Williams & Anor v Hinton & Anor

A party seeking a new trial because judgment was given in its absence should normally apply to set it aside under CPR 39.3. An appeal may nevertheless be entertained in unusual circumstances, but litigant-in-person status alone will not ordinarily suffice.

A court may proceed with a trial in a party’s absence where the party had notice and no proper explanation for non-attendance. This is compatible with procedural fairness. Witness statements served by an absent party are not evidence unless the witnesses are called or the statements are put in as hearsay. An expert report may be admitted where its declaration substantially complies with the essential requirements of the applicable practice direction.

The appellants, landlords of a dwelling let to the respondents, had brought possession proceedings. The respondents counterclaimed for disrepair, breach of section 11 of the Landlord and Tenant Act 1985, breach of section 4 of the Defective Premises Act 1972, and personal injury.

After the respondents left the property, the counterclaim was tried in the appellants’ absence. HHJ Gareth Jones QC, sitting in the Rhyl County Court, allowed it and awarded damages, interest and costs. The appellants appealed, alleging that the judge should not have proceeded in their absence, had failed to consider their case, and had wrongly admitted the single joint expert’s report. They also sought an injunction concerning money paid towards the judgment debt.

1. Appeal dismissed. The court granted permission to appeal but upheld the County Court’s judgment. The related injunction application, which the parties agreed stood or fell with the appeal, also failed.

2. The appellants ought normally to have applied under CPR 39.3 to set aside a judgment entered after their non-attendance. Applying the guidance in Bank of Scotland v Pereira [2011] EWCA Civ 241, an appeal may still be entertained without such an application in unusual circumstances. It was appropriate to do so here because the appellants had chosen the appellate route before that guidance was given. They sought no procedural advantage, including by adducing fresh evidence. A litigant’s unrepresented status alone would not ordinarily justify departing from the normal CPR 39.3 route.

3. The County Court judge properly exercised the discretion under CPR 39.3(1) to proceed in the appellants’ absence. They had received, or were in any event bound by, the clear order fixing the trial. No stay had been granted. The judge was entitled to conclude that they knew of the hearing and had chosen not to attend without a proper explanation. The requirements of natural justice and Article 6(1) did not require further delay.

4. The appellants’ served witness statements had not become evidence. They had neither called the witnesses nor put the statements in as hearsay evidence. The judge was obliged to consider the evidence, although he in fact also read the statements. The court held that this was consistent with the fair-hearing principle discussed in Van de Hurk v The Netherlands (1994) 18 EHRR 481.

5. The expert’s declaration did not reproduce the prescribed wording exactly, but it confirmed independence, compliance with the overriding duty, the correctness of the opinions, and relevant qualifications. It therefore substantially complied with the essence of the practice direction. The judge made no error in admitting the report or giving it appropriate weight.

• Court of Appeal (Civil Division) — permission to appeal was granted, but the appeal and consequential injunction application were dismissed: [2011] EWCA Civ 1123 .

• Rhyl County Court — HHJ Gareth Jones QC proceeded in the landlords’ absence and allowed the tenants’ counterclaim for disrepair and personal injury, awarding damages, interest and costs.