March 24
The claimant’s consumer credit claim against the defendant was allocated to the small claims track. The notice of allocation referred the parties to CPR Pt 27 which governed proceedings under the small claims track and to Practice Direction 27A for guidance as to how the hearing would be conducted. The notice also informed the parties that if they could not, or chose not, to attend the hearing, they were required to write and inform the court at least seven days before the hearing, that 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 and that if they did not attend and did not give notice, the district judge might strike out their claim, defence or counterclaim. The claimant did not attend the trial hearing, but his solicitor did. The district judge held that in respect of the provision in CPR r 27.9(2)(a) which provided that where a claimant did not “attend” a final hearing or give the required notice of non attendance, his claim might be struck out, “attend” referred to attendance by the person who was actually bringing the claim, rather than the claimant’s side of the case; that “attend” meant “actively join in the process of the final hearing”; that it was not the same as the party attending by his advocate; that the language used in the notice requirement imposed by rule 27.9(1)(a) on a party who did not want “to attend” the hearing supported the view that what was at issue was personal attendance by the claimant and not by his advocate; that there was no rule of procedure or practice that someone could “attend” by their legal representative; and that they could “appear” by their legal representative, but attendance involved the “actual engagement of the claimant”. The district judge determined that the claimant’s case was not made out on the documents, that cross-examination of the claimant was all the more important given the discrepancies between the claimant’s evidence and the documents and that the interests of justice demanded that the claim be struck out on the grounds that the absence of the opportunity to cross-examine the claimant was an injustice to the defendant and interfered with the pursuit of the overriding objective. The judge in the County Court upheld that decision on the claimant’s appeal.
On the claimant’s further appeal—
Held, appeal allowed. A party to litigation was entitled to represent himself, or to be represented by a legal representative or representatives and Part 27 did not expressly impinge on that right. The judge erred in finding that the claimant did not “attend” the trial for the purposes of CPR 27.9(2)(a) when, although he was not present, his legal representative was, and in finding that the court therefore had power to strike out the claim. Although there were significant differences between the small claims track and the other tracks and the smaller amounts at stake meant that the parties and the court were expected to, and could, 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 CPR, namely rule 27.9 and rule 39.3, with apparently similar functions, but which applied to different tracks, were to be interpreted differently, even when the greatest allowance was made for the different contexts of rule 27.9 and rule 39.3 (paras 100—106, 107, 108).
Jonathan Butters (instructed by HD Law Ltd, Bradford) for the claimant.
Stephen Neville (instructed by Eversheds Sutherland) for the defendant.