Summary and background

The Court of Appeal has interpreted the rules for non-attendance on the small claims track in a manner consistent with rule 39.3 in finding that an absent Claimant nevertheless “appeared” at his trial, through his legal representative.

The Claimant’s claim under the unfair relationship provisions of the Consumer Credit Act 1974 related to his purchase of payment protection insurance (“PPI”) in circumstances where the Defendant had not disclosed commissions. Unfairness and limitation, including deliberate concealment, were among the issues to be determined.

The matter was first heard by DDJ Sandercock in December 2021. The Claimant did not attend the hearing, but his solicitor did. A non-compliant rule 27.9(1) notice was provided. The judge noted that there was “rich material” in the Claimant’s own case upon which the Defendant should be able to cross-examine him. The Defendant had been deprived of that opportunity. He struck out the claim under rule 27.9, referring to justice and the overriding objective.

Rule 27.9 provides that on the small claims track, if a party does not attend a final hearing, but provides written notice in compliance with rule 27.9(1)(a) and (b), the court will take into account the party’s statement of case and other documents in deciding the claim. If the Claimant does not attend the hearing and give the notice referred to, the court may strike out the claim.

Rule 27.11 states that a party who was neither present nor represented at the hearing of their claim and who has not given notice under rule 27.9(1) may apply to have judgment set aside and their claim re-heard.

The Claimant appealed on the basis that he had appeared through his solicitor, and so the district judge did not have the power to strike out his claim. The first appeal was dismissed by HHJ Jarman KC in July 2022, who found that the phrase “if a Claimant does not attend the hearing” meant “if the Claimant is not present at the hearing, even if he is represented by his solicitor”.

The Court of Appeal found otherwise and allowed the Claimant’s appeal in March 2023.

Consistency between rules 27.9 and 39.3

Lady Justice Laing referred to rule 39.3, which applies to hearings which are not conducted within the smalls claims track. Rule 39.3 provides that if the Claimant does not attend trial, the court may strike out his claim and any defence to counterclaim. In two cases dealing with rule 39.3, Rouse v Freeman [2001] 11 WLUK 876 and Falmouth House v Abou Hamdan [2017] EWHC 779 (Ch), a party was deemed to have “attended” by or through their legal representatives, even if the party was not present.

Lady Justice Laing considered that the views expressed by the judges in Rouse v Freeman and Falmouth House v Abou Hamdan were “obviously right” with respect to rule 39.3. She found that there was no good reason for similar CPR provisions (i.e. rules 27.9 and 39.3) with apparently similar functions to be interpreted differently, even though they applied in the different contexts of their respective tracks.

No good rationale for inconsistency between rules 27.9 and 27.11

The Defendant had argued that the different language between rules 27.9 and 27.11 must be deliberate, and so too the potential outcomes. If a Claimant did not attend, nor were they represented at a hearing, they could apply under rule 27.11 to have judgment set aside. However, if the Claimant did not personally attend the hearing, but their legal representative did so on their behalf, it was open to the representative at the hearing to put forward the reasons why the claim should not be struck out.

Despite seeing the force in this “linguistic argument”, Lady Justice Laing rejected it by considering its implications. There was no sensible or practical reason for a mismatch between the circumstances in which an absent Claimant’s case could be struck out (rule 27.9) and reinstated (rule 27.11). Such a mismatch would be incoherent.

Comment

Essentially, the judgment was that it would be irrational for there to be different consequences for the scenarios which I label ‘A’, ‘B’ and ‘C’. In Scenario A, the Claimant attends trial without representation. In Scenario B, the Claimant does not attend, but their representative does. In Scenario C, neither the Claimant nor their legal representative is present.

The Claimant in Scenario A would not be susceptible to strike out under rule 27.9, whereas the Claimant in Scenario B would be exposed to that risk, despite a representative being present.

The Claimant in Scenario C would be in a stronger position in seeking set aside and reinstatement under rule 27.11 than the Claimant in Scenario B.

This judgment is a victory for common sense.

Of course, the inability of the Defendant to cross-examine the Claimant is an important point. However, this judgment only deals with the power to strike out. It remains the case that an absent Claimant risks failing to prove their case on the balance of probabilities. This is especially so where a Defendant raises compelling arguments that the Claimant – due to their lack of live evidence and/or the insufficiency of their written evidence – cannot defeat. Closing submissions about unfairness to a Defendant who is prevented from cross-examining a Claimant will always have significant force.

Lucy Plumpton regularly appears in matters concerning the unfair relationship provisions of the Consumer Credit Act 1974.

For further information on Lucy’s practice or to instruct her, please contact Tony Atkins, Senior Clerk or Jonathan Cue, Senior Civil Clerk  on 020 7353 0711 or via email: clerks@pumpcourtchambers.com.