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

[2017] EWHC 779 (Ch)Appeal Refs: CH-2016-000017CH-2016-000098CH-2016-000099
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
Order of HHJ Mitchell dated 20 April 2015
Order of DJ Langley dated 10 December 2015
Order of HHJ Saggerson dated 14 December 2015
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 10/04/2017
Before
MR JUSTICE NUGEE
Between
FALMOUTH HOUSE LIMITEDClaimant/RespondentMICHA’AL KAMEL ABOU-HAMDANDefendant/Appellant
Angus Gloag (instructed under Direct Access) for AppellantJennifer Meech (instructed by Judge & Priestley LLP) for RespondentHearing Hearing dates: 27 and 28 October 2016
Judgment Approved

Introduction

[1]In this matter I heard an appeal by the Defendant, Mr Abou-Hamdan, from a number of decisions of the County Court at Central London over 2 days. At the end of the hearing I gave an unreserved oral judgment allowing the appeal as I had reached a clear view on the matters argued before me and I thought the parties should know the position straight away. That judgment was however expressed quite briefly and I offered counsel an opportunity to have a more detailed judgment if they wished it. Ms Meech, who appeared for the Respondent, Falmouth House Ltd (“FHL”), said that she wished to take up that invitation. This judgment is therefore the more detailed judgment that I offered to provide.[2]The underlying dispute between the parties is a dispute as to service charges. FHL is the freehold owner of a building known as Falmouth House in West London. Mr Abou-Hamdan is the current lessee of a flat in the building. In November 2013 FHL issued a claim form against him claiming a little over £30,000 for arrears of service charges and contributions to a reserve fund. Mr Abou-Hamdan served a Defence and Counterclaim to that claim.[3]The appeals concern procedural orders. I will have to give more details in due course but in very brief summary there are three relevant orders as follows:(1) Trial was originally listed for 20 April 2015. On that day, in circumstances that I will have to consider, HHJ Mitchell made an Order (“the Mitchell Order”) which re-fixed the trial date for hearing on the first convenient open date after 13 August 2015, and which provided that if Mr Abou-Hamdan did not attend in person on the date so re-fixed, his Defence and Counterclaim would be struck out and judgment entered for FHL.(2) Trial was then re-fixed for 14 December 2015. On 10 December 2015 DJ Langley heard, and dismissed, an application by Mr Abou-Hamdan to be permitted to give evidence by video-link (“the Langley Order”).(3) On 14 December 2015, the day fixed for trial, Mr Abou-Hamdan did not attend in person. He did however appear by counsel, who applied for relief from sanctions for non-compliance with the Mitchell Order. That was refused by HHJ Saggerson, with the inevitable result that Mr Abou-Hamdan’s defence was struck out (his counterclaim had already been discontinued), and judgment was entered in default for FHL in a sum of just over £35,000, together with indemnity costs (“the Saggerson Order”). The practical effect of all three Orders taken together is that Mr Abou-Hamdan has had judgment for a significant sum entered against him as a sanction for not attending the trial in person despite the fact that he had instructed counsel to appear for him at trial.[4]That seems on the face of it to be a somewhat surprising state of affairs. There are two features of the way in which civil litigation is conducted in this country that I would have thought were well established and uncontroversial. The first is that although an individual who is a party to litigation has a right to appear in person and represent himself at trial (and these days of course is often obliged to do so for practical reasons), he or she also has a right to appear by counsel. In criminal cases Art 6(3)(d) of the European Convention on Human Rights confers an express right on anyone charged with a criminal offence to “defend himself in person or through legal assistance of his own choosing”; although that only applies to criminal cases, my understanding is that in England at any rate it reflects a common law principle which applies equally in civil cases. I am not aware of any principle which would prevent a litigant from appearing by counsel. Nor am I aware of any general requirement for a litigant who appears by counsel to be himself physically present in court: at many hearings this is entirely unnecessary.[5]The second feature of civil litigation is that a party is in general entitled to form their own view whether to give evidence or not. A claimant is not obliged to give evidence if he can make out his case by some other evidence or by admissions; a defendant is not obliged to give evidence if he can make out a defence by other evidence, or if the claimant has failed to establish his case. A defendant who has decided not to give evidence can still cross-examine the claimant’s witnesses with a view to showing that the claimant has failed to make out his case; or a defendant may decide at the end of the claimant’s case to elect not to call any evidence and submit that there is no case to answer. All of this is very familiar and (largely) unaffected by the Court’s case management powers under the CPR. In saying this, I am referring to the ordinary run-of-the-mill trial; I am not addressing unusual circumstances where the Court may have power to compel the attendance of a party for the purposes of cross-examination, but about the usual mode of trying civil claims.[6]It follows from these two features of civil litigation that there is nothing on the face of it irregular, contrary to the rules, improper, or even very exceptional about a defendant who(i) instructs counsel to appear at trial on his behalf and(ii) does not himself propose to give, or call, evidence. In practice such a defendant will necessarily be confined in his defence to having counsel cross-examine the claimant’s witnesses, scrutinise the evidence the claimant has adduced, and submit that on that evidence, or as a matter of law, the claimant’s claim has not been made out, or not made out in full. But there is no reason why he should not adopt such a course if he wishes to. And if that is the course he proposes to adopt, there would equally seem on the face of it no reason why the defendant should have to attend court in person. If he is neither going to be representing himself, nor giving evidence, there is no obvious purpose served in requiring him to attend personally, “in order” (as it was put in a skeleton argument filed on Mr Abou-Hamdan’s behalf for permission to appeal) “to sit at the back of the court”.[7]By the time of the trial fixed for 14 December 2015, this was Mr Abou-Hamdan’s position. He had instructed counsel to appear for him. He had abandoned his counterclaim, and so was limited to defending FHL’s claim. He was not proposing to give evidence. (There was a suggestion that counsel might rely on his witness statement as hearsay evidence under CPR 32.5(1) but it was accepted that in the circumstances it would be likely to carry very little weight). Counsel was ready for trial. And yet Mr Abou-Hamdan found that judgment for the full amount of the claim, and indemnity costs, was entered against him without his being able to contest the claim on its merits. That as I say seems a surprising result, and one whose justice is not immediately apparent: compare Rouse v Freeman (Times, 8 Jan 2002) at [16] per Gross J (commenting on CPR 39.1):
“Put quite simply, there are a great many situations where the personal attendance of the party is irrelevant or most unlikely. On analysis, a party's personal attendance is only or principally likely to be of relevance, apart from the question of giving instructions, where that party is to give evidence. And if that is right then the remedy of a strike out seems inappropriate.”
[8]Mr Abou-Hamdan sought to appeal all three orders. The applications for permission were considered together by Mann J on 28 April 2016, and dealt with in two Orders made by him that day. In the first he transferred the appeal from the Langley Order to the High Court. In the second, he extended time for appealing the Mitchell Order and gave permission to appeal all three Orders, directing that they be managed and heard together. He also gave FHL liberty to apply to set aside the extension of time in relation to the Mitchell Order, a liberty which FHL duly took up by making such an application on 10 May 2016. There are therefore formally four matters before the Court: an appeal against each of the three Orders made in the County Court together with FHL’s application to set aside the extension of time for appealing the Mitchell Order.

Facts

[9]FHL issued its claim form on 14 November 2013. It claimed a total of £31,674.08 by way of arrears of service charges and associated fees and costs under the provisions of a lease of Flat 15 Falmouth House, of which Mr Abou-Hamdan had been the lessee since 2007.[10]On 13 December 2013 a Defence and Counterclaim, settled by counsel, was served by Mr Abou-Hamdan. The Defence raised issues as to whether the proper notices had been served as required by statute or by the lease, and whether the service charges were reasonable. The Counterclaim, as originally pleaded, asserted that FHL had become registered as proprietor of Falmouth House following successful enfranchisement by a number of leaseholders in 2004; that Mr Abou-Hamdan was a shareholder of FHL; that he was told when he purchased his flat that it had been agreed that FHL would declare dividends to the shareholders; and that FHL had failed to do so despite receiving substantial sums from the granting of extensions to leaseholders, selling off a porter’s flat and other matters. A Reply and Defence to Counterclaim (which I have not seen) was served on 20 January 2014. On 19 March 2014 Mr Abou-Hamdan served a Request for Further Information seeking details, among other things, of the service charge demands relied on by FHL as well as budgets and annual accounts, to which FHL gave a rather uninformative answer on 22 April 2014.[11]The Counterclaim as originally pleaded appears to have been based on a false premise as Mr Abou-Hamdan was not a shareholder in FHL, FHL being a wholly-owned subsidiary of another company, Falmouth House Freehold Company Ltd (“FHFCL”). On 26 September 2014 FHL applied to strike it out. That led to Mr Abou-Hamdan amending his Defence and Counterclaim in October 2014, the amendments again being settled by (different) counsel, to allege that he was a shareholder in FHFCL which in turn held FHL, that the agreement was that FHL would declare dividends to FHFCL for onward payment to the shareholders of FHFCL, that this agreement was binding on FHL, and that FHL had failed to declare such dividends in breach of the agreement. FHL was however given permission to restore its application to strike out the counterclaim, which it did, and the adjourned application was ultimately listed to be heard at the beginning of the trial.[12]Mr Abou-Hamdan had had solicitors acting for him called WGS, but on 17 November 2014 he filed a notice saying that they had ceased to act for him and that he would be acting in person.[13]On 9 January 2015 the trial was fixed to commence on 20 April 2015, with 5 days reserved.[14]On 20 February 2015 Mr Abou-Hamdan served his witness statement for trial. It addressed both the claim and the counterclaim.[15]On 20 March 2015 there was a Pre-Trial Review (or PTR) held before Mr Recorder Steynor, which was attended by counsel for both parties, counsel for Mr Abou-Hamdan acting on a direct access basis. Various directions were given in anticipation of the trial fixed for 20 April.[16]On 8 April 2015 FHL’s solicitors, Fisher Meredith, applied to come off the record. That application was granted on 10 April 2015.[17]On 14 April 2015 Mr Abou-Hamdan sent an e-mail to Ms Barton at Fisher Meredith in which he said among other things that she was well aware that he had been out of the country since December 2014, that he had no representation for the trial scheduled for 20 April and that he was seeking to adjourn to the first open day after 4 months. It seems that he also sent an e-mail to the Court Listing Office seeking an adjournment.[18]On Thursday 16 April (two working days before the trial date) FHL instructed new solicitors, Judge & Priestley. On the morning of Friday 17 April Mr Oakley of Judge & Priestley sent a letter to the Court by e-mail enclosing a Notice of Acting and an application by FHL. The application notice sought an order that the trial be vacated and re-listed, and in the covering letter Judge & Priestley said they would be attending on Monday to make the application for an adjournment and consequential directions. In the light of what happened subsequently, it is to be noted that Mr Oakley frankly admitted in the application notice that, having been instructed the previous day, he had not yet at the time of completing it received any papers from Fisher Meredith (which he was expecting – and it appears in due course received – around lunchtime) and that orders made at the PTR had not been complied with. He did not know if an order from that hearing had been sealed but he had a draft order which provided for witness statements to be served by 27 March with supplemental statements by 10 April, for skeleton arguments to be filed and exchanged by 4 pm on 13 April, and for FHL to file and serve a bundle by 4 pm on 14 April. Mr Oakley accepted that no further witness statements had been served, nor had skeleton arguments or a trial bundle been filed and served. He said he understood that Fisher Meredith had made an application to extend time for the service of witness statements which was on the Court file. He referred to Mr Abou-Hamdan’s e-mail of 14 April, and then said:
“For the reasons noted in this application the Claimant agrees to the request for an adjournment but makes this formal application as it is of course a matter for the Court as to whether to accede to such request.”
He added:
“On behalf of the Claimant I apologise to the Court for the fact that the order of the 20 March has not been complied with and the effect this will have on the listing of this matter.”
Consistently with this his application notice sought an order that if and insofar as necessary the Court grant the Claimant relief from sanctions.[19]Pausing there, the position so far seems to me to be clear. Mr Abou-Hamdan wished the trial to be adjourned because he was out of the country and did not have any representation. FHL wished the trial to be adjourned because it was in no position itself to proceed to a trial on Monday 20 April in circumstances where new solicitors had only been instructed on Thursday 16 April, where those solicitors only received the papers at lunchtime on Friday 17 April, and where the directions for trial made at the PTR had not been complied with. So far as appears from what Mr Oakley said, FHL, far from opposing Mr Abou-Hamdan’s request for an adjournment, or reluctantly acceding to it, agreed that an adjournment was required, and itself applied for one.[20]On Monday 20 April FHL appeared before HHJ Mitchell by counsel, Mr Kinnison, who duly applied for an adjournment. Mr Abou-Hamdan did not appear and was not represented. Judge & Priestley had e-mailed a copy of their application notice, and a draft order (presumably in the terms referred to below), to Mr Abou-Hamdan on the Friday evening at 18.14, from which he would have seen that FHL were agreed that there should be an adjournment and would be asking the Court for it.[21]Mr Kinnison prepared a skeleton argument for the hearing, which repeatedly made it clear that the adjournment was sought by both parties. It started “C and D respectfully ask the Court to adjourn the trial…”; it referred to the application as being “to all intents and purposes, one application, by consent”, and again as “an application, effectively by consent”; it referred to FHL as being “in extreme difficulty”, its new solicitors being unable to arrange for the proper preparation and filing of skeleton arguments and trial bundles; it referred to both parties as requesting the adjournment, for their respective reasons; and it concludes “C respectfully requests an adjournment.” Consistently with this, Mr Kinnison appended a draft order which provided for an adjournment in neutral terms, vacating the trial and directing that it be listed for hearing on the first open date after 13 August 2015, with directions in relation to skeleton arguments and the trial bundle, and providing for the costs to be costs in the case.[22]Nevertheless HHJ Mitchell took the view that the adjournment was largely necessitated by Mr Abou-Hamdan. He did not give any separate judgment, but I have seen a full transcript of the proceedings. Right at the outset of the hearing he said that he had read the application and that “it is largely for the defendant’s absence that the adjournment is being sought.” I was referred to large parts of the transcript and will have to come back to some of what was said, but at this stage I need only note the outcome which was the Mitchell Order I have already referred to. As in Mr Kinnison’s draft this directed that the trial listed for hearing on 20 April be vacated and re-listed on the first open date (adding “convenient to the parties and to the Court”) after 13 August 2015, but paragraph 4 contained an unless order providing that that unless Mr Abou-Hamdan paid the Court the sum of £155 (the issue fee for an application for an adjournment) by 13 May 2015 his defence and counterclaim would be struck out and judgment entered against him; and paragraphs 5 and 6 were as follows:
“5. Unless the Defendant attends in person on the date fixed for the commencement of the trial in accordance with paragraph 2 above, his Defence will be struck out and his Counterclaim will be struck out and dismissed, and judgment will be entered for the Claimant on its claim in the sum of £32,169.08 with interest as claimed and costs, such costs to be assessed and subject to a detailed assessment if not agreed. 6. The Court will not entertain any future application to adjourn the trial date fixed in accordance with paragraph 2 above, unless it is made at least 8 weeks before the date so fixed, or is made on extremely good grounds, supported by a Witness Statement or Witness Statements. It is recorded that any assertion by the Defendant that he is out of the jurisdiction will not result in the adjournment of the trial.”
Neither of these provisions had been foreshadowed in any way in Mr Kinnison’s draft Order.[23]Mr Abou-Hamdan paid the £155 fee as required. On 23 July 2015 the trial was re-fixed to commence on Monday 14 December 2015. In October 2015 Mr Abou-Hamdan instructed new solicitors, Hamlins, and they came on the record on 27 October 2015.[24]On 24 November 2015 (3 weeks before trial) Hamlins wrote to Judge & Priestley asking them to consent to Mr Abou-Hamdan giving evidence by video-link. They said that “our client will be attending the hearing but will need to do so by way of video conference” and that he was resident in Dubai, UAE. Judge & Priestley declined to give that consent. On 27 November 2015, Hamlins made a formal application to the Court seeking a number of directions in relation to the forthcoming trial, including an application that Mr Abou-Hamdan be permitted to give evidence by video-link. The application was supported by a brief statement that Mr Abou-Hamdan was resident in the UAE. That was supplemented later by a witness statement made by Mr Abou-Hamdan and filed on the morning of the hearing, about 30 minutes before the hearing was due to start, in which he said that he was in fact resident in (and worked in) Abu Dhabi not Dubai, but that video conference facilities were available at a number of law firms in Dubai which was a short drive away, which he could be available to attend. He also said that he had left the UK in December 2014 as a result of threats to his personal safety and had not returned since; given the threats he had received (which included death threats), he did not feel he could return. The witness statement also indicated that he had instructed counsel for the trial.[25]That application came before DJ Langley on 10 December 2015, that is the Thursday before the Monday fixed for trial. In a short judgment she dismissed the application. At paragraph [10] she said:
“The question has arisen as to whether, in considering this application, if granted, that the court would in effect be in conflict with the provisions of Judge Mitchell’s order. I do take the view that it would. I take the view that were the court to grant this application, it would be in direct conflict with paragraph 5 of the order made on 20th April 2015 and as that was made not only by a senior circuit judge but by the Designated Civil Judge for London, I clearly cannot and will not make an order in conflict with it.”
At paragraph [11] she went on to consider the application on its merits, concluding that it should not be granted. The reasons she gave were that FHL wished to cross-examine Mr Abou-Hamdan at some length, that she did not accept that Mr Abou-Hamdan remained at serious risk of his life as he had suggested, and that there were very lengthy delays before the application was made or the consent of the claimant was sought. She therefore made an Order, which I have already referred to as the Langley Order, dismissing the application and ordering Mr Abou-Hamdan to pay FHL’s costs, summarily assessed in the sum of £3346.80.[26]On Friday 11 December 2015 Mr Abou-Hamdan filed a notice of discontinuance of his Counterclaim.[27]Monday 14 December 2015 was the date fixed for trial. The case came before HHJ Saggerson. Mr Abou-Hamdan was not present but his counsel, Ms Fairley, was (as was counsel for FHL). Ms Fairley made an application for relief from sanctions. She accepted that on the construction of the Mitchell Order adopted by DJ Langley (that is, that attendance by video-link did not count as attendance in person), paragraph 5 of that Order would take effect and judgment would be entered for FHL unless such relief were granted, but she submitted that Mr Abou-Hamdan’s failure to attend was not in the circumstances a serious or significant breach.[28]I will set out her submission from the transcript in full since (to anticipate) it entirely accords with my own view of the matter. She said this:
“My reason for asking for relief is that the breach in this case, my client’s failure to attend, is not a serious or significant breach. We are in exactly the same position as we would be if he were here. We are ready to go ahead with the trial. I am here; I can make representations. I can cross-examine the claimant’s witness. It may be that you cannot or do not wish to give any weight to the defendant’s evidence, but so much the worst for my client. The claimant has not been prejudiced by the fact that the defendant is not here today. The litigation is not being adjourned. We are not seeking to postpone things further so that we can get hold of these documents. If the claimant wishes to proceed with a trial about service charges in the absence of any evidence whatsoever of what sums have been spent, then that is the claimant’s prerogative. I am asking for relief on the basis that the defendant’s failure to attend does not imperil that and does not imperil my client’s ability to put the claimant to proof on its case. So in that sense the breach is neither serious, nor significant. In those circumstances relief will ordinarily be granted. You do not need to go on to consider the second or the third questions set out in Denton.”
[29]Two things emerge from that submission. The first is that Ms Fairley had, or claimed to have, some grounds for thinking that putting FHL to proof of its case was not a formality – she was prepared to cross-examine, and had points about the failure of FHL to provide the documentation which she said it needed to prove its case (and indeed which she said had been sought but not provided). Second, she accepted that if Mr Abou-Hamdan could not give evidence by video-link, his witness statement would be likely to carry little or even no weight, but as she said that did not prejudice FHL – it only prejudiced him. She did in fact have an intention, if relief from sanctions were granted and the trial went ahead, to ask HHJ Saggerson to reconsider the question of Mr Abou-Hamdan giving evidence by video-link, but this part of her submission is premised on the basis that there will be no live evidence from him in accordance with the Langley Order.[30]HHJ Saggerson gave a judgment dismissing the application for relief from sanctions. He said he did not believe a word of the evidence that Mr Abou-Hamdan had given about death threats, and that the procedural history of the case indicated that Mr Abou-Hamdan was not prepared to attend court, that he did not want to give live evidence and that he did not want to be subject to cross-examination in the face of court, and was merely trying to put procedural obstacles in the way of the case being disposed of efficiently [13]. He said that Mr Abou-Hamdan must be taken to have understood that attendance in person meant precisely that, not attendance by counsel or solicitors or video-link but in person [17]. He then said that he did not accept that the breach was not serious [19]; Mr Abou-Hamdan knew exactly what he was doing and his failure to attend court was based on an excuse that he regarded as extremely implausible [20]; he therefore concluded that Mr Abou-Hamdan’s non-attendance was just a deliberate flouting of the judge’s order [21]. That was just an attempt by him to be as awkward as possible. He could have asked HHJ Mitchell for an order that attendance by solicitor and/or counsel, or by video-link, would be sufficient compliance, or applied to set aside or appeal the order; the fact he did not helped to colour the picture that he was a gentleman who was deliberately simply being awkward to maximise inconvenience [22]. He then referred to some of the procedural history as supporting his conclusion that Mr Abou-Hamdan had deliberately flouted the court’s order. No application had been made for specific disclosure, which would have been done had Mr Abou-Hamdan been “remotely serious” about challenging the reasonableness of the service charges or challenging the technicalities of serving details and requests for payment [25]; Mr Abou-Hamdan was not serious about either the contents of his defence or indeed progressing the litigation to a conclusion in an efficient and proportionate manner [26]. He discontinued the counterclaim on the last working day before trial [27]. There was no good reason for his non-attendance [29]. It would not be right to allow the trial to continue with counsel challenging the reasonableness of, and the technicalities of giving notice of, the service charges: the way in which the case had been defended up until then led to only one conclusion, which is that Mr Abou-Hamdan was delaying the inevitable day when he was going to have to pay what was claimed or something perilously close to it [31]. It was inadequate to say when facing a default judgment that one wanted it set aside so as to put the claimant to proof; it was not consistent with the principles set out in the overriding objective; it was not an efficient use of court time; it was not fair on other litigants waiting to use the scarce resources of the trial centre and “as this defendant has conducted this case, it is no more than a determination to make the claimant jump through hoops in order to establish an amount that is due, the sum that the claimant already has in the form of the default judgment from Judge Mitchell” [32]. He therefore refused the application for relief from sanctions [36].[31]The result of that was that HHJ Saggerson made an Order, which I have already referred to as the Saggerson Order, dismissing the application and entering judgment for FHL in the sum of £35,857.95 (being the full amount of its claim and interest, with liberty to apply as to the arithmetic involved). He also ordered Mr Abou-Hamdan to pay the costs of the action on an indemnity basis, the basis for that being a contractual obligation in the lease to pay all costs incurred by the landlord in recovering arrears from the lessee, and of the counterclaim on the standard basis, with an interim payment on account of £25,000.

Construction of the Mitchell Order

[32]The appeals were all argued together and it is helpful to disentangle the various points that were raised by starting with the construction of the Mitchell Order, namely what paragraph 5 meant when it provided that:
“Unless the Defendant attends in person on the date fixed for commencement of the trial…”
Mr Gloag, who appeared for Mr Abou-Hamdan, submitted that DJ Langley and HHJ Saggerson were wrong to interpret this as requiring Mr Abou-Hamdan himself to be present in Court. It was sufficient compliance for Mr Abou-Hamdan to attend trial either himself or by counsel representing him.[33]Logically that seems to me to be the first question to address because if Mr Gloag were right about that, Mr Abou-Hamdan would not be in breach of paragraph 5 of the Mitchell Order, and the judgment entered against him would fall to be set aside without any further consideration.[34]Mr Gloag said that HHJ Mitchell cannot have literally meant that Mr Abou-Hamdan had to appear himself instead of by counsel. He referred me to the transcript of the hearing before HHJ Mitchell, with a view to showing that there was no consideration at that hearing of the question whether attendance by counsel would suffice. That does indeed I think emerge from a fair reading of the transcript. The relevant passages in the transcript are as follows: (1) On page 1 Mr Kinnison said that Mr Abou-Hamdan was a litigant in person and was overseas. HHJ Mitchell replies “Well, he says he is”, and then:
“It is the alibi of choice these days at this court. What I am going to do, I am not going to refuse the application, but I do not like the sound of this. It is a repetition that occurs quite substantially in this court where suddenly they have gone abroad or they are abroad and I propose to put something in the order saying that when it is relisted for trial no application will be entertained less than two months before the date of trial, or something of that sort, to make sure, because that is what is happening in a lot of cases.” (2) On page 5, after discussion of an unless order to ensure that Mr Abou-Hamdan paid the £155 fee for the application to adjourn, Mr Kinnison says: “Would it be appropriate to expand the unless order slightly to make it plain that if the defendant does not attend in person at the restored date or the adjourned date of the trial his defence and counterclaim will be struck out please.”
HHJ Mitchell says “Yes. Let us see.” There is then a discussion about the length of listing, in which HHJ Mitchell expresses surprise that it is really a five day case and on page 6 says:
“A five day case and he has absented himself? Mr Kinnison: Yes. HHJ Mitchell: He is very fortunate. We ought to have some form of unless order about the trial date. The trial will be re-fixed…I think if we put something that the case will be relisted for the parties and witnesses’ convenience with a time estimate for five days…and any further application to adjourn must be made well in advance of the hearing dates…” (3) On page 7 HHJ Mitchell refines this idea as follows: “Any application to adjourn the trial date will not be entertained by the court unless it is made at least eight weeks in advance of the date, unless the application is to deal with an extreme situation and is supported by evidence in the form of a witness statement or witness statements. I am just trying to head him off at the pass from doing the same thing again. Any assertion that the defendant is out of the jurisdiction will not result in an adjournment of the trial. I say “assertion”, because I am not sure how true it will be. He may be out of the jurisdiction. It is amazing how many of them are not.” (4) There is then a discussion where Mr Kinnison says he was concerned that they should not do something which prevented any applications whatsoever, and at page 8 there is this exchange: “HHJ Mitchell:…But the point I am getting at is that once the date of trial is fixed we expect him to be here, unless there really is a genuine problem, run over by a bus or whatever. Mr Kinnison: Would it be, therefore, appropriate, as I suggested earlier, to include something to the effect that if the defendant does not appear or attend at the first day of the trial– HHJ Mitchell: Yes. In the event that he does not attend the resumed trial, his defence and counterclaim will be struck out and judgment will be entered for the claimant.”
[35]Those are the relevant passages. It can be seen that HHJ Mitchell’s concern was that the trial should not be adjourned at the last moment a second time. That led him to make two orders, one, of his own initiative, requiring any further application for an adjournment, save in extreme circumstances, to be made well in advance of the re-fixed trial date – given effect to by paragraph 6 of his Order – and the other, at the prompting of Mr Kinnison, providing for judgment to be entered in the event Mr Abou-Hamdan did not attend the resumed trial – given effect to by paragraph 5. Nowhere in the transcript is there any discussion whether attendance by counsel would suffice – it was not raised either by Mr Kinnison or by HHJ Mitchell. It is true that when Mr Kinnison first suggested the unless order, he does say “attend in person” but this is not picked up by either of them, and there is no reference to the possibility that Mr Abou-Hamdan might appear by counsel, and when HHJ Mitchell accepted that an unless order should be made, he does not say “attend in person” but merely “attend the resumed trial”.[36]It should be borne in mind of course that on that date (20 April 2015) Mr Abou-Hamdan’s solicitors had come off the record so that he was a litigant in person. He had also served a witness statement in support of both his defence and counterclaim, so it would have been natural to expect him to wish to attend trial himself to give evidence. It is therefore perhaps understandable why neither Mr Kinnison nor HHJ Mitchell gave any thought to what the position would be if, come the trial date, Mr Abou-Hamdan had instructed counsel to appear for him, let alone what the position would be if he had not only instructed counsel to represent him at trial but had also decided not to attend himself to give evidence, proposing to give it either by video-link or not at all.[37]Mr Gloag says that there is nothing in the transcript which indicates that on 20 April HHJ Mitchell intended that FHL should in those circumstances be given the windfall benefit of obtaining judgment for its entire claim without having to prove it. Again I think that is a fair reading of the transcript – as I have said such a situation was simply not considered. On the basis of that, Mr Gloag submitted that paragraph 5 of the Mitchell Order should be interpreted as not actually requiring Mr Abou-Hamdan to be physically present in court himself, so long as he was duly represented by counsel.[38]I am unable to accept that submission. The principle, as Ms Meech submitted, is that one can look at a judgment to elucidate what an order means – an order is after all intended to implement what a judge has decided – but one cannot change the wording of an order by reference to the reasons given for the judgment. (I am not here referring to the slip rule, under which a judge can correct his or her order if it contains a mistake.) Ms Meech helpfully referred me to the decision of the Court of Appeal in Gordon v Gonda [1955] 1 WLR 885 where an order that unambiguously declared the defendant to be a trustee of certain property for the plaintiff could not be interpreted as doing something else by reference to the pleadings which showed that the action was a common form partnership action in which such an order would not normally be made (see in particular per Romer LJ at 897); and, by way of contrast, to the decision of the Privy Council in Sans Souci Ltd v VRL Services Ltd [2012] UKPC 6 where the Court of Appeal of Jamaica had remitted to arbitrators “the issue of damages”, but reference to the reasons given by them for allowing the appeal showed that they did not mean by that the issue of damages generally but only one particular matter that affected the level of damages. Lord Sumption, giving the advice of the Board, said at [16]:
“Of course, it does not follow from the fact that a judgment is admissible to construe an order, that it will necessarily be of much assistance. There is a world of difference between using a Court's reasons to interpret the language of its order, and using it to contradict that language.”
He then said that the latter point could be illustrated by the decision in Gordon v Gonda.[39]I accept therefore that the reasons expressed in a judgment can be used to interpret the language of an order but cannot be used to contradict it; and the same must be true where the Court does not deliver a formal judgment and the reasons for its order have to be collected from the interchange between judge and counsel.[40]In the present case the Mitchell Order required Mr Abou-Hamdan to attend in person. I take the view that as a matter of ordinary language that means attend himself and not by a representative, and that reference to the transcript cannot be permitted to contradict that.[41]One can contrast the position under CPR 39.3. This deals with “Failure to attend the trial”, and provides that the Court may proceed with a trial “in the absence of a party” and confers various powers “if no party attends the trial”, “if the claimant does not attend”, and “if the defendant does not attend.” For these purposes a party “attends” a trial if he or she is represented by solicitors or counsel who appear even if the party him or herself is not present at court: see Rouse v Freeman (Times, 8 Jan 2002) where Gross J held that CPR 39.3 had no application where the claimant failed to turn up to trial but was represented by solicitors and counsel. At [15] he said:
“as to the construction of CPR 39.3(1), giving the words their natural meaning, I cannot agree that a party “does not attend” when its legal representatives are present at the trial. To my mind, in that situation a party is present, as Mr Vickery submitted, by or through its legal representatives.”
I have no hesitation in agreeing that that is a correct view of CPR 39.3, and if paragraph 5 of the Mitchell Order had followed what HHJ Mitchell in fact said on page 8 of the transcript (“In the event that he does not attend the resumed trial”) it would no doubt have been appropriate to give it the same interpretation, and there would have been no difficulty. But the addition of the words “in person” which are in fact found in paragraph 5 seems to me to add something and make it clear that what is required for attendance is Mr Abou-Hamdan’s personal attendance at trial, and not attendance by or through his legal representatives.[42]Mr Gloag had one further submission under this part of the argument. He referred me to Stroud’s Judicial Dictionary (8th edn) where the entry for “In person” reads:
“In person. “In person or by proxy”: see proxy.”
He submitted that a proxy was a lawfully appointed agent, and that this entry supported the submission that a person could be said to be in person if they were acting by such an agent. That, with respect, seems to me a misreading of Stroud. I take the entry to be no more than a cross-reference to the entry for “proxy” where a judicial explanation of the phrase “in person or by proxy” can be found, namely that it “means either in person or by his lawfully constituted agent” (per A L Smith LJ in Re English, Scottish & Australian Bank [1893] 3 Ch 385 at 418). Far from supporting the suggestion that a person acting by an agent can be said to be acting in person, this seems to me to confirm the very opposite, as it treats them as alternatives.[43]In my judgment therefore the fact that Mr Abou-Hamdan was represented by counsel at trial was not a compliance with paragraph 5 of the Mitchell Order.[44]It is logically a separate question whether the Mitchell Order not only required Mr Abou-Hamdan to attend himself as opposed to by a representative, but also required him to be physically present in London as opposed to appearing by video-link. No separate argument was in fact addressed to me on this point. I can see that if the Mitchell Order had simply required Mr Abou-Hamdan to appear at trial, it could be said that he would be in compliance by appearing via a video-link. But I agree with DJ Langley that the natural meaning of “attend in person” required Mr Abou-Hamdan to be physically present at the court in London, not just appearing on a screen via a video-link from Dubai. Suppose there is a board meeting of a company and one of the directors is not physically present but joins by video-link. Such a director might well be said to have attended the meeting, but I think it would be inaccurate and misleading to say that he or she attended the meeting in person.[45]In my judgment therefore DJ Langley and HHJ Saggerson were each right to regard paragraph 5 of the Mitchell Order as requiring Mr Abou-Hamdan himself to appear at court in London, and that neither appearance via a video-link from Dubai, nor appearance by counsel in London was compliance with the Order.

The Saggerson Order

[46]I propose to deal next with the appeal from the Saggerson Order. As set out above this was an application for relief from sanctions on the basis – which I have held to be correct – that Mr Abou-Hamdan not appearing himself on 14 December 2015 meant that the sanction in paragraph 5 of the Mitchell order would otherwise take effect, and that his defence would be struck out and judgment entered for FHL on the claim.[47]HHJ Saggerson dealt with that, correctly, by reference to the principles laid down by the Court of Appeal in Denton v T H White Ltd [2014] EWCA Civ 906. As is well known, that sets out a structured approach to relief from sanctions, consisting of three stages: see the judgment of Lord Dyson MR and Vos LJ at [24]. The first stage is to identify the seriousness and significance of the failure to comply with the relevant order. Guidance on the first stage is given at [25]-[28] in a passage which I need not set out in full, but it is worth citing this from [26]:
“It was submitted on behalf of the Law Society and Bar Council that the test of triviality should be replaced by the test of immateriality and that an immaterial breach should be defined as one which “neither imperils future hearing dates nor otherwise disrupts the conduct of the litigation”
. Provided that this is understood as including the effect on litigation generally (and not only on the litigation in which the application is made), there are many circumstances in which materiality in this sense will be the most useful measure of whether a breach has been serious or significant. But it leaves out of account those breaches which are incapable of affecting the efficient progress of the litigation, although they are serious. The most obvious example of such a breach is a failure to pay court fees. We therefore prefer simply to say that, in evaluating a breach, judges should assess its seriousness and significance.” What appears from that is that one measure, and often the most useful, of how significant a breach is, is the effect it has on the conduct of the litigation. That is not, as the Court of Appeal makes clear, the only consideration in assessing the seriousness and significance of the breach, but it is certainly a useful starting point. That can be illustrated by the way they approached the three individual cases before them: in Denton, they described the breach as significant because it caused the trial date to be vacated and so disrupted the conduct of the litigation [54]; in Utilise by contrast they said that the breach was neither serious nor significant – it did not imperil any future hearing date or otherwise disrupt the conduct of that or other litigation [76]. The third case, Decadent Vapours, was one of late payment of court fees and so was an example of a case where disruption of the litigation was not relevant, and where, consistently with the passage I have cited, they said that the breach was serious, all failures to pay court fees being serious because it is important that litigants pay court fees on time, but near the bottom of the range of seriousness [62].[48]Another point that is noticeable from the Court of Appeal’s approach is that they are careful at the first stage to consider only the breach itself, and its seriousness or significance, and not the reasons for it, or the wider history of the proceedings (which come in at the second and third stage respectively). Indeed they say in terms at [27]:
“At the first stage, the court should concentrate on an assessment of the seriousness and significance of the very breach in respect of which relief from sanctions is sought.”
[49]How then should the question how serious or significant the breach was in this case have been approached? It seems to me that consistently with the Court of Appeal guidance, that should have been done by considering first what the effect of the non-compliance was on the conduct of this, or other, litigation: did it imperil the hearing date; did it otherwise disrupt the conduct of this litigation; did it have any impact on other litigation? If the answer to all those questions was No, that is likely to have been a useful indication that the breach was not serious or significant. It would not have been a complete answer, as some breaches are serious for other reasons, but there would then need to be some other reason to characterise the breach as serious or significant, such as the non-payment of court fees, which is always important.[50]On the first part of this, I have already anticipated my answer which is that I entirely agree with the submissions made by Ms Fairley which I have set out at paragraph 28 above. In circumstances where Mr Abou-Hamdan was represented by counsel and not going to give evidence, her submission that “we are in exactly the same position as we would be if he were here” seems to me to be in substance unanswerable. She was not asking for an adjournment and hence Mr Abou-Hamdan’s non-appearance did not imperil the trial date. The fact that he was not sitting at the back of the court was unlikely to have any significant impact on the conduct of the trial – it might have made it more difficult had she needed to take instructions, but given that she was proposing to put FHL to proof of their case, it seems unlikely that this would be a problem. There is nothing to suggest that Mr Abou-Hamdan could not be contacted if necessary, and in any event in the last resort if it did cause her difficulties, that would be to the prejudice of Mr Abou-Hamdan not FHL. There is nothing to suggest that whether Mr Abou-Hamdan was at the back of the court or not would have any effect on other litigation. For these purposes the contrast seems to me logically to be between a trial with Mr Abou-Hamdan present and a trial without him present, and not, as some of the remarks of HHJ Saggerson might suggest, a contrast between a default judgment and a trial. This is because one is trying to assess how significant the breach is, which is a question of comparing what the position is with what it would have been had there been no breach.[51]On this first aspect of the question therefore the position seems to me to be clear: it really made no difference to FHL, nor to the Court, nor to the conduct of the litigation, nor to the conduct of other litigation, whether Mr Abou-Hamdan were physically present during the trial or not.[52]Consistently with the guidance from the Court of Appeal, that is therefore likely to be a very useful indication that the breach was not serious or significant. But one should then go on to consider whether there is any reason for regarding it as serious or significant. In order to do this, it seems to me that one should consider the purpose for which the Order was made. Courts do not make orders for their own sake – they make them for a reason – and it is not really possible to identify how serious or significant a breach of an order is without considering the reason it was made, what it was designed to achieve.[53]In the present case, I do not think there is any doubt why paragraph 5 of the Mitchell Order was made. It clearly emerges from the transcript passages which I have referred to above. HHJ Mitchell, whether rightly or wrongly, had taken the view that the adjournment on 20 April 2015 had been largely caused by Mr Abou-Hamdan. He was undoubtedly concerned that a trial estimated at 5 days in which one trial date had been lost should in fact go ahead on whatever date was fixed for trial, and would not be the subject of any further attempt to put off the trial date.[54]I accept, as submitted by Ms Meech, that the Court does have power to require the attendance of a party at a hearing.

(c) which provides:

“(2) Except where these Rules provide otherwise, the court may– … (c) require a party or a party’s representative to attend the court.”
I accept Ms Meech’s submission that that enables the Court to say not only “I want either you or your representative to attend”, but also “I want you to attend”. Although there are no notes to that effect in the White Book, she referred me to Baron v Lovell [2000] PIQR P20, where Brooke LJ said at P27 that the case ought to have settled at the PTR, and that that was the reason why a court may make it obligatory for the client to attend a hearing accompanied by an advocate; and to Tarajan Overseas Ltd v Kaye [2001] EWCA Civ 1859 where Tuckey LJ said at [11] that there is no doubt that the court can order the attendance of a party and that one good reason why this may be appropriate is to facilitate settlement if the court takes the view that the case is one which the parties should strive to settle. So even in a case where a party is represented, the court has power to require the attendance of the party himself. … (c) require a party or a party’s representative to attend the court.”[55]If therefore HHJ Mitchell had been consciously exercising the power in CPR 3.1(2)(c) and had explained that that was what he was doing and why he regarded it as important for Mr Abou-Hamdan to attend in person, then it would have been possible to assess the seriousness and significance of his non-attendance against the background that the Court had formed the view that there was some good reason to require his personal attendance. But as the transcript shows that is not what HHJ Mitchell had in mind at all. What he had in mind was that one trial date had been lost and that he did not want the re-fixed trial to be at risk of being lost as well. As I have already referred to, when he announced his decision on the point, at page 8 of the transcript, he did not in fact refer to Mr Abou-Hamdan attending “in person”, and if paragraph 5 of the Order had followed what he said, there would in my view have been no breach of the Order at all.[56]Once it is apparent that the purpose of paragraph 5 of the Mitchell Order was to ensure that the trial was effective on the re-fixed date and not go off a second time, one can assess the seriousness of the breach in Mr Abou-Hamdan not appearing in person on 14 December 2015, but appearing by solicitors and counsel who were ready to proceed with the trial. It seems to me that the only reasonable conclusion was that the breach was not a serious or significant one. Given the interpretation of paragraph 5 that I have adopted, it was inevitably a breach, but it was one that neither imperilled the trial date, nor in any way militated against the purpose for which HHJ Mitchell made the order in the first place. I regard it in the circumstances as a purely technical breach with no practical consequences – or at any rate none adverse to FHL.[57]In those circumstances one has to look with great care at why HHJ Saggerson took the view that it was a serious and substantial breach. It was not for lack of submissions on the point from Ms Fairley. I have already set out her overall submission, and in his judgment at [8] HHJ Saggerson refers to another submission by Ms Fairley that Mr Abou-Hamdan’s attendance was not necessary, that it was unusual for a defendant to be ordered to attend at a trial, that it was invariably a matter for the litigant themselves as to whether they wish to attend, that there is no particular reason why the Court should require a litigant to attend, and that it should therefore be inferred that HHJ Mitchell was concentrating on the potential for a further request for an adjournment of the trial due to absence, and that that was the mischief at which he was aiming. HHJ Saggerson continues:
“Of course, if the submission is correct, namely that this is merely a trivial breach of the order, it is not necessary for the court to engage in any further inquiry as to the reasons underlying this breach, or to take a step back and look at the whole circumstances of the case.”
Ms Fairley did not have access to the transcript but it can be seen that her submission as to the mischief that it should be inferred HHJ Mitchell was aiming at was in fact entirely correct.[58]HHJ Saggerson does not seem however to have considered whether the inference that Ms Fairley invited him to draw was correct or not. Instead, he considered why Mr Abou-Hamdan had not attended. In doing so, he took a very unfavourable view of the alleged death threats that Mr Abou-Hamdan had referred to, and as I have set out above (paragraph 30) drew the conclusion that Mr Abou-Hamdan was just being as awkward as possible. I have not really understood why declining to come to London to sit behind counsel was being awkward. HHJ Saggerson also made a number of unfavourable remarks about the way Mr Abou-Hamdan had conducted the case, and went so far as to say that he was not remotely serious about challenging the service charges, and that he was only delaying the inevitable day when he was going to have to pay what was claimed or something perilously close to it. Since Mr Abou-Hamdan had, presumably at some expense, instructed solicitors and counsel to attend a trial for the very purpose of challenging the service charges, and it could not be said that by his non-attendance he was trying to delay matters any further (as counsel’s instructions were to proceed to trial), it is not obvious that those remarks were entirely justified. Nor do I think was it fair to say that the fact that he had not pressed for specific disclosure showed that he was not interested in his defence: it was FHL’s responsibility to give disclosure, and it was for FHL to prove their case, and Mr Abou-Hamdan may have taken the same view when acting in person as Ms Fairley appears to have done, that FHL might be in difficulty proving what they had spent if they did not produce the necessary documentation in support. Nor do I see how HHJ Saggerson could properly have concluded that Mr Abou-Hamdan would end up being liable for all or virtually all of the service charges: the opposition to the application for relief was not put on the basis that the claim was unanswerable on its merits.[59]HHJ Saggerson also said that Mr Abou-Hamdan was unwilling to give live evidence – again that may also not have been entirely fair in circumstances where he had gone to the length through his solicitors of applying to give evidence by video-link. Undoubtedly Mr Abou-Hamdan was unwilling to come to London to give that evidence, and as I have said HHJ Saggerson took a very dim view of the reasons he put forward for that, and may have been right that the way Mr Abou-Hamdan put forward those reasons left a lot to be desired.[60]These matters do not however seem to me to go the central question. What is significant to my mind is that none of what HHJ Saggerson says addresses the question of why paragraph 5 of the Mitchell Order was made in the first place and what the practical consequences were of Mr Abou-Hamdan appearing by counsel rather than coming over from the UAE to sit at the back of the court. What the Judge should have been focussing on was what difference it made to the conduct of the trial whether counsel proceeded to put FHL to proof of their service charges with or without Mr Abou-Hamdan sitting there. I cannot myself see that it would have made any difference in real terms to the efficiency or conduct of the trial.[61]In those circumstances I do not see that the breach – which, to repeat myself, consisted not of failing to attend trial, but of attending trial by counsel rather than in person – was one that merited the description of serious or significant. In truth it seems to me to have had no practical consequences for the conduct of the trial at all, save that if it were necessary for counsel to take instructions, it might be slightly less convenient to do so. Indeed, strictly speaking, all that Mr Abou-Hamdan had to do to comply with paragraph 5 of the Mitchell Order was to appear on the first day of the trial and then disappear again. That illustrates that the purpose of the Order was not to ensure the presence of Mr Abou-Hamdan personally at the back of the court throughout the trial but to ensure that the trial went ahead as planned.[62]It was in those circumstances that I allowed the appeal against the Saggerson Order. It is clear from Denton (as HHJ Saggerson himself recognised) that if the breach is not a serious or significant one, then the other considerations referred to in Denton are likely to be of little weight. Since I have found that HHJ Saggerson erred in finding that the breach was a serious and significant one, his decision must be set aside and it falls to me to make the decision again. On that basis, I have no hesitation in saying that the just and fair thing is for there to be a trial of the claim at which FHL can seek to prove its claim, and Mr Abou-Hamdan can seek by counsel to test whether the claim is made out.[63]That achieves what Mr Gloag said he wanted to achieve, which is the setting aside of the default judgment and the consequent opportunity for Mr Abou-Hamdan to have a trial of the claim. In the brief judgment I gave at the hearing I said I thought that made it strictly unnecessary to consider all the other issues which had been argued, and that I would give some brief views, without reaching final conclusions on them. Mr Gloag did not seek to dissuade me from that.

The Mitchell Order

[64]So far as the Mitchell Order is concerned, I have already said that I do not think that HHJ Mitchell was intending by his judgment to secure the personal attendance of Mr Abou-Hamdan at trial under CPR 3.1(2)(c), or had in mind any of the purposes for which an order under that rule can be made. It is clear from the authorities which I have referred to that the Court does have a power to require a party to attend a hearing, and that one of the reasons why such a power might usefully be exercised is to encourage the parties to settle the case, and to ensure that there is an individual with suitable authority in court to promote a settlement.[65]Ms Meech suggested some other possible reasons why a Court might take the view that the physical presence of a party at a hearing might be something which might be valuable and could properly be ordered. I am certainly not going to say anything which suggests that could not be done, but it is clear to me from the transcript (as I have already said) that that was not the consideration that HHJ Mitchell had in mind.[66]When one looks at the transcript, it is not without significance that the application came before the Court as an application effectively by consent for an adjournment, as I have set out above. HHJ Mitchell expressed some views as to how litigants in person sometimes abuse the system by asking for last minute adjournments without making formal applications or paying application fees and on excuses which subsequently turn out to be ill-founded. I have no difficulty with the proposition that HHJ Mitchell is likely to have a far better understanding and more experience of how litigation is conducted in his court than I can, or with the proposition that judges are entitled to make robust case management directions with a view to ensuring that trials are effective and trial dates not lost. Indeed Mr Gloag himself accepted that Mr Abou-Hamdan’s application to adjourn was a late one, that HHJ Mitchell was entitled to be sceptical, and that he was entitled to impose case management directions with a view to ensuring that the adjourned trial would be effective.[67]Nevertheless it is not clear to me that it was fair of HHJ Mitchell to impose an unless order, with the automatic consequence of the defence being struck out, on Mr Abou-Hamdan when, as pointed out by Mr Gloag, FHL was plainly in no position to proceed with the trial on 20 April either. Mr Kinnison never claimed the contrary. Indeed at page 10 of the transcript there is this exchange:
“HHJ Mitchell: … Your stance is “We do not really want to have the case adjourned, but given that he is not here and we have only just been instructed, it might be a sensible thing to do”
. Mr Kinnison: Yes. We have got to do it, because we have got to get trial bundles and things sorted out as well and it is not in the list in the court either.” HHJ Mitchell appears to have accepted that as he says a bit later: “…it may not be, let us put it this way, not entirely his fault, but it would have had to happen anyway, would it not really?” to which Mr Kinnison replied “Yes”.[68]Whether it was right for HHJ Mitchell to make an unless order against a litigant in person who was absent, and who had been told on the Friday evening by FHL’s solicitors that the adjournment was agreed, and had been provided with a draft order which (I infer) contained no hint of any intention to require him to attend the re-fixed trial in person, let alone under pain of losing his case, I rather doubt. It is the usual practice, for good reason, that if a party is going to seek an order against the other party, they should give adequate notice that that is what is going to be done. No doubt if one party is ready and willing to go ahead with a trial, and it has to be adjourned because of the other party’s absence, it may be appropriate to make an order designed to ensure that it does not happen a second time. But in the present case, Mr Abou-Hamdan had asked for an adjournment to which FHL had agreed for its own purposes, and Judge & Priestley had sent him a draft order providing for an entirely consensual re-fixing of the date, and he could I think be forgiven if he assumed that FHL were not going to ask for any further orders against him, or that he needed to instruct anyone to attend to protect his interests.[69]Moreover the CPR already contains in CPR 39.3(1)(c) power to strike out a defence and counterclaim against a defendant who does not attend a trial. I think that it would have been fairer to Mr Abou-Hamdan in the circumstances for the order to draw attention to the fact that if he did not attend the trial at the re-fixed hearing, the Court would consider exercising its powers under that rule and be likely to do so. That would still have met HHJ Mitchell’s concerns, and his desire to prevent Mr Abou-Hamdan seeking to jeopardise the re-fixed hearing (“head him off at the pass”), but it would have had three advantages over the Order actually made. First, it would have enabled the Court to consider whether in fact the power should be exercised in the light of all the circumstances as they actually were at the time – it is in general a salutary principle that discretions should not be exercised in advance precisely because it is difficult to foresee all the various possible circumstances that might exist at a future date; second, it would have preserved for Mr Abou-Hamdan the right given him by CPR 39.3(3) to apply for the judgment or order to be set aside (subject to the requirements of CPR 39.3(4) and (5)); third, on the actual facts of this case, the power would never have become exercisable because attendance by counsel would suffice, as explained earlier, and all the problems later caused would have been avoided.[70]Even if it was appropriate to make an unless order, there is a further point about the wording of the Order. What is clear from the transcript as I have said is that the concern of HHJ Mitchell was not the personal attendance of Mr Abou-Hamdan so much as the fact that there should not be any further adjournment and the trial, whenever fixed, should be effective. I have already set out the relevant passages in the transcript and pointed out that although Mr Kinnison, when he first raised the possibility of an unless order, used the words “attend in person”, HHJ Mitchell did not pick this up when he gave his decision at page 8 and instead simply said “if he does not attend the resumed trial”; and that neither he nor Mr Kinnison gave any consideration to what the position would be if he instructed counsel, or the necessity for him to be physically present if he did so.[71]In those circumstances I do not think it was in fact appropriate for paragraph 5 of the Mitchell Order to include the words “in person”. In giving permission to appeal, Mann J said that there were grounds for saying that the Mitchell Order went too far “and was indeed an order which no court should make”. In the light of the fuller argument which I heard, particularly the most helpful submissions of Ms Meech, I accept that there are circumstances where the Court can properly require a party to attend a hearing and that includes a trial as much as any other hearing. But that as I have said was not what was going on here.[72]I asked both counsel if they were able to tell me how the Order came to be drafted in the form which it did. The precise mechanics of the drafting are not 100% clear, but it does seem likely from the transcript, as Ms Meech suggested to me, that Mr Kinnison took his draft order, which had contained no unless order of sort, and added in paragraphs 5 and 6 in the light of the discussion he had with HHJ Mitchell, and sent it in to the Court for approval. Of course at that stage he would not have had a transcript and I am not suggesting that he deliberately slipped in words which he did not think were justified by the exchanges he had had. It must also be assumed that the final form of Order – which contains a footer showing that it was produced by a Richard Thorndike, who I infer is likely to have been a clerk at the County Court in Central London – will have been approved by HHJ Mitchell before being sealed. Nevertheless it can now be seen from the transcript that what he actually pronounced was that Mr Abou-Hamdan’s defence and counterclaim would be struck out “if he does not attend the resumed trial.”[73]In those circumstances, if it had been necessary, and subject to the objection that the time for appealing should not have been extended, I would have held that the wording of paragraph 5 was not what HHJ Mitchell actually thought necessary for the considerations which he had in mind, and I would have said that it was inappropriate to require, without expressed consideration of the reasons for it, the personal attendance in court of Mr Abou-Hamdan in circumstances where, as I said at the outset of this judgment, it is a right of a litigant to appear by solicitors and counsel rather than in person if they so desire. That is not to say that there could never be circumstances in which a party could be required to attend a trial, and I have already referred to some suggestions as to when that could be the case, but I am satisfied that that was not what HHJ Mitchell had in mind, and that the consequences that Mr Abou-Hamdan has suffered were not what he intended.[74]As I have said it is not however actually necessary to resolve that. Far less it is necessary to resolve the question whether the extension of time to appeal an Order made on 20 April 2015 but not appealed until January 2016 should be allowed to stand, and I do not propose to go into that question.

The Langley Order

[75]So far as the Langley Order is concerned, she gave two reasons for refusing to allow Mr Abou-Hamdan to give evidence by video-link, the first of which was that it would be in conflict with the Mitchell Order. As a matter of construction of the Order, I have already said that I agree with that.[76]One of the points argued before me was whether she should have varied the Mitchell Order and there was some discussion before me as to whether it would or would not be appropriate for a District Judge to vary an Order of a Circuit Judge. I understand the reticence which DJ Langley felt in doing something in conflict with an Order of HHJ Mitchell. Nevertheless the technical position I think is that she did have power to vary the Order. CPR 3.1(7) provides:
“A power of the court under these Rules to make an order includes a power to vary or revoke the order.”
CPR 2.4 provides that where the CPR provide for the “the court” to do any act, then except where an enactment, rule or practice direction provides otherwise, the act may be performed in the County Court by any judge of the county court; and “judge of the county court” includes a District Judge: see CPR 2.3(1) and s. 5(1)(b) County Courts Act 1984. It seems to me to follow that a District Judge has power to vary an Order that has been previously been made by the Court, whether the Order was made by another District Judge or by a Circuit Judge. This also seems to me to be what one would expect. Certainly in the case of case management directions, it is frequently the case that it is appropriate to revisit them during the course of proceedings, and it would be unfortunate if because a particular direction had been made by a Circuit Judge, it could not be varied thereafter by a District Judge, however appropriate the variation might be. Similarly in the High Court it is an everyday occurrence for directions to be given by a High Court Judge – for example setting a timetable for steps towards trial after dealing with an interlocutory application – and thereafter for the timetable to be varied by a Master, and it would be very inconvenient if that could not be done.[77]Whether such a variation should be made is another matter. Guidance on CPR 3.1(7) was given by the Court of Appeal in Tibbles v SIG plc [2012] EWCA Civ 518: see the conclusions drawn by Rix LJ from his survey of the jurisprudence at [39]. That includes the principle that it can be appropriate to exercise the power in CPR 3.1(7) where, among other things, there has been a material change of circumstances.[78]In the present case it seems to me that there had been a material change of circumstances. At the time of the Mitchell Order, Mr Abou-Hamdan was a litigant in person. If he did not appear at trial, it would be likely therefore that the hearing would be ineffective. Before DJ Langley however he was represented by counsel and it was known that he intended to be represented by counsel at trial. That to my mind entitled the Court to reconsider whether it was necessary for him to be physically present, or whether appearing by video-link would suffice. Had DJ Langley been asked to vary the Order therefore, she would in my judgment have been entitled to do so, notwithstanding that the Order had been made by a Circuit Judge. I accept however, as Ms Meech submitted, that no application to vary the order was in fact made.[79]In any event that was only one reason why DJ Langley refused the application; she also refused it on the merits. To overturn that would be to overturn a case management decision made in the exercise of her discretion, and there are well known limits on the appeal court’s powers to do that. Since it is not necessary for the purposes of this judgment to do so, I do not intend to lengthen this judgment by going into those questions.[80]I should make it clear that if as a result of my setting aside the Saggerson Order there is now to be a trial, I regard it as open to Mr Abou-Hamdan to make a further application, if so advised, to give evidence by video-link and that the fact that DJ Langley in December 2015 declined such an order should not preclude or in any way prejudge the question on any renewed application. On any such application it would be in Mr Abou-Hamdan’s interests for his evidence in support of his reasons why he did not wish to come to the UK to be rather better expressed than they have been so far. The evidence that he produced in relation to the death threats which he said he was facing – evidence that was only produced half an hour before the hearing before DJ Langley – does seem to have left quite a lot to be desired. It is not necessary for me to go into the details.

Conclusion

[81]Nevertheless, for the reasons I have given, I allowed the appeal against the Saggerson Order and set it aside. That therefore left the case as one in which a trial had not yet taken place; and left it to the parties to apply to the County Court sitting in Central London for directions for the issues to be tried, or – a suggestion which was not canvassed with counsel – since the counterclaim had been discontinued, to consider whether it would not be better for the matter to be heard by a tribunal which might have jurisdiction to deal with a dispute of this type.[82]I will formally hand down this judgment in the usual way, but there is no need for counsel to attend unless there are any points which they wish to raise.

Cited in 3 later judgments