S - Setting aside
2/4/24
RAZEEM v DESAI [2024] EWHC 689 (Ch)
Reviews principles to be applied on a claim to set aside a judgment alleged to have been obtained by fraud [31]. On the facts, the claim was bound to fail and was struck out.
31/1/24
POTANINA v PONTANIN [2024] UKSC 3
The court confirmed that the usual procedure for the hearing of an application to set aside an order obtained without notice is a re-hearing on the merits (although a minority held that the position should be different in relation to certain orders made in family proceedings).
1/7/20
FATIMA v FAMILY CHANNEL LTD [2020] EWCA] Civ 824
Considers the test under CPR r 39.3(3) for setting aside an order made at a trial which the defendant did not attend on medical grounds associated with severe anxiety [35]. Confirms that the approach under r 39.3(3) is less draconian than the approach to an application to adjourn a trial. The judge hearing the set aside application is, therefore, entitled to reach a different decision on the same facts to the trial judge who refused an adjournment.
19/6/20
BALENGANI v SHARIFPOOR [2020] EWHC 1571 (QB)
The claimant had not acted promptly in applying to set aside a court order and judgment. The court considered the principles to be applied in setting aside an order under CPR r 23.11 and a judgment made at a trial under CPR r 39.3(5), and the need to satisfy the requirements for relief from sanction in CPR r 3.9 in relation to both applications. Although the claimant had suffered significant injuries in an accident, he had known of the hearings but for reasons of his own had lost interest in his claim and had decided to take no further part in the proceedings.
4/6/20
COPELAND v BANK OF SCOTLAND PLC [2020] EWHC 1441 (QB)
A possession order had been made in favour of a mortgagee at a hearing which the defendant did not attend. The defendant appealed against the court’s refusal to set aside the possession order. The appeal court considered CPR r 39.3 and summarised principles to be applied [11]. On the facts the appellant’s defences stood no real prospect of success. The court considered when a defendant has good reason not to attend the possession hearing on medical grounds [72]. Although the test applied by the court below had been too rigorous, the court had correctly concluded that the defendant had not demonstrated good reason.
26/5/20
RIDLEY v DUBAI ISLAMIC BANK PJSC [2020] EWHC 1213 (Comm)
Considers principles to be applied on applications to set aside an order granting permission to serve out of the jurisdiction under CPR r 6.36 [60] and to serve by alternative means under CPR r 6.15 [89].
15/5/20
ELU v FLOORWEALD LTD [2020] EWHC 1222 (QB)
The court struck out proceedings in which it was claimed that an earlier judgment had been obtained by fraud. The court reviewed the principles of res judicata and abuse of process [87] and the application of these principles where a judgment is alleged to have been obtained by fraud [105]. There must usually be fresh evidence which was not known at the time of trial [153]. There may be exceptional cases where the evidence of fraud is known but cannot be deployed [156] but here the facts were known at the time of the trial. The claim was barred by res judicata and was an abuse of process.
5/5/20
SANGHA v AMICUS FINANCE PLC [2020] EWHC 1074 (Ch)
A possession order made in favour of a mortgagee at a hearing attended by the mortgagor was a final order, not an interim order [28]. Considers the test for setting aside a final order [34]. To set aside a final order using the power under CPR r 3.1(7) exceptional circumstances are required [36]. If the defendant attended the possession hearing, CPR r 39.3(5) does not apply [44].
1/5/20
BROOMHEAD v NATIONAL WESTMINSTER BANK PLC [2020] EWHC 1005 (Ch)
Considers the test for pleading dishonesty [18] and the circumstances in which a judgment will be set aside on grounds that it was obtained by fraud [19]. Stresses the need to identify sources of information and belief in statements making serious allegations of dishonesty [32]. On the facts the claim was inadequately pleaded, bound to fail and the particulars of claim would be struck out but the claimant would be given an opportunity to re-plead its case and seek permission to amend.
19/3/20
LOMBARD NORTH CENTRAL PLC v EUROPEAN SKYJETS LTD [2020] EWHC 679 (QB)
When the claimant demanded repayment of a loan it had wrongly believed there were arrears of $300k when the arrears were only $179.99. The court allowed an appeal against a refusal to set aside a default judgment. It was arguable with a real prospect of success that the arrears had been de minimis [45], that the claimant had a duty to state the debt with reasonable accuracy [47], or that there was an estoppel preventing the claimant relying on the lower sum as a default [48]. Discusses arguments that the contract contained penalties or that the defendant could seek relief from forfeiture [50] [57]. The fact that the arrears were so small also meant there was “some other” reason to set aside the judgment. Considers the impact of delay in applying to set aside the judgment [106] and considerations common to set aside and summary judgment applications [120].
20/3/19
TAKHAR v GRACEFIELD DEVELOPMENTS LTD [2019] UKSC 13
Considers the circumstances in which fraud will unravel a judgment in a prior claim and lead to it being set aside. It is not necessary to show that evidence of the fraud could not, with reasonable diligence, have been obtained and produced at the earlier trial.
21/12/18
GIBBS v LAKESIDE DEVELOPMENTS LTD [2018] EWCA Civ 2874
A court order is binding and effective until set aside, even if the order was obtained by fraud. Therefore even if a possession order was liable to be set aside for non-service of proceedings, the tenant could not recover the proceeds of sale of the property on the basis of unjust enrichment and it was now too late for the tenant to seek to set the order aside.
20/6/17
PROMPT MOTOR LTD v HSBC BANK PLC [2017] EWHC 1487 (Ch)
The court dismissed the claimant's application under CPR 3.1(7) to set aside earlier orders dating back to 2011 granting summary judgement and refusing permission to appeal. The court had no jurisdiction, under CPR 3.1(7), to set aside the orders in respect of what was a very stale claim. Even if there was jurisdiction, the court would not have exercised its discretion to set aside the orders because there had been nothing to affect the validity of the bank's letter of demand, nor was there anything to prevent individuals who had been involved in working for the bank on the affairs of the borrower at an earlier date, from being appointed as administrative receivers.
22/7/15
VAN COLLEN v VAN COLLEN [2015] EWHC 2184 (Ch)
There had been no good reason for the first defendant's non-attendance at an adjourned trial and no sufficient reason for a further adjournment. The first defendant’s application under CPR r 39.3 to set aside an order striking out the defence was dismissed.
25/2/15
AVANESOV v SHYMKENTPIVO [2015] EWHC 394 (Comm)
The court refused to set aside judgment in default of acknowledgment of service. Although there was a realistic defence, the set aside application had not been made promptly under CPR 13.3(2). There had been a delay of 8 months which was a lengthy, serious and highly culpable default. The specific considerations which CPR 3.9 required to be given weight pointed to the same conclusion.
1/4/14
COGHLAN v BAILEY [2014] EWHC 924 (QB)
Considers the legal principles on which a judgment can be impeached on grounds of fraud. On the facts the allegation stood no real prospect of success.
16/7/13
WATSON v SADIQ [2013] EWCA Civ 822
Considers when a consent order may be set aside for lack of consent or duress [47] and the extent to which pressure from a trial judge to settle may be a ground on which to set a consent order aside for procedural unfairness [53]. On the facts neither ground was made out and the appellant had affirmed the consent order by later conduct.
10/6/13
DE FERRANTI v EXECUZEN LTD [2013] EWCA Civ 592
A default judgment entered without notice to the defendant should not be set aside under CPR r 3.10 unless the court is satisfied that the defendant has a defence with a real prospect of success or there is some other good reason to set the judgment aside.
12/4/13
ROYAL BANK OF SCOTLAND PLC v HIGHLAND FINANCIAL PARTNERS [2013] EWCA Civ 328
Considers principles to be applied in setting aside court orders on grounds of fraud and deliberate concealment [106] and when equitable relief may be refused on grounds of ‘unclean hands’ [158].
27/2/13
ACTIVE PHOTONICS AG v GB SOLO LIMITED [2013] EWPCC 9
A defendant was refused relief from sanction after filing a defence 3 days late in contravention of an unless order and failing to explain the delay.
28/2/13
TRAVEL & HOLIDAYS LLC v HAJJ CHARTER [2013] EWHC 1212 (QB)
Relief from sanction of striking out granted for non-compliance with an unless order for payment of costs where payment had been made one day late.
22/2/13
GOVERNOR AND COMPANY OF THE BANK OF IRELAND v RAFIQ [2013] EWHC 768 (Ch)
A defendant who made a conscious decision not to defend a claim would not be entitled to set aside default judgment. Even if the defendant had a bona fide defence, the court would exercise its discretion against her in view of her excessive and deliberate delay.
21/12/12
BEEVER v RYDER PLC [2012] EWCA Civ 1737
Relief from sanction of striking out for non-compliance with an unless order granted where the defendant had written to the court inviting it to make an unless order for the claimant’s failure to serve a costs schedule, but had not copied the letter to the claimant and the unless order had been made without the claimant being heard.
21/11/12
MANNION v GINTY [2012] EWCA Civ 1667
An appeal against a refusal to grant relief from sanction was dismissed where the defendant had failed to comply with an order for disclosure, an unless order, and had failed to file appeal documents on time. The court stressed the importance of upholding robust but fair case management decisions.
10/10/12
TINKLER v ELLIOTT [2012] EWCA Civ 1289
The requirement in CPR 39.3 that an applicant to set aside judgment “acted promptly” is mandatory and a matter of evaluation, not a matter for the exercise of discretion.
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