Solicitor Instructed, Do I Have To Turn Up To Court Too?

Image: Robert Horvick/bubbafat/Unsplash
Image: Robert Horvick/bubbafat/Unsplash

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

Greenhalgh Kerr
Olympic House, Beecham Court,
Smithy Brook Rd,
Wigan WN3 6PR

View on google maps

+44 (0)333 200 5200

We are confident in our work and we know that recoveries is a key part of a lender or creditor’s business

We are confident in our work and we know that recoveries is a key part of a lender or creditor’s business. We have designed our pilot projects to give lenders and creditors the comfort and confidence in our service before formally and fully switching recoveries providers. This time also allows new clients to benchmark our service levers and results against existing providers and others.

How it works

01

You choose 10 recoveries cases

You choose 10 recoveries cases to get us started. We’ll deliver our usual onboarding protocol where we’ll get to know you and your systems, culture, methods, preferences, and requirements.

02

We get started

We assess each case by setting a strategy then grading and reporting on the case in terms of prospects and timescales and cost. We make immediate contact with debtors, and pursue a recovery in our tried and tested ways.

03

We review

We deliver ongoing, structured, tailored reports as per your needs and carry out a full 3-month review on these 20 cases. There we’ll discuss how we have worked together, patterns we have seen in your borrowers, your systems, your documents, your pre-legal conduct, outcomes, highs and lows, legal costs (and costs borne by debtors), and possible improvements in all of these.

04

No strings

We carry on working in this way until all cases have been concluded. You are then free to carry on your discussions with us or to use the experience and market intelligence gained by working with us in the future.

Lenders and creditors have nothing to lose, and everything to gain, by engaging with us on a pilot project.