Jonathan Butters wins Court of Appeal case clarifying the jurisdiction to strike out for non-attendance at trial

In Owen v Black Horse Limited [2023] EWCA Civ 325, the claimant did not personally attend a small claims track final hearing but his solicitor attended on his behalf. The Deputy District Judge held that the claimant had not attended the trial for the purpose of CPR 27.9(2) and struck out the claim, which decision was upheld on appeal before a Circuit Judge. Laing LJ (Baker and Edis LJJ concurring) found for the claimant on second appeal. The claimant had attended the trial for the purpose of CPR 27.9(2), through his solicitor. There was no jurisdiction to strike out the claim for non-attendance in those circumstances. The same approach had been taken by Gross J and Nugee J at High Court level to the similarly worded provision at CPR 39.3 for fast and multi-track trials and this was obviously right. There was no good reason why a similar provision should be interpreted differently on the small claims track. A party to litigation is entitled to represent himself or be represented by a legal representative. On the approach of the courts below the circumstances where a claim could be struck out for non-attendance would not match the circumstances where a party whose case has been struck out for non-attendance could apply to have his case reinstated. It would not be rational for the rule to place a party who attends personally and a party does not attend at all in a better position than a party who does not attend personally but who is represented.

A copy of the judgment can be found here.

Jonathan Butters was instructed by Kevin Durkin of HD Law for the claimant.

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