Attendance at a Small Claims Hearing is possible via a legal representative
Owen v Black Horse Limited [2023] EWCA Civ 325
Case Summary by Joshua Cullen
In Owen v Black Horse Limited [2023] EWCA Civ 325, the Court of Appeal have ruled that it is “obviously right” that a claimant who does not personally attend a small claims track final hearing can attend – for the purposes of CPR 27.9(2) – by their representative.
Lady Justice Elisabeth Laing (with whom Edis LJ and Baker LJ agreed) set out the facts, the relevant legal materials and the parties’ arguments at some length – a copy of the judgment can be found here.
The case was allocated to the small claims track and a hearing set for 9 December 2021 by way of CVP. The claimant did not attend that hearing, but his solicitor did. The Deputy District Judge struck out the claim for the claimant’s failure to attend trial for the purpose of CPR 27.9(2). That decision was upheld on first appeal before a Circuit Judge (His Honour Judge Jarman KC).
On second appeal, Lady Justice Elisabeth Laing held:
(1) “[…] 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 reinstated. [The Respondent]’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 [the Respondent]’s appeals to grammar and tautology.”
(2) “[there is no good reason why] similar provisions in the CPR, with apparently similar functions, but which apply to different tracks, are to be interpreted differently […] even when the greatest allowance is made for the different contexts of rule 27.9 and rule 39.3”
(3) “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. [If the decision of the lower courts was 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 [and] a party who attends personally is in a better position than a party who does not attend personally but is represented […]
Against the background of those considerations, the Court of Appeal concluded that the rational outcome was that the claimant must be said to be able to attend trial for the purpose of CPR 27.9(2) through his legal representative. Accordingly, there was no jurisdiction to strike out the claim for personal non-attendance.