A tenant who applies to set aside a possession order made in their absence at court generally has to satisfy a three-part test laid down in the Court rules. They have to show (1) that they have a good reason for not having attended the hearing, (2) that they acted promptly on learning of the possession order and (3) that they have a reasonable prospect of successfully defending the possession claim. Alternatively, in appropriate circumstances it may be possible for a tenant to successfully appeal a possession order rather than apply to set it aside, if they can persuade the court that the judge who granted the order made mistakes in applying the law, or about relevant facts in reaching the decision.
In the recent case of Bank of Scotland v Pereira & Ors  the Court was required to consider the relationship between an application to set aside an order made at trial and an appeal against the order itself. The Court’s view was that if applicants believe that they can satisfy the three-part test laid down in the Court rules, generally they should make an application to set aside the order, even if there are alternative grounds for appealing the decision. If however they cannot satisfy the requirements of promptness and/or a good reason for non-attendance, then they should seek to appeal the decision, provided of course that grounds for appeal exist.
On an application to set aside, a tenant can put in evidence regarding the merits of their case which was not before the Court which made the possession order. However on an appeal a tenant will find it more difficult to rely on evidence which was not before the judge who dealt with the original order, if that evidence would have been before the Court had the applicant attended the trial.
Ross Burkitt | Solicitor
Litigation Department, Kerseys