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James Mather
James Mather,
Category: Law
Satisfied Customers: 22629
Experience:  Senior Partner at Berkson Wallace
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My daughter lives and works abroad, but before leaving the

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My daughter lives and works abroad, but before leaving the UK, she filed a claim in the small claims court against a former landlord. Each time a date for the hearing has been fixed, she written to the court to explain that she cannot attend due to her living abroad, and has asked the judge to decide the matter in her absence. She has complied fully with CPR 27.9 by giving more than 7 days' notice, both to the court and to the other party, and confirmed her compliance by citing the relevant 27.9 paragraphs. Both times, the judge has struck out her claim (the other party also didn't attend). After the first occasion, she paid £45 to have it reinstated, but now that it has happened for a second time, she doesn't know what to do. All the court will say is that she hasn't complied with 27.9, when she knows she has. They won't say how or why the judge has made that ruling. All they will suggest is that she seeks legal advice.
Why she think this can be dealt with in absence?
Customer: replied 4 years ago.

According to the guidelines for small claims, the judge can deal with the claim in the claimant's absence provided the she has submitted full details - she has, many times over. She has submitted the claim, a witness statement, and extensive annexes of supporting original documents. Moreover, part of the claim relates to the fact that the landlord didn't register her deposit, which is a mandatory requirement carrying a fixed penalty of three times the deposit.

I can tell you what the problem is. And it is quite simply that the courts
take a dim view of someone who issue proceedings and then does not turn up in
court, expecting the court to deal with it in their absence. It doesn't matter
where she is living. It is as simple as that. Yes, the court does have the
discretion to deal with it in a claimant's defendant's absence, but that is
usually reserved for a default or summary judgement if a defendant fails to
feature in court.

I am afraid that she is faced with instructing solicitors and paying the
costs. She will not get those costs back even if she wins.

I will also tell you that the courts are very reluctant to enforce this
three times the deposit penalty because it is seen as being a windfall by the
tenant and also seen as being punitive to a landlord. It is a long established
doctrine in English law that civil law is not punitive, but merely puts the
claimant back into the possession they would have been had whatever happened,
not occurred. The best she could hope for. Therefore, is the return of the

The courts also take the view that although legislation changed last year
to make a 30 day period for protecting the deposit mandatory, that even if it
is protected or late, the claimant has suffered no loss and therefore is only
entitled to the return of the deposit and no extra.

If she were asking me the question as to whether she should instigate
proceedings to recover the deposit. I would tell her to go for it but don't
expect to get any more than the normal deposit that she would be entitled to in
any event, unless the landlord has never ever (even at the time of issuing
proceedings) protected the deposit.

I would also tell her that if she was not able to attend court or instruct
solicitors, don't bother wasting the court fee

I appreciate that this is not the answer you wanted, in all probability,
but there is no point in me misleading you.

Can I help further?

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The thread remains open for us to continue this exchange

James Mather and other Law Specialists are ready to help you
Customer: replied 4 years ago.

Thanks for that. It would appear, therefore, that the Notes for Guidance on Small Claims are misleading because nowhere does it state that courts have the discretion to 'take a dim view' on non-attendance. On the contrary, the notes make specific provision for non-attendance. It also sucks that the courts don't actually give the reason for striking out the case, other than to cite 'non-compliance with 27.9' - she DID comply. I think a letter to my MP is called for. The whole point of the small claims procedure is to enable laypersons to mount claims without the need for solicitors. Thank you for your advice.

"Dim view" (my words of course) comes under discretion to deal in claimants absence. They have exercised discretion and decided not to. They dont have to give a reason.

I know how you feel but if a claimant doesnt attend, they cannot be cross examined in anyone (judge or claimant) has questions they wish to pose.

TBH I would be very surprised if she had got judgement after non attendance.

The letter to yr MP might make you feel better. I would save the stamp. Sorry.