It is not uncommon when dealing with unrepresented tenants for landlords to get to trial and for the tenant to either be completely unprepared or simply not attend. This often leads to tenants making late applications to set aside an order for possession which the landlord is trying to enforce by way of warrant for possession.

While incredibly frustrating for landlords, such applications must be dealt with properly and the recent case of TBO Investments Ltd v Mohun-Smith and another [2016] EWCA Civ 403, although not a landlord and tenant case, has provided guidance on the approach that the court should take when dealing with applications under CPR 39.3(3).

The facts of TBO Investments Ltd were as follows: TBO was the defendant to proceedings where it was alleged to have provided negligent investment advice. TBO disinstructed its solicitors shortly before trial and was ultimately represented by one of its directors (who also happened to be the principal witness for TBO). The director became unwell before the trial, applied for an adjournment, and did not attend the hearing. The court refused the director’s application for an adjournment, struck out TBO’s defence and entered judgment against it.

TBO applied to set aside the order pursuant to CPR 39.3(3) on grounds that:

  1. There was a good reason for non-attendance
  2. It had a reasonable prospect of success defending the claim.

The application was refused at first instance with the court not being satisfied that the application had been brought promptly and that insufficient medical evidence had been submitted.

TBO appealed the decision which was allowed. Part of the Court of Appeal’s reasoning was that the director who became unwell was TBO’s advocate and main witness which it considered was a good reason for non-attendance. Furthermore, the Court of Appeal considered that the director had acted promptly (the application was made within two weeks of the director becoming unwell).

The Court of Appeal held that the factors to be used when assessing the CPR 39.3(5) should be modified:

  • What constitutes promptness and what constitutes a good reason for not attending is fact-sensitive and "the court should, at least in many cases, not be very rigorous when considering the applicant's conduct".
  • CPR 39.3 is subject to the overriding objective to deal with cases justly.
  • The fact that an application to set aside fails does not prevent an application for permission to appeal the order.

The guidance for landlords in similar scenarios is therefore to ensure that it does not oppose such applications by tenants without first considering the specific facts of the case.