In Owen v Black Horse Limited [2023] EWCA Civ 325, the Claimant did not attend the small claims hearing but did send his solicitor to represent him. The DDJ held that the ‘party’ was not in attendance, such that CPR 27.9(2) was engaged. The requirements of CPR 27.9(1) (being, in summary, a requirement to serve notice of non-attendance) not having been complied with, the DDJ exercised their discretion to strike out the claim. This decision was then upheld on appeal before a Circuit Judge.

However, on appeal to the Court of Appeal, it was held that the Claimant had indeed attended the final hearing, through his solicitor. The Court of Appeal considered that R’s arguments as to linguistic differences between CPR 27.9 and CPR 27.11 only gave rise to incoherent situations, such that their position was untenable. In such circumstances, CPR 27.9 had not been engaged and so there had been no basis to strike out the claim.

Comment:

• This decision settles a seemingly obvious scenario but one which, on occasion, can be raised by an opponent or the judge. Advocates are advised to keep this decision to hand.

• CPR 27.9 is a feature consistent with the cost and time effective purpose of small claims hearings. A party can choose not to attend a final hearing (provided certain requirements have been met) and invite the Court to make a decision based on the evidence they have produced.

• This concept is taken one step further by CPR 27.10 which allows the Court to decide the claim without a hearing, i.e., on paper, if all the parties agree.

• What CPR 27.9 does not do is impose a requirement on the actual party to be in attendance (in addition to their legal representative). To do so would be inconsistent with the fundamental right of a party to represent oneself or to be represented by a legal representative.

• Obviously this does not change the position that a party who does attend is usually in a better position than one who does not, predominantly because they are in a position to give live evidence. Likewise, this decision has no impact on any evidential requirements imposed by, for example, CPR 33.2.

• As always, the legal representative must be also be one who is able to exercise a right of audience.

• This position had been earlier confirmed as the same vis-à-vis trials (cf. small claims hearings) in Rouse v Freeman (The Times, 8 January 2002, QBD) where consideration was given to CPR 39.3.

In short, attendance by legal representative means a party is in attendance. Obviously, right? Apparently not… until now.

Paul Luukas