Application to set aside a possession order
Court powers to set aside a possession order as if that order was never made depend on whether the possession order was made at a trial.
Set aside possession order
When an order is set aside it is as if that order was never made. An outstanding warrant of possession is automatically set aside. The court has the power to order a rehearing of the case or, if there are insufficient reasons to set aside, and the tenant has not already been evicted, to vary the order.
The matters the court can consider in deciding whether to set aside a possession order will depend upon whether the order was made at a trial or not. In addition there are particular provisions for an order made under the accelerated possession procedure.
Applications should be made using Form N244. There are detailed guidance notes accompanying the form to assist in its completion. The application should set out the information the tenant wants the court to take into account (see question 10 on form N244).
This can be provided in either:
a witness statement
a statement of the case
An application to set aside a possession order will not have the effect of automatically suspending a warrant for possession. If a warrant is due to be executed prior to the hearing of an application to set aside, an application to suspend or stay the warrant should also be made on the same N244 form.
Was the possession order made at a trial?
Most courts hear a number of possession claims during a morning or afternoon session. Typically the court will make a decision on a possession claim in a 5 to 10 minute hearing. The Court of Appeal has held that such hearings do not constitute a 'trial'.
The Court considered that there is a trial only if the case is not decided at the first hearing, but at a subsequent hearing with evidence and argument from both landlord and tenant. The first hearing in such cases would need to be adjourned. At that initial hearing, where the claim is genuinely disputed on grounds which appear substantial, case management directions are to be given, including allocation to a track. The aim of such directions must be to enable the court to make a final decision about the claim. When the case returns to court following the case management directions there will be a full trial. The Court considered that only in exceptional cases would there be a trial at the first hearing of a possession claim.
Setting aside a possession order made at a trial
If the possession order was made at a trial then the tenant must satisfy the three-stage test set out in Civil Procedure Rule (CPR) 39.3.
The court can only set aside a possession order if the tenant failed to attend the trial, and
has acted promptly after finding out that the possession order was made, and
had a good reason for not attending the trial, and
has a reasonable prospect of success at the trial.
There are no definitive guidelines of what constitutes 'acting promptly' or a 'good reason' for not attending the trial: this varies depending on the particular circumstances. The prospects of success depend upon the facts of the case and the ground upon which possession was sought, in particular whether the ground relied upon was mandatory or discretionary.
Unless all three stages of the test are satisfied the court cannot set aside the possession order.
Setting aside a possession order not made at a trial
If the order was not made at a trial the court can use its general powers of case management and consider any relevant matter in determining whether it will be just to set aside the possession order. CPR 3.9 sets out a useful guide to the matters the court can consider.
the interests of the administration of justice
whether the application for relief (to set aside) has been made promptly
whether there is a good explanation for the failure to attend the possession hearing (including any issues relating to valid service of notice of possession proceedings)
the effect the setting aside the order would have on each party
However, in the absence of any compelling or unusual factors the court should apply the three-stage test set out in Civil Procedure Rule (CPR) 39.3. Obtaining legal advice about a defence after the possession order was made is not a ground to set aside the order.
Accelerated possession procedure
The accelerated possession procedure can only be used to recover possession of an assured shorthold tenancy after the expiry of a section 21 notice. When the possession order was made under this procedure on the papers, ie without a hearing, the tenant has 14 days from receipt of the possession order to apply to the court to set aside the order.
To apply to set aside or to appeal
An application to set aside an order cannot be made when the correct route is to appeal, and vice versa. If the court has made a decision on the facts of the case, having heard from the defendant, a challenge is by way of an appeal.
There may be distinct grounds, unconnected with the applicant's absence from a trial, on which an applicant may be allowed to appeal, even if the applicant had or would have failed in an application under CPR 39.3 and, in such a case, the applicant's position is no different in principle from any other litigant.
Nevertheless there may well be practical difficulty in introducing new arguments or evidence that could have been presented at a trial which the applicant failed to attend.
The Court of Appeal has set out the criteria to be met regarding the use of fresh evidence in an appeal:
that the evidence could not have been obtained with reasonable diligence at the time of the hearing
that the new evidence would probably have an important influence on the result of the case, though it need not be decisive
that the evidence must be credible, though it need not be incontrovertible
Last updated: 26 March 2021
Governors of Peabody Trust v Hay (1987) 19 HLR 145, CA.
Forcelux Ltd v Binnie  EWCA Civ 854.
para 32, Forcelux Ltd v Binnie  EWCA Civ 854.
Grimason v Cates  EWHC 2304 (QB); CPR 6 - Service of documents.
Hackney v Findlay  EWCA Civ 8.
Sangha v Amicus Finance Plc (2020) EWHC 1074 (Ch)
Bank of Scotland v (1) Pereira (2) Pain (3) Pain  EWCA Civ 241
Bank of Scotland v (1) Pereira (2) Pain (3) Pain  EWCA Civ 241
Ladd v Marshall  1 WLR 1489 CA