PRACTICE — Possession proceedings — Defence and counterclaim on substantial grounds — Defendant’s legal representative failing to serve check list or to attend case management hearing — Defence and counterclaim struck out and case listed for hearing as undefended — Refusal of application for relief from striking-out order — Whether refusal disproportionate — CPR r 55.8

Southwark London Borough Council v Onayomake

CA: (Chadwick, Tuckey and Maurice Kay LJJ): 19 October 2007

It was a disproportionate exercise of power to strike out a defence and counterclaim based on substantial grounds in a possession action merely because the defendant’s legal representative had failed to file a check list and had been late for the court management hearing to explain the failure.

The Court of Appeal so stated allowing an appeal of the defendant, Gabriel Onayomake, from the decision of Mr Recorder Widdup dated 24 January 2007 dismissing an appeal by the defendant from the decision of District Judge Zimmels in Lambeth County Court dated 17 July 2006 refusing to grant relief from his order dated 23 May 2006 striking out the defence and counterclaim in a possession claim brought by London Borough Council of Lambeth.

TUCKEY LJ said that the claim was a possession claim to which CPR r 55 applied. The council claimed possession against the defendant on the ground that he was a tolerated trespasser. The defendant’s defence and counterclaim was that he was a secure tenant by succeeding his mother who had been a secure tenant when she died. On 22 March 2006 District Judge Zimmels in Lambeth County Court allocated the case to the fast track and gave directions for, inter alia, the filing of pre-trial check lists by 10 May which the defendant had failed to do. The failure was solely the fault of the legal representative of the defendant. On 23 May 2006 a case management was fixed before District Judge Zimmels. The defendant’s legal representative was late arriving at court and the defence and counterclaim were struck out and the claim was listed to be heard on 17 July as undefended; when the legal representative reached the court she was told that the hearing was over. On 17 July District Judge Zimmels refused the defendant’s application for relief from the striking out order and made a possession order, which was affirmed on appeal. The striking out order was a disproportionate sanction for the failure to file a check-list and late arrival at court for the case management hearing. The argument that damages were recoverable for the solicitors’s negligence was not appropriate as they could not compensate the tenant for the loss of his home. The district judge was plainly wrong in making the striking out order and in his failure to exercise his discretion to grant relief and the recorder should have allowed the appeal. The defendant’s appeal would be allowed.

Maurice Kay and Chadwick LJJ agreed.

Appearances: Robert Latham (Hartnells) for the defendant; Ashley Underwood QC and Tobias Eaton (Southark Legal Service) for the council.

Reported by: Ken Mydeen, barrister