A LITIGANT CAN “APPEAR” AT A SMALL CLAIMS TRACK HEARING BY THEIR LEGAL REPRESENTATIVE: COURT OF APPEAL DECISION

March 27, 2023 · by · in Appeals, Applications, Civil Procedure

In Owen v Black Horse Ltd [2023] EWCA Civ 325 the Court of Appeal allowed the claimant’s appeal.   The claim had been struck out at the start of a Small Claims Track hearing on the grounds that attendance by the claimant’s legal representative did not amount to attendance by the claimant in accordance with CPR 27.    The Court of Appeal held that a litigant has the right to appear by legal representative.

“The essential point is that a party to litigation is entitled to represent himself, or to be represented by a legal representative or representatives. Part 27 does not expressly impinge on that right.”

THE CASE

A claimant in a case relating to credit issues (“A”) brought a claim against the defendant (“R”).  The action was allocated to the Small Claims Track. At the hearing of the matter the claimant’s solicitor attended but the claimant did not. The District Judge struck out the action on the grounds that the claimant failed to attend.  The attendance of legal representative did not satisfy that test.  That striking out was upheld on appeal to the Circuit Judge.

THE CLAIMANT’S SUCCESSFUL APPEAL TO THE COURT OF APPEAL

The claimant’s appeal to the Court of Appeal was successful.

THE FAST TRACK RULES

The initial striking out was based on a construction of the Fast Track rules.

The Fast Track Rules are dealt with in CPR 37.

CPR 27.9
    1. Rule 27.9 is headed ‘Non-attendance of the parties at a final hearing’.
‘(1) If a party who does not attend a final hearing—

(a) has given written notice to the court and the other party at least 7 days before the hearing date that he will not attend;

(b) has served on the other party at least 7 days before the hearing date any other documents which he has filed with the court; and

(c) has, in his written notice, requested the court to decide the claim in his absence and has confirmed his compliance with paragraphs (a) and (b) above,

the court will take into account that party’s statement of case and any other documents he has filed and served when it decides the claim.
(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.

CPR.27.11

The Court of Appeal judgment deals with the interplay between CPR 27.9 and CPR 27.11.

Setting judgment aside and re-hearing
27.11

(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 rule 27.9(1),

may apply for an order that a judgment under this Part shall be set aside(GL) and the claim re-heard

THE JUDGMENTS BELOW

It was held below that there was no rule that allowed a party to “attend” by their legal representative.

THE DECISION OF THE COURT OF APPEAL

Lady Justice Elisabeth Laing, giving a judgment with which Lord Justice Baker and Lord Justice Edis agreed, allowed the claimant’s appeal.  A litigant attending a small claims hearing by a legal representative was “attending” the hearing.

    1. I have summarised the facts, the relevant legal materials and the parties’ arguments at some length. I can therefore decide the issue briefly.
    1. R’s strongest argument, which persuaded the Judge, is that the difference in language between rule 27.9 and rule 27.11 must be deliberate, and that it must be given effect to. There is some force in this linguistic argument. But it is necessary to test it by considering its implications. If R is right, the circumstances in which a party’s case can be struck out for non-attendance do not match the circumstances in which a party whose case has been struck out for non-attendance can apply for his case to be re-instated. R’s interpretation means that rule 27.9 and rule 27.11 do not match. There is no sensible practical reason for such a mismatch. It is incoherent. That incoherence overrules Mr Neville’s appeals to grammar and tautology.
    1. There is a further reason why R’s argument is unlikely to be right. In Rouse v Freeman Gross J decided, as respects rule 39.3, that a party ‘attended’ a trial if he was represented at the hearing (see paragraphs 41-47, above), and in Falmouth House v Abou Hamdan (paragraphs 48-55, above) Nugee J explained lucidly why he agreed with that approach. I acknowledge that Nugee J’s remarks were not necessary to his decision, and that Gross J’s decision, which concerns the interpretation of a different provision, does not bind this Court. Nevertheless the views of those two judges merit respect. For what it is worth, I consider that those views were obviously right as respects rule 39.3.
      1. I accept that there are significant differences between the small claims track and the other tracks. The smaller amounts at stake mean that the parties and the court are expected to, and can, deal with cases informally, and in a way which is proportionate to what is at stake. But if Gross J and Nugee J were, as I consider they plainly were, right about rule 39.3, R’s submission, if correct, means that similar provisions in the CPR, with apparently similar functions, but which apply to different tracks, are to be interpreted differently. There is no good reason why that should be so, even when the greatest allowance is made for the different contexts of rule 27.9 and rule 39.3.
    1. Gross J’s obiter comments about a potential conflict between his interpretation of rule 39.3 and rule 27.9 do not help R. The submission which the respondent made about rules 27.9 and 27.11 in that case seems to have been similar to the submission which R makes in this case (paragraphs 10 and 11 of the judgment, see paragraph 43, above). But Gross J recorded in paragraph 22 that the appellant did not accept that that submission was correct, and he expressly declined to decide that question of construction. He did no more than to observe that, if the respondent’s submission was correct, that might result in an inconsistency between his interpretation of rule 39.3 and rules 27.9 and 27.11 (see paragraph 47, above).
    1. Like Gross J, I take into account that Kirton v Augustus concerned the construction of a different provision. That provision was, nevertheless, functionally and linguistically, closely connected both with rule 39.3 and with rule 27.9. I consider that the approach of this Court in that case supports, both, the approach taken by Gross J and by Nugee J, and the submissions made by A in this appeal.
    1. The essential point is that a party to litigation is entitled to represent himself, or to be represented by a legal representative or representatives. Part 27 does not expressly impinge on that right. Yet if R is right, a party who does not attend the hearing of a small claim in person and is not represented is in a better position than a party who does not attend that hearing in person, but is represented. The former can apply to have any judgment under rule 27.9 set aside, but the latter cannot. Moreover, a party who attends personally is in a better position than a party who does not attend personally but is represented. The former is not exposed to the risk of having his case struck out, whereas the latter is exposed to such a risk. Against the background of the considerations explained by Gross J and Nugee J, neither is a rational outcome.
Conclusion
  1. For those reasons I would allow this appeal.
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