Owen v Black Horse Ltd  EWCA Civ 325
In Owen v Black Horse Ltd  EWCA Civ 325, the Court of Appeal considered the phrase “if a claimant does not attend the hearing” within the context of the small claims track as governed by CPR Part 27. The key issue was whether, for the purpose of CPR r 27.9, the claimant had “attended the hearing” when he himself had not been present, but his legal representative had. A subsidiary question considered by the Court of Appeal was whether the meaning of the phrase “attend the hearing” in the small claims provisions of the CPR is different to the meaning in the provisions that apply to more valuable claims. Read our case comment here to find out whether the same phrase does mean the same thing, even if the context of the small claims track is very different to the other contexts in which the CPR uses the same phrase.
The small claims track, as explained in 26PD.8, is intended 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 without the formalities of a traditional trial, and without large costs. The scheme is designed so that a litigant in person can represent himself, if he wishes. Consumer disputes are generally suitable for the small claims track.
Procedure for the small claims track is governed by CPR Part 27: Rule 27.1(1) explains that Part 27 sets out the procedure for claims which have been allocated to the small claims track under Part 26, and limits the costs which can be recovered for such a claim. Rule 27.2 lists several provisions of the CPR which do not apply to small claims, e.g., provisions on evidence; and, notably for the purposes of the present appeal, Part 39 on hearings.
This appeal concerned the meaning of CPR rule 27.9, which is headed ‘Non-attendance of the parties at a final hearing.’ Rule 27.9(1) provides that, “if a party who does not attend a final hearing” has given at least 7 days written notice to the court, and has served notice on the other party together with any other documents filed with the court, 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. Rule 27.9(2) provides for where the non-attending party is the claimant:
(2) If a claimant does not–
(a) attend a hearing; and
(b) give the notice referred to in paragraph (1)
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 re-heard.
In the present case, the Claimant had given notice by email that he would not “personally…not be in attendance at the hearing. The claimant will attend by his legal representative”. This notice did not comply with Rule 27.9(1). Nevertheless, DDJ Sandercock struck out the claim on the basis of the Claimant’s non-attendance, holding that rule 27.9 required personal presence of the party at the hearing.
On the first appeal, the HHJ Jarman KC considered the only question was whether the phrase “if a claimant does not attend the hearing” in Part 27 has the same meaning as it does in the rest of the CPR. Although the Judge acknowledged that, prima facie, the same phrase should bear the same meaning across the various provisions CPR, the Judge gave weight to the fact that Part 27 applies in the specific context of small claims and that the cases on Part 39 were not binding.
The Judge concluded that, although neither interpretation was “free from difficulty”, ‘attendance’ in the context of Part 27 meant personal attendance. He considered that:
- The “neither present nor represented’ and ‘not attending or being represented” would be unnecessary and tautological if ‘attendance’ included attendance by a legal representative.
- The fact that the Court had discretion whether to strike out was instructive; if a claimant did not attend the hearing, but was represented at it, his representative could argue why that discretion should not be exercised.
Accordingly, the Claimant “did not attend a hearing” within the meaning of Rule 27.9 and DDJ Sandercock had been entitled to strike out his claim.
The Claimant brought a second appeal against the Judge’s decision on the grounds that he had been wrong to find that the Claimant had not attended the hearing within the meaning of Part 27.
The Court of Appeal: The Authorities
Elisabeth Laing LJ (with whom Edis and Baker LJJ agreed) noted that there is no authority at the level of the Court of Appeal on the interpretation of rule 27.9; nor any authority of the Court of Appeal deciding, or commenting on, the meaning of the phrase “a party [or claimant or defendant] does not attend” the trial in rule 39.3. However, Elisabeth Laing LJ was referred to three key authorities.
First, Kirton v Augustus Limited  PIQR 388 concerned a Defendant company, which had been absent at the hearing in question, but whose legal representative had attended; albeit, on the basis, agreed with the judge, that he would take no part in the hearing. The Court of Appeal held that the Defendant had been present at the hearing for the purpose of O 37 r 2(1) of the County Court Rules, which provided that “Any judgment or order obtained against a party in his absence at the hearing may be set aside by the court on application by that party” on the basis that the rule was to “enable the court to correct an injustice if, for some unavoidable reason, a party had not been present at a hearing.” Accordingly, Peter Gibson LJ considered that: “When a party deliberately chooses either to be in court but not to make representations at the hearing, or to depart from court so as to avoid being there when the order is made, I cannot see how that party can bring himself within the purpose of the rule” (cited at ).
Second, in Rouse v Freeman (The Times, 8 January 2002), Gross J decided that the county court did not have power to strike out the claim pursuant to rule 39.3 where the claimant had not been present at trial, but both solicitor and counsel had been present. Gross J had said (cited at ):
the fact that rule 39.3 applies to trials made ‘it less likely…that it will focus on personal non-attendance of a party’ …. There were many situations in which personal attendance of a party is ‘irrelevant or most unlikely’. It was only likely to matter (apart from the giving of instructions) if the party was to give evidence. The remedy of strike out seemed inappropriate. 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’ (paragraph 16). The mischief addressed by rule 39.3 was where a party did not attend and was not represented.
Third, in Falmouth House Limited v Abou-Hamdan  EWHC 779 (Ch), Nugee J had commented on rule 39.3, and began by identifying two features of civil litigation (cited at -): (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; (ii) a party is entitled to form his own view whether to give evidence or not. Hence, it followed (cited at ) 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 the trial on his behalf and (ii) does not himself propose to give or call evidence’, although, in practice, that would necessarily constrain the scope of his defence. There was no reason why he should not choose to; and if he did, ‘there would equally seem on the face of it no reason why the defendant should have to attend court in person’. There was no obvious reason why he should be required to attend personally ‘in order to sit at the back of the court’
The Court of Appeal: Decision
Having considered these three authorities in depth, Elisabeth Laing LJ proceeded to consider the Respondent’s ‘strongest argument’ that had persuaded the Judge., namely the linguistic argument based on the difference in language between: “a party who does not attend the hearing” in r 27.9; and “a party who was neither present nor represented at the hearing of the claim” in r 27.11.
Although Elisabeth Laing LJ accepted at  there was some force in this linguistic argument, it did not hold up against being tested by reference to its implications. If the linguistic argument were correct, the circumstances in which a party’s case can be struck out for non-attendance pursuant to r 27.9 would 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 pursuant to r 27.11. Hence, Elisabeth Laing LJ considered “there is no sensible practical reason for such a mismatch. It is incoherent.”
More broadly, Elisabeth Laing LJ considered at  that 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.” This was so, “even when the greatest allowance is made for the different contexts of rule 27.9 and rule 39.3.” Taking due account of the fact that Kirton concerned the construction of a different provision, she nevertheless considered that that provision was “functionally and linguistically closely connected both with rule 39.3 and with rule 27.9.” The approach in Kirton was, accordingly, further support for the approach taken by Gross J and by Nugee J – which Elisabeth Laing LJ considered at  to be “obviously right”- and the submissions made on behalf of the Claimant in the present appeal.
Elisabeth Laing LJ, thus, concluded at  as follows:
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 [in Rouse and Falmouth House] neither is a rational outcome.
The appeal was therefore allowed.
This is a sensible decision. Rules 27.9 and 39.3 are functionally identically and there is no good reason for them to be interpreted differently. As such, the confirmation that a claim is not liable to be struck out merely because the claimant does not personally attend the trial or final hearing, regardless of the track to which the claim has been allocated, is welcome.
Of course, the failure of a claimant to attend personally may well lead to their claim being dismissed, even if it is not struck out under Rule 27.9. The burden of proof rests on the claimant and the Court may well conclude that, by failing to attend and give oral evidence, the claimant has failed to discharge this burden.
More generally, it is notable that the Court did not, in the context of interpretation, treat Part 27 as a self-contained procedure, but took into account provisions of the CPR that are excluded by rule 27.2 and the case law relating to those provisions.
Article by Amy Held and Joshua Griffin