RELIEF FROM SANCTIONS GRANTED TO DEFENDANT WHO APPEARED BY COUNSEL: A “SURPRISING STATE OF AFFAIRS” PUT RIGHT

There may well be a term for the process by which a number of decisions, which appeared sensible at the time they were made, lead to a ridiculous result. This principle may well apply to what happened in Falmouth House Limited -v- Abou-Hamdan [2017] EWHC 779 (Ch). A defendant, who did not intend to give evidence, instructed counsel to attend a trial on his behalf.  Because the defendant was not present in person the defence was struck out and judgment entered.  The defendant appealed and the appeal was allowed.

KEY POINTS

• An order striking out a defence because the defendant failed to appear personally at trial (but appeared by counsel) was set aside.
• The defendant’s failure to appear in person was not a serious or significant breach.
• The peremptory order that stated that the defendant must appear in person should probably have not been made, although there could be circumstances where the court compelled a party to attend this was not one of them.
• It was appropriate for the defendant to appear by counsel.
• A District Judge did have jurisdiction to vary a case management decision made by a circuit judge and could have considered an application to allow the defendant to give evidence by video link.

THE CASE

The claimant claimed £30,000 in rent arrears. The defendant disputed the claim.

• The original trial date was adjourned. When making the order the judge ordered that if the defendant did not attend in person his defence and counterclaim would be struck out. (the “Mitchell” order).
• The court later rejected an application that the defendant give evidence by video link (on the basis that this involved a breach of the order that he must attend in person. (the “Langley” order).
• The defendant instructed counsel to attend the hearing. He did not intend to give evidence. However because he was not present the defence was struck out (the counterclaim having been abandoned). (“the Saggerson order”

THE JUDGMENT OF MR JUSTICE NUGEE: A “SURPRISING STATE OF AFFAIRS”

The practical effect of all three Orders taken together is that Mr Abou-Hamdan has had judgment for a significant sum entered against him as a sanction for not attending the trial in person despite the fact that he had instructed counsel to appear for him at trial.

1. 1. That seems on the face of it to be a somewhat surprising state of affairs. There are two features of the way in which civil litigation is conducted in this country that I would have thought were well established and uncontroversial. The first is that although an individual who is a party to litigation has a right to appear in person and represent himself at trial (and these days of course is often obliged to do so for practical reasons), he or she also has a right to appear by counsel. In criminal cases Art 6(3)(d) of the European Convention on Human Rights confers an express right on anyone charged with a criminal offence to “defend himself in person or through legal assistance of his own choosing”; although that only applies to criminal cases, my understanding is that in England at any rate it reflects a common law principle which applies equally in civil cases. I am not aware of any principle which would prevent a litigant from appearing by counsel. Nor am I aware of any general requirement for a litigant who appears by counsel to be himself physically present in court: at many hearings this is entirely unnecessary.

   2. The second feature of civil litigation is that a party is in general entitled to form their own view whether to give evidence or not. A claimant is not obliged to give evidence if he can make out his case by some other evidence or by admissions; a defendant is not obliged to give evidence if he can make out a defence by other evidence, or if the claimant has failed to establish his case. A defendant who has decided not to give evidence can still cross-examine the claimant’s witnesses with a view to showing that the claimant has failed to make out his case; or a defendant may decide at the end of the claimant’s case to elect not to call any evidence and submit that there is no case to answer. All of this is very familiar and (largely) unaffected by the Court’s case management powers under the CPR. In saying this, I am referring to the ordinary run-of-the-mill trial; I am not addressing unusual circumstances where the Court may have power to compel the attendance of a party for the purposes of cross-examination, but about the usual mode of trying civil claims.

   3. It follows from these two features of civil litigation that there is nothing on the face of it irregular, contrary to the rules, improper, or even very exceptional about a defendant who (i) instructs counsel to appear at trial on his behalf and (ii) does not himself propose to give, or call, evidence. In practice such a defendant will necessarily be confined in his defence to having counsel cross-examine the claimant’s witnesses, scrutinise the evidence the claimant has adduced, and submit that on that evidence, or as a matter of law, the claimant’s claim has not been made out, or not made out in full. But there is no reason why he should not adopt such a course if he wishes to. And if that is the course he proposes to adopt, there would equally seem on the face of it no reason why the defendant should have to attend court in person. If he is neither going to be representing himself, nor giving evidence, there is no obvious purpose served in requiring him to attend personally, “in order” (as it was put in a skeleton argument filed on Mr Abou-Hamdan’s behalf for permission to appeal) “to sit at the back of the court”.

   4. By the time of the trial fixed for 14 December 2015, this was Mr Abou-Hamdan’s position. He had instructed counsel to appear for him. He had abandoned his counterclaim, and so was limited to defending FHL’s claim. He was not proposing to give evidence. (There was a suggestion that counsel might rely on his witness statement as hearsay evidence under CPR 32.5(1) but it was accepted that in the circumstances it would be likely to carry very little weight). Counsel was ready for trial. And yet Mr Abou-Hamdan found that judgment for the full amount of the claim, and indemnity costs, was entered against him without his being able to contest the claim on its merits. That as I say seems a surprising result, and one whose justice is not immediately apparent: compare Rouse v Freeman (Times, 8 Jan 2002) at [16] per Gross J (commenting on CPR 39.1):

“Put quite simply, there are a great many situations where the personal attendance of the party is irrelevant or most unlikely. On analysis, a party’s personal attendance is only or principally likely to be of relevance, apart from the question of giving instructions, where that party is to give evidence. And if that is right then the remedy of a strike out seems inappropriate.”

THE DECISION ON APPEAL

The judge held that the defendant’s failure to attend the trial personally was not a serious or significant breach of the order to attend, bearing in mind the reason that the order was made.

1. These matters do not however seem to me to go the central question. What is significant to my mind is that none of what HHJ Saggerson says addresses the question of why paragraph 5 of the Mitchell Order was made in the first place and what the practical consequences were of Mr Abou-Hamdan appearing by counsel rather than coming over from the UAE to sit at the back of the court. What the Judge should have been focussing on was what difference it made to the conduct of the trial whether counsel proceeded to put FHL to proof of their service charges with or without Mr Abou-Hamdan sitting there. I cannot myself see that it would have made any difference in real terms to the efficiency or conduct of the trial.

2. In those circumstances I do not see that the breach – which, to repeat myself, consisted not of failing to attend trial, but of attending trial by counsel rather than in person – was one that merited the description of serious or significant. In truth it seems to me to have had no practical consequences for the conduct of the trial at all, save that if it were necessary for counsel to take instructions, it might be slightly less convenient to do so. Indeed, strictly speaking, all that Mr Abou-Hamdan had to do to comply with paragraph 5 of the Mitchell Order was to appear on the first day of the trial and then disappear again. That illustrates that the purpose of the Order was not to ensure the presence of Mr Abou-Hamdan personally at the back of the court throughout the trial but to ensure that the trial went ahead as planned.

3. It was in those circumstances that I allowed the appeal against the Saggerson Order. It is clear from Denton (as HHJ Saggerson himself recognised) that if the breach is not a serious or significant one, then the other considerations referred to in Denton are likely to be of little weight. Since I have found that HHJ Saggerson erred in finding that the breach was a serious and significant one, his decision must be set aside and it falls to me to make the decision again. On that basis, I have no hesitation in saying that the just and fair thing is for there to be a trial of the claim at which FHL can seek to prove its claim, and Mr Abou-Hamdan can seek by counsel to test whether the claim is made out.

4. That achieves what Mr Gloag said he wanted to achieve, which is the setting aside of the default judgment and the consequent opportunity for Mr Abou-Hamdan to have a trial of the claim. In the brief judgment I gave at the hearing I said I thought that made it strictly unnecessary to consider all the other issues which had been argued, and that I would give some brief views, without reaching final conclusions on them. Mr Gloag did not seek to dissuade me from that.

CONSIDERATION OF THE EARLIER ORDERS

The Mitchell Order

1. 1. So far as the Mitchell Order is concerned, I have already said that I do not think that HHJ Mitchell was intending by his judgment to secure the personal attendance of Mr Abou-Hamdan at trial under CPR 3.1(2)(c), or had in mind any of the purposes for which an order under that rule can be made. It is clear from the authorities which I have referred to that the Court does have a power to require a party to attend a hearing, and that one of the reasons why such a power might usefully be exercised is to encourage the parties to settle the case, and to ensure that there is an individual with suitable authority in court to promote a settlement.

   2. Ms Meech suggested some other possible reasons why a Court might take the view that the physical presence of a party at a hearing might be something which might be valuable and could properly be ordered. I am certainly not going to say anything which suggests that could not be done, but it is clear to me from the transcript (as I have already said) that that was not the consideration that HHJ Mitchell had in mind.

   3. When one looks at the transcript, it is not without significance that the application came before the Court as an application effectively by consent for an adjournment, as I have set out above. HHJ Mitchell expressed some views as to how litigants in person sometimes abuse the system by asking for last minute adjournments without making formal applications or paying application fees and on excuses which subsequently turn out to be ill-founded. I have no difficulty with the proposition that HHJ Mitchell is likely to have a far better understanding and more experience of how litigation is conducted in his court than I can, or with the proposition that judges are entitled to make robust case management directions with a view to ensuring that trials are effective and trial dates not lost. Indeed Mr Gloag himself accepted that Mr Abou-Hamdan’s application to adjourn was a late one, that HHJ Mitchell was entitled to be sceptical, and that he was entitled to impose case management directions with a view to ensuring that the adjourned trial would be effective.

   4. Nevertheless it is not clear to me that it was fair of HHJ Mitchell to impose an unless order, with the automatic consequence of the defence being struck out, on Mr Abou-Hamdan when, as pointed out by Mr Gloag, FHL was plainly in no position to proceed with the trial on 20 April either. Mr Kinnison never claimed the contrary. Indeed at page 10 of the transcript there is this exchange:

“HHJ Mitchell: … Your stance is “We do not really want to have the case adjourned, but given that he is not here and we have only just been instructed, it might be a sensible thing to do”.

Mr Kinnison: Yes. We have got to do it, because we have got to get trial bundles and things sorted out as well and it is not in the list in the court either.”

HHJ Mitchell appears to have accepted that as he says a bit later:

“…it may not be, let us put it this way, not entirely his fault, but it would have had to happen anyway, would it not really?”

to which Mr Kinnison replied “Yes”.

1. 1. Whether it was right for HHJ Mitchell to make an unless order against a litigant in person who was absent, and who had been told on the Friday evening by FHL’s solicitors that the adjournment was agreed, and had been provided with a draft order which (I infer) contained no hint of any intention to require him to attend the re-fixed trial in person, let alone under pain of losing his case, I rather doubt. It is the usual practice, for good reason, that if a party is going to seek an order against the other party, they should give adequate notice that that is what is going to be done. No doubt if one party is ready and willing to go ahead with a trial, and it has to be adjourned because of the other party’s absence, it may be appropriate to make an order designed to ensure that it does not happen a second time. But in the present case, Mr Abou-Hamdan had asked for an adjournment to which FHL had agreed for its own purposes, and Judge & Priestley had sent him a draft order providing for an entirely consensual re-fixing of the date, and he could I think be forgiven if he assumed that FHL were not going to ask for any further orders against him, or that he needed to instruct anyone to attend to protect his interests.

   2. Moreover the CPR already contains in CPR 39.3(1)(c) power to strike out a defence and counterclaim against a defendant who does not attend a trial. I think that it would have been fairer to Mr Abou-Hamdan in the circumstances for the order to draw attention to the fact that if he did not attend the trial at the re-fixed hearing, the Court would consider exercising its powers under that rule and be likely to do so. That would still have met HHJ Mitchell’s concerns, and his desire to prevent Mr Abou-Hamdan seeking to jeopardise the re-fixed hearing (“head him off at the pass”), but it would have had three advantages over the Order actually made. First, it would have enabled the Court to consider whether in fact the power should be exercised in the light of all the circumstances as they actually were at the time – it is in general a salutary principle that discretions should not be exercised in advance precisely because it is difficult to foresee all the various possible circumstances that might exist at a future date; second, it would have preserved for Mr Abou-Hamdan the right given him by CPR 39.3(3) to apply for the judgment or order to be set aside (subject to the requirements of CPR 39.3(4) and (5)); third, on the actual facts of this case, the power would never have become exercisable because attendance by counsel would suffice, as explained earlier, and all the problems later caused would have been avoided.

   3. Even if it was appropriate to make an unless order, there is a further point about the wording of the Order. What is clear from the transcript as I have said is that the concern of HHJ Mitchell was not the personal attendance of Mr Abou-Hamdan so much as the fact that there should not be any further adjournment and the trial, whenever fixed, should be effective. I have already set out the relevant passages in the transcript and pointed out that although Mr Kinnison, when he first raised the possibility of an unless order, used the words “attend in person”, HHJ Mitchell did not pick this up when he gave his decision at page 8 and instead simply said “if he does not attend the resumed trial”; and that neither he nor Mr Kinnison gave any consideration to what the position would be if he instructed counsel, or the necessity for him to be physically present if he did so.

   4. In those circumstances I do not think it was in fact appropriate for paragraph 5 of the Mitchell Order to include the words “in person”. In giving permission to appeal, Mann J said that there were grounds for saying that the Mitchell Order went too far “and was indeed an order which no court should make”. In the light of the fuller argument which I heard, particularly the most helpful submissions of Ms Meech, I accept that there are circumstances where the Court can properly require a party to attend a hearing and that includes a trial as much as any other hearing. But that as I have said was not what was going on here.

   5. I asked both counsel if they were able to tell me how the Order came to be drafted in the form which it did. The precise mechanics of the drafting are not 100% clear, but it does seem likely from the transcript, as Ms Meech suggested to me, that Mr Kinnison took his draft order, which had contained no unless order of sort, and added in paragraphs 5 and 6 in the light of the discussion he had with HHJ Mitchell, and sent it in to the Court for approval. Of course at that stage he would not have had a transcript and I am not suggesting that he deliberately slipped in words which he did not think were justified by the exchanges he had had. It must also be assumed that the final form of Order – which contains a footer showing that it was produced by a Richard Thorndike, who I infer is likely to have been a clerk at the County Court in Central London – will have been approved by HHJ Mitchell before being sealed. Nevertheless it can now be seen from the transcript that what he actually pronounced was that Mr Abou-Hamdan’s defence and counterclaim would be struck out “if he does not attend the resumed trial.”

   6. In those circumstances, if it had been necessary, and subject to the objection that the time for appealing should not have been extended, I would have held that the wording of paragraph 5 was not what HHJ Mitchell actually thought necessary for the considerations which he had in mind, and I would have said that it was inappropriate to require, without expressed consideration of the reasons for it, the personal attendance in court of Mr Abou-Hamdan in circumstances where, as I said at the outset of this judgment, it is a right of a litigant to appear by solicitors and counsel rather than in person if they so desire. That is not to say that there could never be circumstances in which a party could be required to attend a trial, and I have already referred to some suggestions as to when that could be the case, but I am satisfied that that was not what HHJ Mitchell had in mind, and that the consequences that Mr Abou-Hamdan has suffered were not what he intended.

   7. As I have said it is not however actually necessary to resolve that. Far less it is necessary to resolve the question whether the extension of time to appeal an Order made on 20 April 2015 but not appealed until January 2016 should be allowed to stand, and I do not propose to go into that question.

The Langley Order

1. 1. So far as the Langley Order is concerned, she gave two reasons for refusing to allow Mr Abou-Hamdan to give evidence by video-link, the first of which was that it would be in conflict with the Mitchell Order. As a matter of construction of the Order, I have already said that I agree with that.

   2. One of the points argued before me was whether she should have varied the Mitchell Order and there was some discussion before me as to whether it would or would not be appropriate for a District Judge to vary an Order of a Circuit Judge. I understand the reticence which DJ Langley felt in doing something in conflict with an Order of HHJ Mitchell. Nevertheless the technical position I think is that she did have power to vary the Order. CPR 3.1(7) provides:

“A power of the court under these Rules to make an order includes a power to vary or revoke the order.”

CPR 2.4 provides that where the CPR provide for the “the court” to do any act, then except where an enactment, rule or practice direction provides otherwise, the act may be performed in the County Court by any judge of the county court; and “judge of the county court” includes a District Judge: see CPR 2.3(1) and s. 5(1)(b) County Courts Act 1984. It seems to me to follow that a District Judge has power to vary an Order that has been previously been made by the Court, whether the Order was made by another District Judge or by a Circuit Judge. This also seems to me to be what one would expect. Certainly in the case of case management directions, it is frequently the case that it is appropriate to revisit them during the course of proceedings, and it would be unfortunate if because a particular direction had been made by a Circuit Judge, it could not be varied thereafter by a District Judge, however appropriate the variation might be. Similarly in the High Court it is an everyday occurrence for directions to be given by a High Court Judge – for example setting a timetable for steps towards trial after dealing with an interlocutory application – and thereafter for the timetable to be varied by a Master, and it would be very inconvenient if that could not be done.

1. 1. Whether such a variation should be made is another matter. Guidance on CPR 3.1(7) was given by the Court of Appeal in Tibbles v SIG plc [2012] EWCA Civ 518: see the conclusions drawn by Rix LJ from his survey of the jurisprudence at [39]. That includes the principle that it can be appropriate to exercise the power in CPR 3.1(7) where, among other things, there has been a material change of circumstances.

   2. In the present case it seems to me that there had been a material change of circumstances. At the time of the Mitchell Order, Mr Abou-Hamdan was a litigant in person. If he did not appear at trial, it would be likely therefore that the hearing would be ineffective. Before DJ Langley however he was represented by counsel and it was known that he intended to be represented by counsel at trial. That to my mind entitled the Court to reconsider whether it was necessary for him to be physically present, or whether appearing by video-link would suffice. Had DJ Langley been asked to vary the Order therefore, she would in my judgment have been entitled to do so, notwithstanding that the Order had been made by a Circuit Judge. I accept however, as Ms Meech submitted, that no application to vary the order was in fact made.

   3. In any event that was only one reason why DJ Langley refused the application; she also refused it on the merits. To overturn that would be to overturn a case management decision made in the exercise of her discretion, and there are well known limits on the appeal court’s powers to do that. Since it is not necessary for the purposes of this judgment to do so, I do not intend to lengthen this judgment by going into those questions.

   4. I should make it clear that if as a result of my setting aside the Saggerson Order there is now to be a trial, I regard it as open to Mr Abou-Hamdan to make a further application, if so advised, to give evidence by video-link and that the fact that DJ Langley in December 2015 declined such an order should not preclude or in any way prejudge the question on any renewed application. On any such application it would be in Mr Abou-Hamdan’s interests for his evidence in support of his reasons why he did not wish to come to the UK to be rather better expressed than they have been so far. The evidence that he produced in relation to the death threats which he said he was facing – evidence that was only produced half an hour before the hearing before DJ Langley – does seem to have left quite a lot to be desired. It is not necessary for me to go into the details.

Conclusion

1. Nevertheless, for the reasons I have given, I allowed the appeal against the Saggerson Order and set it aside. That therefore left the case as one in which a trial had not yet taken place; and left it to the parties to apply to the County Court sitting in Central London for directions for the issues to be tried, or – a suggestion which was not canvassed with counsel – since the counterclaim had been discontinued, to consider whether it would not be better for the matter to be heard by a tribunal which might have jurisdiction to deal with a dispute of this type.