The Court of Appeal has explored the ambit of CPR 3.3(5) and the power to set aside an order made by the court of its own initiative.
On 11 December 2012 Swift J sitting in the High Court of Justice Birmingham District Registry made a General Civil Restraint Order (‘GCRO’) against Mr Deeds. Paragraph 6(1) of the order stated that Mr Deeds had the right to apply to have it set aside without obtaining prior permission and such an application would be heard by a High Court Judge.
Mr Deeds made such an application to set aside the order. The application was considered by Males J on 15 February 2013, who refused the application on the papers. Mr Deeds then applied to set aside the order of Males J on the grounds that he had been denied an oral hearing and a chance to explain why the GCRO should not have been made. Morgan J refused to set aside the order of Males J, ruling that he was entitled to consider the application without a hearing.
On appeal, the CA held that Mr Deeds had been the victim of a serious procedural error. The CA accepted in some circumstances a court may deal with an application under CPR 3.3(5) without a hearing when a party may make appropriate representations in writing. It was nonetheless a matter for concern that Mr Deeds had not had the opportunity at any stage to explain orally to the court why the GRCO should not be made against him.
At paragraph 5 of the Judgment Lewison LJ commented that “Whether a party is entitled to a oral hearing will depend on the nature of the order in question but in a case where a citizen’s right of access to the court is at stake the presumption must be made in favour of an oral hearing.”
Permission to appeal was granted and Mr Deeds’s application to set aside the GRCO is to be heard at an oral hearing before a High Court Judge.
Vaughan Jacob / 1st Feb 2014
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