The meaning of ‘attendance in person’

In Owen v Black Horse Limited [2023] EWCA Civ 325, the Court of Appeal considered the meaning of ‘if a claimant does not attend the hearing’ under CPR 27.9 which deals with small claims. 

The small claims track has been designed to be a proportionate procedure by which most ‘straightforward’ claims with a value of less than £10,000 can be decided, without substantial preparation and the formalities of a traditional trial, and without large costs. The small claims track is suitable for litigants in person.

The rules

Rule 27.9(1) provides that ‘if a party who does not attend a final hearing’ has given at least seven days’ written notice to the court, and has served notice on the other party, the court may, at that party’s request, decide the claim in his absence, taking into account that party’s statement of case and other documents filed and served.

However, where the non-attending party is a claimant who has not given notice, rule 27.9(2) provides that the court may strike out the claim. Rule 27.11 gives a party who ‘was neither present nor represented at the hearing of the claim’ and who has not given written notice to the court under rule 27.9(1) a right to apply to the court for an order that a judgment be set aside, and the claim reheard. CPR 39.3 provides that a court may hold a trial ‘in the absence of a party’ and may strike out a claim and defence.

Lower courts decisions

The claimant brought a claim against the defendant for failing to declare commission as required under the Consumer Credit Act 1974. The claimant’s solicitor attended the hearing but the claimant did not. The district judge observed that there was ‘rich material’ in the claimant’s own case upon which the defendant should be able to cross-examine him and, because the defendant had been deprived of that opportunity, the district judge struck out the claim under rule 27.9. HHJ Jarman KC dismissed the claimant’s appeal and held that the phrase ‘if a claimant does not attend the hearing’ meant ‘if the claimant is not present at the hearing, even if he is represented by his solicitor’. The claimant appealed.

Court of Appeal

The Court of Appeal allowed the appeal. Giving the leading judgment, Elisabeth Laing LJ (pictured) noted that there was no Court of Appeal authority on the interpretation of rule 27.9 or on the meaning of non-attendance under rule 39.3. 

There were, however, two authorities which provided guidance. In Rouse v Freeman (The Times, 8 January 2002), Gross J held that the court did not have the power to strike out a claim pursuant to rule 39.3 where the claimant had not been present at trial, but both solicitor and counsel had been present. He explained that there were many situations in which personal attendance of a party is ‘irrelevant or most unlikely’ and that it was only likely to matter if the party was to give evidence.

Furthermore, if a party who was an important witness did not attend, the claim ‘will not, at least ordinarily, be struck out, it will fail and be dismissed’. Gross J observed that the mischief addressed by rule 39.3 was where a party did not attend and was not represented. In Falmouth House Limited v Abou-Hamdan [2017] EWHC 779 (Ch), Nugee J considered rule 39.3 and noted that in civil litigation: (i) a person who is a party to litigation has a right to appear in person and to represent himself, but also has a right to appear by counsel; and (ii) a party is entitled to form his own view whether to give evidence or not. It followed, therefore, that there was no obvious reason why a litigant should be required to attend personally ‘in order to sit at the back of the court’.

Laing LJ rejected the defendant’s linguistic argument based on the difference in language between ‘a party who does not attend the hearing’ in rule 27.9, and ‘a party who was neither present nor represented at the hearing of the claim’ in rule 27.11. She held that ‘there is no sensible practical reason for such a mismatch. It is incoherent’ because the circumstances in which a party’s case can be struck out under rule 27.9 would not correspond with those in which a party whose case has been struck out can apply for the case to be reinstated under r27.11. Laing LJ also observed that there was ‘no good reason why similar provisions in the CPR, with apparently similar functions, but which apply to different tracks, are to be interpreted differently’.

She concluded by explaining that: ‘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… 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.’

The decision is to be welcomed for providing confirmation that a litigant can ‘appear’ at trial through his legal representative. Furthermore, by interpreting the rules consistently with one another, the Court of Appeal has provided important judicial clarification and guidance.

From a tactical perspective, a claimant who decides not to attend the trial runs the very real risk that his case may fail because he is not present to give instructions to his legal representative and to challenge the defendant’s evidence and arguments. The defendant may also persuasively argue that he has not had the opportunity to challenge and cross-examine the claimant’s evidence.  

Masood Ahmed is an associate professor of law at the University of Leicester and a member of the Law Society’s Dispute Resolution Committee