High Court grants relief to defendant for non-attendance

Background

Falmouth House v Abou-Hamdan concerns a dispute between the parties over service charges.  Falmouth House was the freehold owner of a building in West London, in which Mr Abou-Hamdan was a lessee of a flat.  In November 2013, Falmouth House issued a claim form against Mr Abou-Hamdan claiming more than £30,000 for arrears of service charges and contributions to a reserve fund.

Mr Abou-Hamden appealed against three orders made during the course of the litigation:

1.       With the trial originally listed for 20 April 2015, the judge on that day, HHJ Mitchell, made the first order re-fixing the trial date for hearing on or after 13 August 2015.  This order provided that if Mr Abou-Hamdan did not attend in person his defence would be struck out, and judgment would be entered for Falmouth House.  The trial was eventually re-fixed for 14 December 2015.

2.       On 10 December 2015, DJ Langley dismissed, Mr Abou-Hamdan’s application to be permitted to give evidence at the 14 December trial by video-link.

3.       At the trial on 14 December 2015, Mr Abou-Hamdan did not attend in person, but counsel did appear on his behalf, who applied for relief from sanctions for non-compliance with the Mitchell Order.  HHJ Saggerson refused this application, meaning that Mr Abou-Hamdan’s defence was struck out, and judgment was entered in default for Falmouth House for just over £35,000.

High Court

At the High Court, the court considered whether, in refusing Mr Abou-Hamdan any relief from sanctions due to his failure to comply with the Mitchell Order, the County Court had applied stage one of the Denton test correctly.

As reported by SRF in our account of Phelps v Button, the ‘Denton Test’ sets out three criteria to decide whether relief should be granted to a party which has breached a court rule, practice direction or court order:

1.       Was the breach of the rule, practice direction or court order sufficiently serious?

2.       Is there a good explanation for the breach?

3.       Having mind of all the circumstances, is it just to grant relief from sanctions for the breach?

Outcome

In his opening remarks, Justice Nugee stated that there were two established and uncontroversial principles:

1.       That a party to a claim has a right to appear in person and represent himself at trial, but also has a right to be represented by counsel.

2.       A party is generally entitled to decide for themselves whether to give evidence or not.

With these two principles firmly accepted, there no reason why a defendant could not instruct counsel to appear at trial on his behalf, or decline from giving or calling evidence.

On the construction of the Mitchell Order, the judge held that requiring Mr Abou-Hamdan to “attend in person” should, on its natural meaning, be interpreted as requiring him to appear at court in London; neither appearing via video-link from Dubai or being represented by counsel in London constituted compliance with the order.  The Mitchell Order has undoubtedly been breached.

However, on the more important point of whether the Saggerson Order complied with the Denton tests, the judge held that the breach of the Mitchell Order was not serious or significant, as it did not put the trial date at risk.

The judge allowed Mr Abou-Hamdan’s appeal against the Saggerson order, stating that the judge at first instance misapplied the first Denton test by finding that the breach of the Mitchell Order was serious and significant. The order was set aside, meaning that the case was left as one in which a trial had not taken place.  The judge left the parties to apply to the court for directions for the issues to be tried.

Conclusion

We can take two lessons from this interesting judgment.

Firstly, it is important when considering the seriousness of the breach of particular court order, to consider what the purpose of that court order was.  The Mitchell Order was intended to prevent the trial from being delayed and re-fixed a third time, and the judge at first instance would apparently have been satisfied for Mr Abou-Hamdan to attend on the first day of the trial and be absent from then on.

Secondly, Justice Nugee’s consideration of the fairness of the Mitchell Order (in an obiter section at the end of his judgment) shows the importance when drafting any ‘unless order’ (i.e. one which threatens consequences if certain action is not taken) assessing whether the order would be an appropriate and proportionate means of achieving the objective.

For more information please contact Alexandra Withers.