An update following Owen v Black Horse Ltd [2003] EWCA Civ 325 – can a litigant ‘appear’ at Court via their legal representatives?

In this matter, the Claimant brought a case against the Defendant relating to credit issues, and the claim was allocated to the Small Claims Track. At the hearing, the Claimant’s solicitor attended, but the Claimant did not. As a result of the failure to attend, the District Judge struck the claim out. The matter was then appealed and the striking out was upheld by the Circuit Judge.

The Court of Appeal allowed the appeal on the basis that the Claim had been struck out since attendance by the Claimant’s solicitor did not amount to attendance by the Claimant in accordance with CPR 27. The Court of Appeal held that the Claimant has the right to appear via their legal representative.

Essentially, the decision was made by interpretation of CPR 27. The District Judge and Circuit Judge had applied CPR 27.9 and based the decision on a construction of Fast Track rules. Whereas, when the matter came before the Court of Appeal, the Judge relied on CPR 27.11 which states:

“Setting judgment aside and re-hearing

(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”.

In summary, it was said, “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 does not expressly impinge on that right”.

However, whilst it may be the case that the hearing can go ahead in the absence of a litigant, so long as their representative is in attendance, a party who attends personally would be in a better position than one who does not. The outcome of this case could have been different should the matter had been allocated to the fast track, and so the party who does not attend runs the risk of the claim being struck out.

The lesson here of course, is that parties to proceedings should attend hearings!

If you have any questions about this Article, please contact Senior Associate Solicitor Thomas Stockton at MSB.

Law is correct as of 23rd May 2023

Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to provide a general overview of the law for educational purposes. You are respectfully reminded that it is not intended to be a substitute for specific legal advice and should not be relied upon as legal advice. No liability is accepted for any error or omission contained herein.

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