Many landlords and agents will have come across the situation where they have successfully been granted an Order for possession and then receive from the Court (often the day before execution of a warrant) an application from a tenant requesting the Court to set aside an Order on the basis of grounds either previously advanced at the original hearing; or on matters not strictly relevant to the possession process. For parties not experienced with the Court process this can seem inherently unfair to landlords; and be seen as the tenant simply “playing the system”. From the solicitors point of view it is also often frustrating having to explain to the Client that the process must be gone through before possession can be obtained.
The Courts are required to give proper consideration to any application made. Generally applications should be heard at an oral hearing at which both parties should have the opportunity to attend. Recently this approach was affirmed by the Court of Appeal in Frey and others v. Labrouche  EWCA Civ 881 . In this case an application to strike out a claim was made. The Judge at the start of the hearing indicated that he thought the application was unsustainable and he was not going to hear from Counsel of the Appellant. The Appellant claimed that the judge’s refusal to hear the application was a breach of their fundamental common law right to present the case. The Court of Appeal agreed and stated that a judge could not properly dismiss the application without giving the applicant a fair opportunity to put its case. It was vital that justice was seen to be done.
Whilst it is accepted that judges can (and should under the Civil Procedure Rules) take a robust stance this does not preclude parties making applications and the Court should give proper consideration and allow oral argument. This is why applications, even when made at the eleventh hour are listed and heard even when this can delay the execution of a warrant or other process.