Owen v Black Horse Limited

For the purposes of the Civil Procedure Rules 1998, a claimant who is not personally present at a small-claims hearing nevertheless attends if represented by a legal representative. The court therefore has no power under rule 27.9(2) to strike out the claim merely because the claimant is absent in person.

Similar attendance provisions in rules 27.9, 27.11 and 39.3 should be read coherently. An interpretation under which a represented claimant risks strike-out while an unrepresented absent claimant may seek to set aside judgment produces an irrational mismatch. The informal and proportionate nature of small claims does not justify a different meaning.

The appellant brought a small claim concerning alleged unfairness in a debtor-creditor relationship arising from commission connected with payment protection insurance. He did not personally attend the final hearing, but his solicitor attended. The District Judge struck out the claim under CPR rule 27.9(2). His Honour Judge Jarman KC dismissed an appeal.

On second appeal, the Court of Appeal considered whether the phrase "if a claimant does not attend the hearing" in the small-claims provisions meant personal attendance only, and whether it had a different meaning from the corresponding provisions applying to other claims.

Appeal allowed. The Court of Appeal held that CPR rule 27.9 must be construed in the context of the scheme of the Civil Procedure Rules 1998.

1. A claimant attends a small-claims hearing for the purposes of rule 27.9 if represented by a legal representative, even when not personally present. Rule 27.9(2) therefore did not give the District Judge power to strike out the claim merely because the claimant was absent in person.
2. The respondent’s interpretation would create an incoherent mismatch between rule 27.9 and rule 27.11. A represented claimant could have the claim struck out but could not apply to set aside the judgment, whereas a claimant who was neither present nor represented could make such an application. There was no sensible practical reason for that result.
3. The Court considered that similar attendance provisions should generally have a consistent meaning across the CPR, notwithstanding the differences between the small-claims track and other tracks. The informal and proportionate nature of small claims did not justify a divergent interpretation.
4. The Court approved the reasoning in Rouse v Freeman (The Times, 8 January 2002) and Falmouth House Limited v Abou-Hamdan ([2017] EWHC 779 (Ch)) that a party attends a trial through legal representatives. The Court also regarded Kirton v Augustus Limited ([1996] PIQR 388) as supporting that approach.

1. Court of Appeal (Civil Division): Allowed the second appeal and held that representation by a legal representative constituted attendance for CPR rule 27.9.
2. County Court at Cardiff: The District Judge struck out the claim under rule 27.9(2). His Honour Judge Jarman KC dismissed the appellant’s appeal.