Does a claimant have to attend a small claims hearing? This was a question recently considered by the Court of Appeal in the case of Owen v Black Horse Limited [2023] EWCA Civ 325.
The Civil Procedure Rules (CPR) govern civil procedure in the courts of England and Wales. Part 27 of the CPR deals with claims allocated to the small claims track and Part 27.9 specifically deals with the non-attendance of parties at the final hearing, stating:
‘(1) If a party who does not attend a final hearing (a) has given written notice to the court and the other party at least 7 days before the hearing date that he will not attend; (b) has served on the other party at least 7 days before the hearing date any other documents which he has filed with the court; and (c) has, in his written notice, requested the court to decide the claim in his absence and has confirmed his compliance with paragraphs (a) and (b) above, the court will take into account that party’s statement of case and any other documents he has filed and served when it decides the claim.
(2) If a claimant does not (a) attend the hearing; and (b) give the notice referred to in paragraph (1), the court may strike out the claim.
(3) If (a) a defendant does not (i) attend the hearing; or (ii) give the notice referred to in paragraph (1); and (b) the claimant either (i) does attend the hearing; or (ii) gives the notice referred to in paragraph (1), the court may decide the claim on the basis of the evidence of the claimant alone.
(4) If neither party attends or gives the notice referred to in paragraph (1), the court may strike out the claim and any defence and counterclaim.’
In the Owen case, Mr Owen instructed legal representatives to attend the final hearing on his behalf, but did not personally attend the hearing. Mr Owen did send a notice by email beforehand to say he would not be present, although it did not comply with the requirements of Paragraph 27.9 (1) listed above. The trial judge felt that Mr Owen’s non-attendance left his opponent without an opportunity to cross-examine him, and therefore the trial judge struck out Mr Owen’s claim pursuant to Part 27.9 (2).
Mr Owen appealed the decision, arguing that although he was not personally present at the hearing, he had ‘attended’ the hearing, via his solicitor, whom he had instructed to attend and make representations on his behalf.
The Court of Appeal agreed with Mr Owen and found that ‘attendance’ in this context did not have to be personal attendance of the party, but could include attendance by a legal representative.
The Court of Appeal followed reasoning set out in earlier case law whereby a person who is party to litigation not only has a right to appear in person and represent themselves, but also has a right to appear by a legal representative or representatives. The small claims track did not change such a right.
In small claims cases, parties sometimes do not instruct solicitors or barristers to represent them in court. This is due to the fact that legal fees cannot usually be recovered in the small claims track from your opponent even if you are successful in your claim. However, it does highlight the importance that if you are proceeding in the small claims track, you either need to attend the hearing yourself, or instruct a legal representative to attend on your behalf, failing which you risk the court striking out your claim or defence.
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