Falmouth House Ltd v Abou-Hamdan [2017] EWHC 779 (Ch)

In this case, the defendant appealed against their defence being struck out for non-compliance with an ‘unless order’. Although this was not a casualty claim the courts apply the same principles when assessing whether a breach has been serious or significant and whether relief from sanctions should be granted.

The facts

The claimant had leased a flat from the defendant and subsequently brought a claim for service charge arrears. The trial of the claim was set for April 2015 but both parties sought an adjournment on the basis that the defendant was abroad and had no representation. Also, the claimant had instructed a new firm of solicitors and was not ready to proceed to trial so the adjournment was granted. At this stage, the judge ordered that the defence would be struck out unless the defendant attended the re-listed trial in person.

The defendant was still abroad when the trial was listed so asked to give evidence by video link. The trial judge refused, stating that it would directly conflict with the unless order. The defendant did not attend the trial on 14 December 2015, but was represented by counsel who was ready to proceed. The trial judge held that the defendant’s failure to attend was a serious breach of the unless order and as a result the defence was struck out.

The defendant submitted that the unless order should not have been interpreted as meaning that they had to be physically present at court, because the transcript of the judge's discussion with the respondent's counsel in April 2015 showed that the defendant was merely to "attend the resumed trial", and such attendance could be fulfilled by a legal representative representing them.

Also the defendant submitted that the trial judge was wrong for striking out the defence because the trial could have proceeded without them with no prejudice being caused to the claimant.

The decision

The court concluded that the unless order had required the defendant to attend the trial in person and as a matter of ordinary language, this meant that the defendant had to physically attend and could not be seen as attending via a representative.

The court specifically held that reference could be made to the transcript in respect of the discussion between the judge and counsel to elucidate the meaning behind the order but could not be used to contradict the words of the order. As a result, although the judge had not said that the defendant had to attend the trial "in person" during his discussion with counsel, the addition of those words in the order made the requirement clear. In addition, the court held that the natural meaning of "attend in person" required the defendant to be physically present in court so an appearance by video link would not be sufficient.

As a result, it was held that the defendant was in breach of the unless order but it was concluded that the breach was not serious or significant. In reaching this decision the court noted that it would not have made any difference whether or not the defendant had been physically present during the trial. Also the transcript of the judge's discussion with counsel showed that the purpose of the unless order was to ensure that the trial in December 2015 went ahead.

The court concluded that the trial judge had incorrectly focused on why the defendant had not attended trial when they should have considered the practical consequences of the defendant appearing by way of counsel rather than in person.

The court held that there were no real practical consequences other than the possibility of it being slightly less convenient for counsel to have taken instructions. Further, the court held that the unless order required the defendant to appear only on the first day of the trial, which illustrated that its purpose was not to ensure the defendant’s presence throughout but to ensure that the trial went ahead as planned. As a result, the court reinstated the defence and listed the case for trial.

Interestingly, the court stated that if fairness had been considered then it would not have been held fair for the unless order to have been imposed on the defendant when both parties sought the adjournment in April 2015. The court stated that it would have been inappropriate to impose upon the defendant an obligation that they physically attend trial, without reason being provided, because a litigant had the right to appear by solicitor and/or counsel.

What this means for you

In this case, the court took a common sense approach by looking at the ordinary meaning of the wording of the unless order. The court made clear that the transcript of a hearing can be used to show what was being discussed and the views behind the meaning of a court order but could not be used to change the literal meaning of its wording. However, the court concluded that the defendant’s breach had not been serious or significant because whether or not they had attended trial had no bearing on the case.

This case shows that the courts will look at the strict wording of court orders when assessing if there has been compliance but will also assess whether a breach has any impact on the case or adverse effect on any of the other parties. In this case, the defendant’s breach had no practical consequences on the claimant, the court or the conduct of the litigation, and this was taken into account by the court.

There will be occasions where it is not appropriate to strike out a party’s case due to them not physically attending trial where they are represented through the attendance of their solicitors or counsel. In this case, the court highlighted that if physical attendance at trial was imposed upon a party then reasons should have been provided in respect of why this had been done. As a result, it can be seen that a party to a claim may not physically have to attend trial where it would have no bearing on the conduct of the litigation or negative impact on the other party or the courts.