Court of Appeal
Published November 2, 2007
Lambeth London Borough Council v Onayomake
Before Lord Justice Chadwick, Lord Justice Tuckey and Lord Justice Maurice Kay
Judgment October 19, 2007

Where a counterclaim had been made on substantial grounds in a possession action, it was a disproportionate exercise of judicial power to strike out a defence and counterclaim when the defendant’s legal representative had failed to file a check list on time. The district judge was wrong to refuse relief simply because the defendant’s legal representative was late in attending the case-management hearing to explain the failure.

The Court of Appeal so stated allowing an appeal of the defendant, Gabriel Onayomake, from the dismissal by Mr Recorder Widdup on January 24, 2007 of his appeal from the refusal by District Judge Zimmels at Lambeth County Court on July 17, 2006 to grant relief from his order, dated May 23, 2006, striking out the defence and counterclaim in a possession claim brought by Lambeth London Borough Council.

Mr Robert Latham for Mr Onayomake; Mr Ashley Underwood, QC and Mr Tobias Eaton for Lambeth.

LORD JUSTICE TUCKEY said that the council claimed possession against the defendant on the ground that he was a tolerated trespasser. The defence and counterclaim was that he was a secure tenant by succeeding his late mother who had been a secure tenant.

District Judge Zimmels gave directions including filing a pretrial check list by May 10. The council filed and the defendant failed to file, because through the fault of his legal representative. At the case management hearing, the defendant’s legal representative was late, the defence and counterclaim were struck out and the claim was fixed to be heard as undefended.

The striking out order was disproportionate. District Judge Zimmels was plainly wrong in making that order and in his failure to exercise his discretion to grant relief. The recorder should have allowed the appeal.

This court would allow the appeal. Lord Justice Maurice Kay and Lord Justice Chadwick agreed.

Solicitors: Hartnells, Camberwell; Mr Glen Egan, Brixton.

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