Sophie Howard of our Personal Injury, Clinical Negligence and Inquests teams looks at the recent case of Owen v Black Horse Limited [2023] EWCA Civ 325, dealing with the question of whether a party can attend a hearing via their personal representative in a small claim.
It has been argued that where a claimant or defendant has failed to attend the small claims final hearing, even though they are represented, their claim or defence should be struck out pursuant to CPR 27.9. The Court of Appeal’s recent judgment in Owen v Black Horse Limited [2023] EWCA Civ 325 confirms that a party does “attend a hearing” if they are represented, even if they are not in attendance personally.
The relevant rules
CPR 27.9, headed “non-attendance of parties at a final hearing” provides:
…(2) If a claimant does not –
(a) Attend the hearing; and
(b) Give the notice referred to in paragraph (1),
The court may strike out the claim.
(3) If –
(a) a defendant does not –
(i) attend the hearing; or
(ii) give the notice referred to in paragraph (1); and
(c) The claimant either
(i) Does attend the hearing; or
(ii) Gives the notice referred to in paragraph (1),
The court may decide the claim on the basis of the evidence of the claimant alone.
(4) if neither party attends or gives the notice referred in in paragraph (1), the court may strike out the claim and any defence and counterclaim.
The notice in CPR 27.9(1) is written notice given to the court at least 7 days before the hearing that they will not attend and requesting the court to decide the claim in their absence.
Civil Procedure Rule 27.11 provides:
1. A party –
(a) Who was neither present nor represented at the hearing of the claim; and
(b) Who has not given written notice to the court under CPR 27.9(1),
May apply for an order that a judgment under this Part shall be set aside and the claim re-heard.
CPR 39.3 (which does not apply to small claims) provides that the court may proceed with a trial in the absence of a party but if the claimant does not attend, it may strike out his claim and any defence to counterclaim; and if a defendant does not attend, it may strike out his defence or counterclaim (or both).
Background to the case
In Owen v Black Horse Limited, the claimant did not attend the small claims final hearing, but his solicitor did. An email had been sent to the court and the defendant’s solicitors but it did not comply with the notice requirements in CPR 27.9(1). The claim was struck out by DDJ Sandercock under CPR 27.9. The claimant appealed on the basis he had attended through his legal representative. The first appeal was dismissed by HHJ Jarman who found that the word ‘attend’ in CPR 27.9 means ‘be physically present’.
Judgment of the Court of Appeal
In the Court of Appeal, it was noted by Lady Justice Laing that there was no Court of Appeal authority on the interpretation of CPR 27.9 or CPR 39.3. However, the judgment of Gross J in the case of Rouse v Freeman (The Times, 8 January 2002) was referred to where it was stated that giving the words in CPR 39.3 their natural meaning, he could not agree that a party ‘does not attend’ when his legal representatives are present at trial. A party was present ‘by or through his legal representatives’.
The case of Falmouth House Limited v Abou-Hamdan [2017] EWHC 779 (Ch) was also referred to, it being noted that Nugee J commented that it was well established and uncontroversial that a person who is party to litigation has a right to appear by counsel and that he was unaware of any general requirement for a litigant who appears by counsel himself to be physically present in court. In Falmouth House, the order listing the case for trial provided that if the defendant did not attend the trial in person, his defence and counterclaim would be struck out and judgment entered for the claimant. Nugee J held that this order required the defendant to attend the trial in person, and not by his representatives, and therefore there had been a breach of the order by the defendant due to his absence from the trial.
In Owen Laing LJ stated that the views of Gross J and Nugee J were obviously right as respect CPR 39.3. Whilst acknowledging that there are significant differences between the small claims track and the other tracks, it was held that there was no good reason why similar provisions in Part 27, with apparently similar functions, are to be interpreted differently.
The respondent in Owen argued that the reference to ‘neither present nor represented’ in CPR 27.11 that was absent in CPR 27.9 was deliberate. If a party did not attend personally but their legal representative did, they would not be able to apply to set aside the judgment under CPR 27.11. However, if they did not attend personally and were not represented they could make an application under CPR 27.11. The respondent argued this was not unfair because the legal representative would be able to make submissions at the final hearing as to why the judge should not strike out the claim.
Laing LJ noted that the consequence would be that a party who does not attend the hearing in person and is not represented is in a better position than a party who does not attend but is represented. Further, a party who attended personally would be in a better position than a party who did not attend personally but was represented. The former not exposed to the risk of having his case struck out. Laing LJ concluded that neither is a rational outcome.
The appeal was allowed.
Comment
The Court of Appeal has given much needed clarity on this point. A party who does not attend a small claims final hearing but is legally represented is not exposed to the risk of having their case struck out pursuant to CPR 27.9. Of course, where a claimant is absent from a final hearing they run the risk of failing to prove their claim, and a defendant who does not attend runs the risk of the claimant succeeding in the absence of the live evidence of a defendant who is available for cross-examination.