PI Brief Update

Non-Attendance on the Small Claims Track: Owen v Black Horse Ltd [2023] EWCA Civ 325 - Sebastian Bates, Temple Garden Chambers

16/04/23. CPR 27.9 governs ‘[n]on-attendance of parties at a final hearing’ on the small claims track. The question for the Court of Appeal in this case was what CPR 27.9 means by circumstances in which ‘a claimant does not attend the hearing’.

Summary

This question arose because Mr Owen was absent from the trial of his small claim, although his solicitor attended: see [5]–[18].

DDJ Sandcock struck out his claim under CPR 27.9(2) for reasons summarised at [56]–[65]. His starting point was that he had a ‘a discretion to strike out the claim’ where a claimant did not attend or give notice under CPR 27.9(1). Having concluded that Mr Owen had not given proper notice, he reasoned that there is a distinction between appearance and attendance and that, although a party might appear by a legal representative, a party could only attend by actually engaging in the proceedings. Black Horse Ltd had been prejudiced by its inability to cross-examine Mr Owen.

Mr Owen appealed. HHJ Jarman KC dismissed his appeal for reasons summarised at [66]–[80]. He acknowledged that two judgments—given by Gross and Nugee JJ and summarised at [41]–[47] and [48]–[55]—indicated that a party could attend by a legal representative in terms of CPR 39.3. He accepted that phrases across the Civil Procedure Rules ought to be interpreted consistently. However, the context to CPR 27.9 was different. CPR 27.11 enables a party ‘neither present nor represented at the hearing of the claim’, who failed to give proper notice but ‘had a good reason for not attending or being represented at the hearing or giving [such] notice’, to apply to have a judgment set aside. He considered that the otherwise-tautologous references to ‘attending’ and ‘being represented’ made clear that a party had to be personally present to attend a hearing for the purpose of CPR 27.9.

On Mr Owen’s second appeal, Elisabeth Laing LJ described (at [100]) the argument that ‘the difference in language between rule 27.9 and rule 27.11 must be deliberate, and [. . .] must be given effect to’ as Black Horse Ltd’s ‘strongest’. She nevertheless rejected it. She pointed out that it entailed that ‘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 re-instated’. In her view, there was ‘no sensible practical reason for such a mismatch’.

She regarded the judgments cited by HHJ Jarman KC, as well as an earlier Court of Appeal judgment construing the County Court Rules (summarised at [39]–[40]), as supportive of Mr Owen’s appeal, on the basis that functionally similar provisions ought to be interpreted consistently: see [101]–[104].

Conclusion and Comment

The Court allowed Mr Owen’s appeal. Its interpretation of CPR 27.9 should be noted by practitioners litigating small claims.

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