Possession action - notice of hearing date not given to defendant - judgment in default of appearance at trial - defendant to show reasonable prospect of success in order to set aside judgment

Hackney London Borough Council v Driscoll: CA (Lords Justice Kennedy, Brooke and Mr Justice Holman): 16 July 2003

In 1996, the local authority, as the mortgagee of the defendant's property, brought possession action for non-payment of mortgage instalments.

On the first hearing date, attended by both parties, the court adjourned the hearing for a new date to be notified to the defendant.

In November 1996, a possession order was made against the defendant, who had not been informed of the hearing date and so did not attend.

On 26 January 2001, the defendant applied to set aside the possession order on the ground that, between 1997 and 1999, he had been receiving treatment in a hospital as a mental patient, but his application was refused.

The defendant appealed.

Andrew Gumbiti-Zimuto (instructed by Kirk & Partners) for the defendant; Edmund Robb (instructed by Solicitor, Hackney London Borough Council) for the claimant.

Held, dismissing the appeal, that the principle in White v Weston [1968] 2 QB 647, only applied to a case in which a judgment had been given against the defendant who had no knowledge of the proceedings at all; that in a case where a defendant had taken part in proceedings, the hearing of which had been adjourned for a new date to be notified to him, but he had not been so notified, the defendant, in addition to making his application to the court immediately after learning about the default judgment giving reasons for his absence, should also show the court that he had a reasonable prospect of success at the trial pursuant to CPR, rule 39.3(5).