Civil practice and procedure – Small claims track – Appeal – Solicitor attending trial under small claims procedure on behalf of claimant – Claimant failing to attend – Deputy judge striking out claim – Appeal judge upholding decision – Appellant bringing second appeal – Whether judge wrong to find appellant did not attend trial for purposes of CPR 27.9(2)(a) – Appeal allowed
The appellant entered into a loan agreement with the respondent. A payment protection policy with an insurer was linked to the agreement. The appellant alleged that the respondent retained or received some payment from the insurer in connection with the policy; and that the respondent failed to tell him about those payments and/or deliberately hid them. He claimed repayments of capital and interest in respect of the loan for the policy and/or the commission. The respondent argued that the claim was statute-barred by the limitation Act 1980, either totally, or in part.
The claim was allocated to the small claims track. The notice of allocation stated that if the parties could not, or chose not, to attend the hearing, they had to write and tell the court at least seven days before the hearing. A district judge would hear the case in their absence but would take account of their statement of case and any other documents they had filed. If they did not attend and did not give notice, the judge might strike out their claim, defence or counterclaim.
The appellant was not present at the hearing, although his solicitor was. The district judge struck out the claim and an appeal against that decision was dismissed. Both the judge and the district judge held, in the context of the small claim in this case, that the phrase “if a claimant does not attend the hearing”’ in CPR 27.9(2)(a) meant “if the claimant is not present at the hearing, even if he is represented by his solicitor”.
Held: The appeal was allowed.
(1) CPR 26.6(1)-(3) provided that the small claims track was the normal track for the types of claim which it described. £10,000 was the general limit on the value of any such claim, but there were exceptions to that general limit. The fast track was the normal track for claims of (in short) intermediate value, but only if the court considered that the criteria listed in CPR 26.6(5) were met (CPR 26.6(4)). The multi-track was the normal track for any claim for which the small claims track of the fast track was not the normal track (CPR 26.6(6)).
(2) CPR 27 dealt with the small claims track. CPR 27.10 gave the court power, if the parties agreed, to deal with a claim without a hearing. CPR 27.11 gave a party, who “was neither present nor represented at the hearing of the claim” and who had not given written notice to the court under CPR 27.9(1), a right to apply to the court for an order that a judgment be set aside and the claim re-heard. That party had to make the application within 14 days of service of the judgment (CPR 27.11(2)). The court might only grant the application if the applicant “had a good reason for not attending or being represented at the hearing or giving written notice to the court under rule 27.9(1)” and had a reasonable prospect of success at the hearing (CPR 27.11(3)). A party might not make an application under rule 27.11 if the court dealt with the claim without a hearing by consent under CPR 27.10 (CPR 27.11(5)).
If the respondent was right, that the difference in language between CPR 27.9 and 27.11 had to be deliberate and had to be given effect to, the circumstances in which a party’s case could be struck out for non-attendance did not match the circumstances in which a party whose case had been struck out for non-attendance could apply for his case to be reinstated. The respondent’s interpretation meant that CPR 27.9 and 27.11 did not match. There was no sensible practical reason for such a mismatch. It was incoherent.
(3) There was no authority on the interpretation of CPR 27.9, or deciding or commenting on, the meaning of the phrase “a party” (or “claimant”, or “defendant”) “does not attend” the trial in rule CPR 39.3. However, it was established law that under CPR 39.2, in respect of fast and multi-track trials, a party attended a trial if he was represented at the hearing.
In Rouse v Freeman (30 November 2001, The Times 8 January 2002), the court decided in respect of rule 39.3, that a party “attended” a trial if he was represented at the hearing; and in Falmouth House Ltd v Abou-Hamdan [2017] EWHC 779 (Ch), the court explained lucidly why it agreed with that approach. Those views were obviously right as respects CPR 39.3.
There were significant differences between the small claims track and the other tracks. The smaller amounts at stake meant that the parties and the court were expected to deal with cases informally, and in a way which was proportionate to what was at stake. There was no good reason why similar provisions in the Civil Procedure Rules, with apparently similar functions, but which applied to different tracks, should be interpreted differently. There was no good reason why that should be so, even when the greatest allowance was made for the different contexts of CPR 27.9 and 39.3.
(4) The essential point was that a party to litigation was entitled to represent himself, or to be represented by a legal representative or representatives. CPR 27 did not expressly impinge on that right. Yet if the respondent was right, a party who did not attend the hearing of a small claim in person and was not represented, was in a better position than a party who did not attend that hearing in person, but was represented. The former could apply to have any judgment under CPR 27.9 set aside, but the latter could not. Moreover, a party who attended personally was in a better position than a party who did not attend personally but was represented. The former was not exposed to the risk of having his case struck out, whereas the latter was exposed to such a risk. Neither was a rational outcome: Rouse and Falmouth applied.
Accordingly, the claimant had attended the trial for the purpose of CPR 27.9(2), through his solicitor and there was no jurisdiction to strike out the claim for non-attendance.
Jonathan Butters (instructed by HD Law Ltd) appeared for the appellant; Stephen Neville (instructed by Eversheds Sutherland) appeared for the respondent.
Eileen O’Grady, barrister
