Say v Howard Gurpinar LLP

To restore a claim struck out for non-attendance at trial under rule 39.3, the applicant must satisfy three cumulative requirements: promptness, a good reason for failing to attend, and reasonable prospects of success. Only if all three are established does the court consider whether restoration accords with the overall interests of justice. Physical ability to attend court is distinct from fitness to conduct a lengthy trial as a litigant in person. The latter may be relevant to the interests-of-justice discretion and to case management, but it does not itself establish a good reason for non-attendance. A claim lacks reasonable prospects where its alleged losses are not shown to have been caused by the alleged negligence or where the underlying claims would themselves have been realistically unsuccessful.

The claimant brought negligence proceedings against the defendant solicitors concerning their conduct of disputes relating to a commercial lease. The claim had been struck out under rule 39.3 after the claimant failed to attend the first hearing day of a multi-day trial. He applied promptly for restoration, relying on acute anxiety, physical illness and mental-health difficulties. The court considered whether he had a good reason for non-attendance, whether he was fit to conduct the litigation, and whether his four claims had reasonable prospects of success.

1. The application to restore the claim was refused. The court had power to restore the claim only if the claimant satisfied all three requirements under rule 39.3: promptness, a good reason for failing to attend the trial, and reasonable prospects of success. If those requirements were met, the court would then consider the overall interests of justice.
2. The promptness requirement was satisfied because the application had been issued shortly after the claimant learned of the strike-out.
3. The claimant had not shown a good reason for failing to attend court. The relevant obligation was physical attendance on the first day of trial. His stress, anxiety and chest infection were accepted, but the evidence did not establish that he was physically unable to attend.
4. The court nevertheless found that the claimant would not have been fit to conduct a six- or seven-day trial as a litigant in person. That separate consideration did not cure his failure to satisfy the second requirement. It indicated that, even if he had attended, the claim would probably have required a stay unless he obtained legal representation.
5. The claimant also failed to establish reasonable prospects of success. The lease-renewal claim was not shown to have caused loss because the landlord was determined to redevelop the property and the claimant had pursued and compromised renewal proceedings himself. Claims concerning the failure to sue other solicitors faced the absence of a viable underlying claim, lack of loss, or lack of evidence of instructions. The rent-review complaint lacked evidence that the defendant’s inactivity caused any prejudice, since the arbitration continued after the defendant’s retainer ended.
6. As the cumulative requirements were not met, the court had no power to restore the claim. In any event, fixing a further trial would have been pointless while the claimant remained unable realistically to conduct the litigation.