim for damages can be tacked on to a claim under the PHA and that breach of a PHA injunction may constitute a criminal offence but some district judges have been known to refuse to exercise the court's jurisdiction to grant a PHA injunction where they have considered that the FLA provided a more appropriate remedy.Q.

I am painfully aware of the strictness of CPR rule 7.6(3) which deals with applications after the initial four months to extend the time for service of a claim form.

However, neither rule 7.6(3) nor the Court of Appeal appear to have addressed the problem which can arise where a defendant is added or substituted.

If there is an addition or substitution after four months, how is service outside the four months to be dealt with? The claimant may have acted faultlessly but how can he get round rule 7.6(3)?A.

The panel considers that on a defendant being added or substituted, the claimant is not applying to extend the time for service on that defendant under rule 7.6(3) so that the difficulty does not arise.

The overriding objective would seem to demand that the claim form should be treated for these purposes as issued against the defendant when he is added or substituted and that unless the court orders otherwise, the four (or six) months mentioned in rule 7.5 should run from that date.

Where the case has been in existence for any length of time, the order giving permission to add or substitute is anyway likely to include a direction under rule 19.4(6)(b) ('When the court makes an order for the removal, addition or substitution of a party, it may give consequential directions about -- serving relevant documents on the new party .

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.').

A claimant who is unhappy about relying on this reasoning can, of course, protect his position by asking for an express direction under that rule when he applies for permission.