Absent but Represented in Small Claims?

The recent case of Owen -v- Black Horse Limited [2023] EWCA CIV 325 considered important issues where a claim was initially struck out on the basis that the Claimant was absent from trial although represented by a lawyer. For parties involved in low value claims of all types this decision clarifies that it is sufficient for legal representatives to attend small claims track final hearings on their behalf. 

Background

The Claimant, Mr. Owen, did not attend the final hearing of his small claim due to illness but rather instructed a representative to attend the hearing on his behalf. At the hearing the Court struck out the claim entirely, disregarding the presence of Mr Owen’s representative. Mr Owen successfully appealed the decision. 

The Right to a Fair Trial

The Civil Procedure Rules (CPR) in England and Wales are designed to ensure a fair and just legal process. They outline the steps and obligations for parties involved in civil litigation, aiming to achieve a balanced and equitable outcome. One fundamental principle of the CPR is that every party has the right to a fair trial, which includes the opportunity to present their case and respond to the opposing party’s arguments. 

CPR 27.9 provides that on the small claims track:

‘(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.’

The Claimant had served a defective notice.     

Further, CPR 27.11 provides that:

‘(1) A party –
(a) who was neither present nor represented at the hearing of the claim; and
(b) who has not given written notice to the court under rule 27.9(1),
may apply for an order that a judgment under this Part shall be set aside(GL) and the claim re-heard.’

The decision to strike out the claim where the Claimant was absent but represented raised concerns about safeguarding of the right to a fair trial. While illness may prevent a party from personally attending a hearing, the presence of an authorised representative should arguably have been sufficient to ensure the Claimant’s interests were adequately represented.

The Court of Appeal recognised this and overturned the decision of the lower courts. The Court of Appeal stated: ‘The essential point is that a party to litigation is entitled to represent himself, or to be represented by a legal representative or representatives. Part 27 [of the CPR] does not expressly impinge on that right.’ And went on to state that ‘if [the Defendant] is right, a party who does not attend the hearing of a small claim in person and is not represented is in a better position than a party who does not attend that hearing in person, but is represented… The former can apply to have any judgment under rule 27.9 set aside [under CPR 27.11], but the latter cannot.’

The Court of Appeal’s unanimous overturning of the decision to strike out the Claimant’s case was fully supportive of the right to a fair trial.

Implications for Access to Justice

Striking out a claim solely based on the absence of a party, despite their representation, has potential consequences for access to justice. It places an undue burden on individuals who may be unable to attend hearings for legitimate reasons, such as illness, work commitments, or geographical constraints. In such cases, the ability to have a representative attend on their behalf is crucial to ensure a fair trial and maintain access to justice. Moreover, had the decision not been overturned, it could have discouraged individuals from pursuing small claims out of fear that unexpected circumstances might prevent their personal attendance, leaving them vulnerable to having their claims struck out without proper consideration. 

Conclusion

Without doubt, the Court of Appeal decision was the right one to uphold the principles of fairness and to ensure that legal representation can adequately protect the interests of absent parties. The decision clarifies that it is sufficient for legal representatives to attend small claims track final hearings without the party instructing them.  It is not necessary to attend personally to avoid the risk of strike-out. 

For further information on this topic, please contact Qasim Khan-Cheema.