Does a Claimant who is not at a hearing, but is represented, “attend” that hearing or not?

The Court of Appeal handed down judgment in Owen v Black Horse Limited on 24 March 2023. This is an important case for its impact on attending trials, as it answers the above question in the affirmative.

The Small Claims track is where most claims with a value of less than £10,000 can be decided without the formalities of a traditional trial, and is designed so that a litigant in person can represent themselves. The rules for Small Claims can be found in Part 27 of the Civil Procedure Rules 1998.

The case related to credit issues where (‘A’) brought a claim against the defendant (‘R’). The claim was allocated to the small claims track and the parties received a notice of hearing which informed them of the hearing date.

CPR 27.9(1) provides that a litigant may provide notice to the Court and opponent that they do not wish to attend a trial, and that the Court may decide the case in their absence, on the written evidence. In this case, A had provided no such notice.

At the hearing of the matter, the A did not attend in person, although his legal representative did. The Judge proceeded to strike out the claim on the basis that, in accordance with Rule 27.9, A had 'failed to attend. The attendance of his solicitor did not satisfy the test.   

Rule 27.11 gives a party who was neither present nor represented at the hearing and who has not given written notice to the Court the right to apply to the court for an order that a judgment be set aside and the claim be re-heard.

In Owen v Black Horse Limited A proceeded to apply to set aside the judgment. However the Judge hearing the application dismissed it on the basis of Rule 27.11- whilst A did not attend in person, his legal representative did. So, bizarrely, because A had a representative, he was in a worse position than if no one had attended the hearing at all.

The facts of this case raised the question of what was actually meant by attendance and representation.

The Judges on appeal found that the ‘essential point is that a party to litigation is entitled to represent himself, or to be represented by a legal representative or representatives’.

Accordingly the Court of Appeal held that a litigant has the right to appear by their legal representative and the appeal by A was allowed.
 
The case: Owen v Black Horse Limited [2023] EWCA Civ 325