In Owen v Black Horse [2023] EWCA Civ 325, the case turned on the meaning of the phrase in CPR 27.9, on small claims, ‘if a claimant does not attend the hearing’. The court also considered whether the phrase meant the same in small claims hearings and in higher value cases.
The High Court and the district court had both held the meaning to be: ‘if the claimant is not present at the hearing, even if he is represented by his solicitor’.
A dispute between the claimant, Owen, and the defendant, Black Horse, was allocated to the small claims track and the parties were told that if they were not going to attend the hearing they must inform the court in writing seven days prior. If they did not attend and did not give notice, then the district judge could strike out their claim.
Owen did not attend but his solicitor did. The judge struck out the claim.
Allowing Owen’s appeal, Lady Justice Elisabeth Laing, giving the lead judgment, said there was ‘no authority at this level on the interpretation of rule 27.9’ or on the meaning of the phrase a party ‘does not attend’ the trial in rule 39,3.
However, she said the views of Gross J in Rouse v Freeman (2002) Times, 8 January that a party ‘attended’ a trial if he was represented, and of Nugee J in Falmouth House Ltd v Abou-Hamdan [2017] EWHC 779 (Ch) agreeing with Gross J, while not binding on the court, ‘merit respect’.
Laing LJ said she accepted there were ‘significant differences between the small claims track and the other tracks’ but said 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… 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.’
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