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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Sunrule Ltd v Avinue Ltd [2003] EWCA Civ 1942 (26 November 2003) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2003/1942.html Cite as: [2004] 1 WLR 634, [2004] WLR 634, [2003] EWCA Civ 1942 |
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE MEDAWAR QC)
Strand London, WC2 |
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B e f o r e :
LORD JUSTICE DYSON
____________________
SUNRULE LIMITED | Claimant/Applicant | |
-v- | ||
AVINUE LIMITED | Defendant/Respondent |
____________________
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR R BURGESS appeared on behalf of the Respondent
____________________
Crown Copyright ©
The Background Facts
The Appellant's Submissions
"Mr Boyd's case is that the judge was in error in failing to allow the appeal on the basis that Mr Boyd was entitled to act as a lay representative for the defendant."
In his written skeleton argument Mr Boyd says:
"Relying on the booklet 'The Small Claims Track 7' page 10, 'Lay Representative' Mr John Boyd attended the hearing with me in this capacity, only to be informed at the hearing by the District Judge that he was not interested in hearing from anyone other than the Claimant and the Defendant in person."
It was further submitted in the skeleton argument that judgment was given against Sunrule and that that judgment was against the weight of the evidence. It is submitted that if Sunrule's lay representative had been allowed to speak on its behalf outlining the facts in full, Sunrule considered that the judgment would have been in its favour.
"Yes. If you do not have a solicitor, you can take someone with you to speak for you. This person is called a 'lay representative' and can be anyone you choose, such as your husband or wife, a relative, a friend or an advice worker. If possible, the lay representative should not be a witness. Your lay representative cannot go to an appointment without you unless you have permission from the court."
"You have quite an accent, so I want to make sure that I understand everything."
There is another point in the transcript at page 29 when Mr Dimopoulos explained:
"Because my English is not so good I ask Mr Boyd to help me."
"Was it a fairly informal arrangement?
A. Not really, it's just casual."
Mr Boyd cited that as an example of Mr Dimopoulos not properly understanding English.
"Invoice No 1010 -- Not delivered, no delivery note Disputed amount £76.38."
The Respondent's Submissions
"3 Representation at a Hearing.
3.1 In this paragraph:
(1) a lawyer means a barrister, a solicitor or a legal executive employed by a solicitor, and
(2) a lay representative means any other person.
3.2(1) A party may present his own case at a hearing or a lawyer or lay representative may present it for him.
(2) The Lay Representatives (Right of Audience) Order 1999 provides that a lay representative may not exercise any right of audience:-
(a) where his client does not attend the hearing;
(b) at any stage after judgment; or
(c) on any appeal brought against any decision made by the district judge in the proceedings.
(3) However the court, exercising its general discretion to hear anybody, may hear a lay representative even in circumstances excluded by the Order.
(4) Any of its officers or employees may represent a corporate party."
"I think this is the easiest way of going through this. You will have an opportunity to ask questions.
MR DIMOPOULOS: Can I interfere there?
JUDGE SILVERMAN: You will have an opportunity when he has finished.
MR DIMOPOULOS: Okay. Thank you."
"Do you have any questions of this gentleman?
MR DIMOPOULOS: No questions particularly, but I would like to go----
JUDGE SILVERMAN: I will hear your side, but do you have anything you want to ask on what he said?
MR DIMOPOULOS: Not really."
Conclusions
"A party may present his own case at a hearing or a lawyer or lay representative may present it for him.
"The Lord Chancellor may provide that there shall be no restriction on the persons who may exercise rights of audience or rights to conduct litigation in relation to proceedings in a county court of such a kind as may be specified in the Order."
"Q. On no occasion would you leave the goods without signature?
A. No, the goods I deliver I get a signature for."
"I've got the invoice. I'm trying to find the delivery note."
On page 18 line 15 he says:
"I can't tell from the invoice how many, because there's other stuff on there as well. So I'm not - I will have to ------"
(see also his answer at page 19 line 11 and at page 20 line 37). At page 21 line 26 his evidence is that he does not prepare the invoices himself.
"I don't know about the invoiced stuff. I just said I know what I delivered."
"11(1) The Lord Chancellor may provide that there shall be no restriction on the persons who may exercise rights of audience or rights to conduct litigation in relation to proceedings in a county court of such a kind as may be specified in the Order."
"3(1) Subject to paragraph (2), any person may exercise rights of audience in proceedings dealt with as a small claim in accordance with rules of court.
(2) A lay representative may not exercise any right of audience:-
(a) where his client does not attend the hearing;
(b) at any stage after judgment; or
(c) on any appeal brought against any decision made by the district judge in the proceedings."
"Any of its officers or employees may represent a corporate party."
With respect, I am inclined to doubt this. It seems to me that the restrictions on the right of audience in paragraphs (a) to (c), which appear in the statutory instrument and which are repeated in the Practice Direction, are intended to apply to all lay representatives. Provisions in the Practice Direction which disapplied that restriction where a corporate party is represented by an officer or employee would be ultra vires the statutory instrument.
In my view the reason for the provision in paragraph 3.2(4) is to make it clear that a company has a right to be represented by one of its officers or employees. I accept that, on that basis, the provision may be said to be otiose but arguments based on surplusage are often of little weight. In my judgment that is the case here. I find it impossible to conclude that paragraph 3.2(4), by implication, restricts the wide definition of "lay representative" in paragraph 3.1(2).
I think that on the true construction of the Practice Direction a company may be represented by a lay representative who is not one of its officers or employees. It is not, however, necessary to reach a concluded view on that point for the resolution of this appeal.
Moving away from the point of construction, I entirely agree, for the reasons given by Lady Justice Arden, that the defendant did not have a fair trial. For that reason the appeal should be allowed.