Falmouth House Ltd v Abou-Hamdan

A civil litigant generally has the right to appear through legal representatives and need not attend court personally unless the court has properly required personal attendance. An order requiring attendance “in person” ordinarily requires physical attendance, rather than attendance by counsel or video-link. In assessing relief from sanctions, the court must first assess the seriousness and significance of the breach itself. The practical effect on the hearing and the purpose of the order are important considerations. A technical breach which does not disrupt the trial or frustrate the order’s purpose is unlikely to be serious or significant. The court should not treat the breach as serious by relying prematurely on the reasons for it or the wider procedural history.

Falmouth House Ltd claimed service-charge arrears from its lessee, Mr Abou-Hamdan. The County Court adjourned the trial and ordered that, unless he attended in person at the rearranged trial, his defence would be struck out and judgment entered for the claimant. His application to give evidence by video-link was dismissed. He subsequently attended through counsel but not personally, and the defence was struck out with judgment entered for FHL.

Mr Abou-Hamdan appealed the orders made by HHJ Mitchell, DJ Langley and HHJ Saggerson. The central issues were the construction of “attends in person”, the effect of representation by counsel, and whether relief from sanctions should be granted.

1. Construction of the order. The words “attend in person” required Mr Abou-Hamdan himself to attend physically at the London court. Attendance by counsel did not comply, and neither did appearance by video-link. The transcript could assist in interpreting the order but could not contradict its unambiguous wording. This contrasted with CPR 39.3, under which a party attends through legal representatives.
2. Relief from sanctions. Applying Denton v T H White Ltd [2014] EWCA Civ 906, the first question was whether the particular breach was serious or significant. The comparison had to be between the position with and without the breach, not between a trial and a default judgment. The court had to consider the effect on the trial, other litigation, and the purpose for which the order was made.
3. The breach was technical and had no practical adverse consequence. Counsel was ready to proceed, no adjournment was sought, and the trial date was not imperilled. The purpose of the order was to ensure that the rearranged trial proceeded, and personal attendance was unnecessary to achieve that purpose.
4. HHJ Saggerson had therefore erred by treating the breach as serious and significant and by focusing on the defendant’s motives, conduct of the litigation and reasons for non-attendance at the first stage. The appeal against his order was allowed, the default judgment was set aside, and the claim was remitted for trial so that FHL could prove its claim and the defendant could challenge it through counsel.
5. The court added that a court may require personal attendance under CPR 3.1(2)(c), including to facilitate settlement. A District Judge may vary an earlier order under CPR 3.1(7), including after a material change of circumstances. Those observations were not necessary to the dispositive outcome.

• High Court (Chancery Division): The appeal against the Saggerson Order was allowed and that order was set aside. The matter was left for directions and trial in the County Court.
• County Court at Central London: HHJ Mitchell, DJ Langley and HHJ Saggerson made the orders concerning adjournment, video-link evidence, relief from sanctions and default judgment.