Sunrule Ltd v Avinue Ltd

In a small-claims hearing, a lay representative has the broad meaning given by the applicable Practice Direction. A corporate party may therefore be represented by a lay representative who is neither its officer nor employee, subject to the statutory restrictions and the court’s power to refuse to hear a particular representative.

A refusal of representation does not itself require a retrial. The appellate court must be satisfied that the irregularity was serious and that the party did not receive a fair trial. Where the refusal prevented effective exploration of material documentary discrepancies and evidence, fairness may require the judgment to be set aside.

Avinue Ltd claimed payment from Sunrule Ltd for leather goods said to have been delivered. Sunrule disputed delivery of some goods. At the fast-track trial before District Judge Silverman, the judge refused permission for Mr Boyd to speak for Sunrule because he was neither an officer nor employee of the company. Judgment was entered for Avinue and Sunrule’s counterclaim was dismissed.

His Honour Judge Medawar QC dismissed Sunrule’s first appeal. Sunrule then sought permission for a second appeal, contending that the refusal of its proposed lay representative had prevented a fair trial and that the findings on delivery could not safely stand.

1. Appeal allowed. Lady Justice Arden granted permission because the issue of lay representation of a company in small-claims proceedings raised an important point of practice for the purposes of CPR 52.13. Lord Justice Dyson agreed that the appeal should be allowed.

2. Lady Justice Arden held that CPR Practice Direction 27 gave lay representative a deliberately wide meaning. The general rule in paragraph 3.2(1) permitted a party to present its case through a lawyer or lay representative. Paragraph 3.2(4), allowing an officer or employee to represent a corporate party, extended rather than confined that entitlement. It ensured representation by such persons despite the restrictions otherwise imposed by the Lay Representatives (Rights of Audience) Order 1999.

3. Accordingly, Sunrule was entitled to have Mr Boyd act as its lay representative at the trial although he was then neither an officer nor employee. Dyson LJ expressed the same construction, observing that paragraph 3.2(4) could not impliedly narrow the broad statutory and Practice Direction definition. He considered that a concluded determination of that construction was unnecessary to dispose of the appeal.

4. The court would not set aside a completed trial for a mere irregularity; there had to be a serious procedural or other irregularity. That threshold was met. Mr Boyd had prepared the schedule identifying the disputed invoices and would have explored material discrepancies between invoices and delivery notes. The delivery driver’s evidence was tied to delivery notes and did not justify an inference that every item shown on an invoice, but absent from a delivery note, had been delivered.

5. Sunrule’s director had limited English, and there had been no effective cross-examination on the discrepancies. Taken together, those matters created sufficient doubt about the fairness of the trial. The benefit of that doubt had to be given to Sunrule. Avinue was ordered to pay costs assessed at £200 within 14 days.

• Court of Appeal (Civil Division): permission granted and second appeal allowed in [2003] EWCA Civ 1942. The court held that the refusal of the proposed lay representative resulted in an unfair trial.

• Central London County Court: His Honour Judge Medawar QC, on 12 June 2003, dismissed Sunrule’s appeal from the district judge.

• Central London County Court: District Judge Silverman, on 4 March 2003, entered judgment for Avinue and dismissed Sunrule’s counterclaim following a fast-track trial.