THE CONSEQUENCES OF FAILING TO FILE AN ACKNOWLEDGMENT OF SERVICE: NO INJUSTICE WHEN A DEBARRED PARTY ATTENDED A TRIAL BY SKYPE: COURT OF APPEAL DECISION

In Hirachand v Hirachand & Anor [2021] EWCA Civ 1498 the Court of Appeal rejected an argument that a defendant, who had not filed an acknowledgement of service and had been debarred from taking part in the action, suffered injustice when they attended a trial by video link.  The defendant was deaf, but means were available for her to participate.   It was significant that, having failed to file an acknowledgment of service, she was allowed to attend but not participate in the hearing in any event.

“…debarring orders should mean what they say and that a litigant who is debarred as a consequence of their own failure to comply with the rules cannot expect nevertheless to be entitled to have made available to him or her all the proper and carefully developed protections which have been put in place over the years to ensure that a participating party can put their case effectively. In my judgment there is no obligation on a court proactively to manage the attendance of a debarred party…”

THE CASE

The claimants brought an action under the the Inheritance (Provision for Family and Dependants) Act 1975.  The defendant to the claim (who had previously been legally represented) did not file an acknowledgment of service.  An order was made barring the defendant from participating in the hearing.    However the defendant did attending hearing remotely.  The defendant is deaf and a care worker remained with the defendant throughout and passed her notes and wrote down any questions.

The judge made an award under the Act.  The defendant appealed that award, one of her arguments was that the process had been unfair.

THE DEFAULT JUDGMENT

King LJ pointed out that the rules expressly disallow a party, after a default judgment, from taking part in the hearing.

1. 1. CPR r.8.4 to 8.6 provide as follows:

“Consequence of not filing an acknowledgment of service

8.4

(1) This rule applies where –

(a) the defendant has failed to file an acknowledgment of service; and

(b) the time period for doing so has expired.

(2) The defendant may attend the hearing of the claim but may not take part in the hearing unless the court gives permission.

Filing and serving written evidence

8.5

(1) The claimant must file any written evidence on which he intends to rely when he files his claim form.

(2) The claimant’s evidence must be served on the defendant with the claim form.

(3) A defendant who wishes to rely on written evidence must file it when he files his acknowledgment of service.

(4) If he does so, he must also, at the same time, serve a copy of his evidence on the other parties.

(5) ……

(6) …..

(7) …….

Evidence – general

8.6

(1) No written evidence may be relied on at the hearing of the claim unless –

(a) it has been served in accordance with rule 8.5; or

(b) the court gives permission.

(My emphasis)

1. 1. In summary therefore, absent permission having been granted by the court, a defendant who fails to file an acknowledgment of service and simultaneously to file their written evidence may attend the subsequent hearing but cannot take part in the proceedings and may not rely on any written evidence.

1. The Appellant, having declined to file an acknowledgement of service, first became subject to the sanctions imposed by CPR 8.4(2) on 29 March 2018. At a hearing on 18 June 2019 the Appellant was granted relief from sanctions by consent and a new deadline of 22 July 2019 was agreed. That deadline also passed without an acknowledgement of service or evidence being filed. The court was told that at some stage later an acknowledgement was sent, out of time, without evidence and without an application for relief from sanctions.

COURT OF APPEAL’S REJECTION OF ARGUMENT BASED ON ATTENDANCE BY VIDEO LINK

The Court did not accept an argument that attendance by Skype made the hearing unfair.

1. 1. In my judgment there is no merit in that part of the ground which complains that the Appellant attended by video link. In that respect, the Appellant was in no worse a position than thousands of other people who, unlike the Appellant, were entitled to participate in their litigation and had to conduct their cases remotely. Those representing the Appellant were in error when they referred in their written grounds to the Appellant having been denied access to the trial of a claim ‘where her home was at risk’. At the time of the trial, the Appellant’s former home was on the market and there is, and was, no question of her ever being well enough to live other than in a care home.

1. 1. The question is therefore whether in all the circumstances of the case the judge was wrong to allow the trial to proceed given that the Appellant is profoundly deaf. In my judgment he was not. I agree with DHJ Johnson that debarring orders should mean what they say and that a litigant who is debarred as a consequence of their own failure to comply with the rules cannot expect nevertheless to be entitled to have made available to him or her all the proper and carefully developed protections which have been put in place over the years to ensure that a participating party can put their case effectively. In my judgment there is no obligation on a court proactively to manage the attendance of a debarred party, although it is a matter for a judge whether or not to grant any request from an attending party either for special measures or to address the court, for example as suggested by DHJ Johnson in relation to the form of any order.

1. 1. The Appellant had instructed solicitors in the past and could have again. She made no application to the court for an adjournment or for relief from sanctions. She was however proactive to the extent of writing a letter to the judge expressing her views in relation to her daughter’s claim. The judge could have declined to read the letter. He did not. Similarly, the Respondent’s solicitors did far more than could reasonably have been expected of them to ensure that the Appellant had access to all the relevant material and was able to attend the trial by Skype.

1. An adjournment would have meant a significant delay in proceedings which had already been going on for several years. Costs would have been incurred which could be ill afforded from this modest estate and at the end of the day it might be thought that the best which could have been achieved would have been for the Appellant to have been provided with a different person to make notes for her assistance during the trial.