Thakerar v Northwich Park Hospital NHS Trust

Under Part 39.3 of the Civil Procedure Rules, restoration after a claimant’s non-attendance requires prompt action, a good reason for absence, and a reasonable prospect of success. Where those conditions are met, restoration should ordinarily follow unless a special further ground justifies refusal. A general residual discretion cannot make the application of those criteria uncertain. A modest claim should not be refused restoration merely because a cost-benefit assessment favours the defendant. Part 39.3 operates on an entire claim or pleading; it does not permit selective restoration of viable parts while excluding others. Issues concerning the merits of part of a claim should ordinarily be dealt with under Part 24 or at trial.

The claimant brought proceedings concerning the alleged negligent treatment of her mother, who died in September 1995, and a claim for psychiatric injury said to have resulted from witnessing her mother’s death. The trial was fixed for 27 March 2001. After the claimant’s solicitors ceased to act and the claimant was admitted to hospital with chest pains, the trial proceeded in her absence after a short adjournment.

His Honour Judge Heppel QC struck out the proceedings and dismissed the claim. Mr Justice Buckley refused restoration under Part 39.3, principally because he was not satisfied that there was a reasonable prospect of success, and alternatively considered restoration disproportionate. The claimant appealed, raising the adequacy of her medical explanation, her prospects of success while unrepresented, and whether only part of the claim could be restored.

1. Appeal allowed. The claimant had acted promptly. The later medical evidence sufficiently established a good reason for her absence. The cardiologist’s evidence gave the claims concerning her mother’s treatment a reasonable prospect of success.
2. Part 39.3(5) sets out clear cumulative conditions. Once promptness, a good reason for non-attendance and a reasonable prospect of success are established, the claim should ordinarily be restored unless some special further ground exists. The word “may” does not confer a general discretion capable of defeating those criteria in an uncertain or arbitrary way.
3. A court should be cautious about refusing a claim because the litigant is unrepresented. Although representation may create practical difficulties, the court should ordinarily ensure substantive equality at trial. Nor should a modest claim be treated less favourably than a large claim merely because a cost-benefit calculation is unattractive. Interlocutory costs should generally be dealt with separately.
4. Medical notes should not be scrutinised as though they were pleadings. In context, advice to rest after hospitalisation and continuing chest pains could establish that the claimant was not fit to attend court as a litigant in person.
5. Part 39.3 concerns the claim or other entire pleading. It does not authorise selective restoration of the Law Reform and Fatal Accidents Acts claims while leaving the psychiatric-injury claim struck out. Any challenge that part of a claim has no reasonable prospect of success may be pursued under Part 24 or considered at trial.

The claim was restored. Costs incurred before Judge Heppel were costs in the case; the claimant received the costs of the hearing before Mr Justice Buckley. The matter was restored for a case management conference.

• Court of Appeal (Civil Division) allowed the appeal, restored the claim and made consequential costs and case-management orders.
• High Court, Queen’s Bench Division: Mr Justice Buckley refused to restore the claim under Part 39.3 on 8 June 2001, with the order drawn up on 13 July 2001.
• High Court, Queen’s Bench Division: His Honour Judge Heppel QC struck out the proceedings and dismissed the claim on 28 March 2001 after the claimant failed to attend the trial.