West Law Report

Applying to set aside orders

Posted in Times Law Report by mrkooenglish on February 19, 2009

From The TimesFebruary 4, 2009

Applying to set aside orders
Court of Appeal
Published February 4, 2009
Raja v Van Hoogstraten (No 9)

Since the introduction of the Civil Procedure Rules, applications for the setting aside of orders made without notice were governed by rule 23.10, and determined by the court exercising the discretion given by that rule in accordance with the overriding objective to do justice.

Where the order was one which affected the rights of the affected party in an important respect, it would be only in exceptional circumstances that the discretion would not be exercised to set aside the order, the crucial point being that the court should arrive at a just result.

The Court of Appeal (Lord Justice Mummery, Lord Justice Dyson and Lord Justice Maurice Kay) so held in a reserved judgment on December 17, 2008, when dismissing the appeal of the intervener, Tombstone Ltd, from the judgment of Mr Justice Lightman (The Times August 23, 2007) when he dismissed its claim, as intervener in a claim by the estate of Mohammed Sabir Raja and Nicholas van Hoogstraten, that an order and an amended writ of sequestration made in favour of the estate and its solicitors, Healys, had been irregularly obtained.

LORD JUSTICE MUMMERY said that there was no point in exercising the court’s inherent jurisdiction if that involved adopting the same approach and would lead to the same result as an application of the rules.

And it would be wrong to exercise that inherent jurisdiction to adopt a different approach and arrive at a different outcome from that which would result from an application of the rules: Nelson v Clearsprings (Management) Ltd ([2007] 1 WLR 962).

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