A claimant did not have to be physically present at their hearing to have ‘appeared’, the Court of Appeal has ruled. In Owen v Black Horse Ltd Lady Justice Elisabeth Laing found that the ‘essential point’ was that the claimant was entitled to represent himself or to be represented by a lawyer.
She said that Part 27 of the Civil Procedure Rules, which contains the phrase ‘if a claimant does not attend the hearing’, did not ‘expressly impinge’ on the right to be represented in court.
The judgment overturned rulings from the lower courts that the claimant, who was represented by Kevin Durkin solicitor at the start of the small claims track hearing, had not attended in accordance with CPR 27. The court heard that the claimant had alleged that a loan agreement was unfair and claimed for repayments of capital and interest.
The case was allocated to the small claims track and a hearing set for July 2021. The claimant did not attend but the solicitor did and the district judge struck out the claim.
Rule 39.3, headed ‘Failure to attend the trial’, gives the court the power to hold a trial ‘in the absence of a party’. If ‘no party attends the trial, it may strike out the whole of proceedings’, and if the claimant ‘does not attend’, the court may strike out their claim.
The district judge struck out the case because the claimant was not there to be cross-examined and that was ‘a matter of justice and pursuing the overriding objective’. Attendance, he had deemed it, involved the ‘actual engagement of the claimant’. The decision was backed by His Honour Judge Jarman KC on first appeal.
Before the Court of Appeal, the claimant argued the that judge had been wrong to find that he did not attend the trial when his legal representative was present. The court therefore had no power to strike out the claim. The claimant relied on Falmouth House Limited v Abou-Hamdan in which Mr Justice Nugee (as he was then) said it was ‘well established and uncontroversial’ that a person who is a party to litigation has a right to appear by counsel.
In her summary, Lady Justice Laing said this interpretation was ‘obviously right’.
Following the ruling, Durkin, director and solicitor-advocate with HD Law Limited, said: 'The Owen decision provides practitioners with much welcomed clarity on the CPR, regarding the situation where either a claimant or defendant is unable to attend a hearing but wants their advocate to attend on their behalf, without facing the risk of their claim being struck out for their non-attendance.'
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