Court “wrong” to strike out small claim where party was absent but represented

Laing: Alternative interpretation was not rational

The lower courts were wrong to strike out a small claim where the claimant failed to attend the trial personally but was represented by a lawyer, the Court of Appeal has held.

Lady Justice Elisabeth Laing said that to rule otherwise would actually put a party that failed to attend and was not represented in a better position under the Civil Procedure Rules.

At the heart of the case was the meaning of the phrase ‘if a claimant does not attend the hearing’ in rule 27.9, which deals with small claims.

Deputy District Judge Sandercock struck out the claim at first instance because the claimant was not there to be cross-examined “and that is a matter of justice and pursuing the overriding objective”. The decision was upheld by His Honour Judge Jarman KC in Cardiff.

The district judge held that ‘attend’ meant “actively join in the process of the final hearing” and was not the same as the party attending by his advocate.

Giving the appeal court’s unanimous decision, Laing LJ said: “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 [the defendant] 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 [under rule 27.11], but the latter cannot.”

Moreover, she continued, a party who attended personally was in a better position than one who did not but was represented. “The former is not exposed to the risk of having his case struck out, whereas the latter is exposed to such a risk.”

Neither of these outcomes were “rational”, Laing LJ said, against the background of High Court decisions by the then Gross J and Nugee J in respect of rule 39.3 (‘Failure to attend the trial’) that a party ‘attended’ a trial if represented at the hearing.

Though their views were not binding on the Court of Appeal, they “merit respect” and were “obviously right”.

The judge said that, while there were “significant differences” between the small claims and other tracks, to rule otherwise would mean that “similar provisions in the CPR, with apparently similar functions, but which apply to different tracks, are to be interpreted differently”.

Laing LJ continued: “There is no good reason why that should be so, even when the greatest allowance is made for the different contexts of rule 27.9 and rule 39.3.”

She acknowledged there was “some force” in the argument pointing out the difference in language between rule 27.9 and rule 27.11, but the practical incoherence it caused “overrules [counsel’s] appeals to grammar and tautology”.

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