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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Thakerar v Northwich Park Hospital NHS Trust [2002] EWCA Civ 617 (24 April 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/617.html Cite as: [2002] EWCA Civ 617

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(His Honour Judge Heppel QC and
Mr Justice Buckley)

		Royal Courts of Justice Strand London WC2 Wednesday, 24th April 2002

1. LORD JUSTICE WARD: I will ask Lord Justice Sedley to give the first judgment.
2. LORD JUSTICE SEDLEY:By permission of Lord Justice Potter, the appellant, Miss Thakerar, seeks to overset either or both of two decisions: one of Judge Heppel QC given on 28th March 2001 striking out her action and dismissing her claim; the second of Mr Justice Buckley given on 8th June 2001 (drawn up, for reasons to which I will come, on 13th July 2001) declining to restore the action.
3. The relevant provision is found in Part 39.3 of the Civil Procedure Rules, which provides:

"(1) The court may proceed with a trial in the absence of a party but -

(a)if no party attends the trial, it may strike out the whole of the proceedings;

(b)if the claimant does not attend, it may strike out his claim and any defence to counterclaim; and

(c)if a defendant does not attend, it may strike out his defence or counterclaim (or both).

(2) Where the court strikes out proceedings, or any part of them, under this rule, it may subsequently restore the proceedings, or that part.

(3) Where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside.

(4) An application under paragraph (2) or paragraph (3) must be supported by evidence.

(5) Where an application is made under paragraph (2) or (3) by a party who failed to attend the trial, the court may grant the application only if the applicant -

(a)acted promptly when he found out that the court had exercised its power to strike out or to enter judgment or make an order against him;

(b)had a good reason for not attending the trial; and

(c)has a reasonable prospect of success at the trial."

4. The appellant's claim was for damages, first, under the Law Reform and Fatal Accidents Acts for the negligent treatment of her mother, who died of heart disease in September 1995, and secondly, for psychiatric trauma caused by witnessing her mother's consequent death.
5. The writ was issued in September 1998. Thereafter, the appellant had funding difficulties which by mid-March 2001 had resulted in her acting in person. She had up to that point had the assistance of the Legal Services Commission. Her allegations of negligent treatment of her mother were, and are, supported by Professor Oakley, a consultant cardiologist. It is sufficient to quote two brief sentences of Professor Oakley's opinion:

"1.The standard of care received by Mrs Thakerar from Dr Handler and from Dr Greenbaum fell below that which is expected from cardiologists of average competence.

2.On the balance of probability her life would have been extended if she had had the benefit of percutaneous balloon angioplasty in addition to medical therapy."

6. The appellant's case on psychiatric trauma is said by the defendants to be effectively foreclosed by the joint view of the psychiatric witnesses that her symptoms were not caused by witnessing her mother's death. This argument is founded on a joint statement of the two psychiatrists containing these two sentences:

"We agree that her psychiatric condition was a Prolonged Adjustment Disorder ..."; and

"We do not think that witnessing Mrs Thakerar's collapse on the 13th September 1995 did, in itself, cause the psychiatric disorder that Ms Thakerar subsequently developed."

7. It is, however, the case that the argument has not been heard out (for reasons that will become apparent) by any court below, and I will come in a moment to its effect on the disposal of this appeal. It is relevant to note that the defendants seek to rely (and are plainly able to do so) on the decision of this Court in Vernon v Bosley (No 1) [1997] 1 All ER 577, from which it is sufficient to quote this sentence of the headnote: "The legal (as opposed to the medical) test determining recoverability was whether the plaintiff had suffered mental injury caused by the negligence of the defendant and not whether he had suffered post-traumatic stress disorder rather than pathological grief disorder."
8. In November 2000 the trial of the action was fixed to start on 27th March 2001, four days being allocated to it. On 12th March the appellant's solicitors gave notice that public funding had been withdrawn and that they would be ceasing to act. On 21st March the appellant applied in person to Mr Justice Bell to vacate the trial date because of her ill health. A medical certificate was produced in support. It read:

"This is to certify that Miss Palvi N Thakerar has been suffering from severe stress and abdominal pain.

Investigations are being conducted which should be completed by the end of September, early October 2001. ...

I am advised that there is a court hearing on 27th March 2001 and am of the firm opinion that Miss Thakerar is not capable in her present health condition to conduct the court hearing. This will add further stress and will be detrimental to her present health.

I would request that the court hearing of 27th March 2001 be postponed until after mid October 2001."

9. It was signed by Dr Dawood, her general practitioner. Mr Justice Bell refused an adjournment and no appeal was sought to be brought against his decision.
10. However, two days later, on 23rd March, the appellant was admitted to hospital with chest pains. She was still there on 27th March when the case came on for trial before His Honour Judge Heppel QC. At that stage, on the first day of the trial, the court had from the appellant the medical certificate from which I have already quoted and her written application for an adjournment supported by a letter from the hospital. The application sought an adjournment on health grounds until October, much as indicated in Dr Dawood's letter. The letter from the hospital was dated 24th March 2001 and read:

"The above lady has been admitted to Ealing Hospital tonight with chest pain. She will be in the hospital at least until Monday pm."

11. Monday would have been 26th March. On 27th March enquiries made at or by the court established that the appellant had that day been discharged. Judge Heppel accordingly adjourned to the following day so that the situation could be clarified. On the following day the judge had before him a further letter from Dr Dawood, which read:

"Miss Palvi Thakerar ... was admitted to Ealing Hospital from 24/3/01 to 27/3/01 for chest pain and had various investigations to establish cardiac cause of her chest pain and she is still under the care of Ealing Hospital. She needs to attend for further investigations."

12. Judge Heppel described the totality of the medical evidence as "extremely scant". He went on to consider the nature of the action, and continued:

"There are five witnesses, all professional people, to the facts in this case, whom the Defendants would wish to call. There is an expert cardiologist and an expert psychiatrist, whom the Defendants would wish to call. These witnesses have been on standby for some time now, at considerable professional inconvenience and of course consequential expense. Plainly, of course the Second Defendants have to appear by solicitors and counsel.

Looking at the history of this action, particularly the history of this action over the last few days, I get the strong impression that this Claimant has, so to speak, cold feet about prosecuting the claim. It seems to me that she should have been in a position to do more than she has in fact done, either to prosecute the claim or to put forward cogent medical evidence as to why she is unfit to prosecute it at this stage, and in support of any application further to adjourn.

The court has to have in mind the overriding objective in this sort of situation to deal with cases justly; to save expense; to deal with cases in ways that are proportionate to the amount of money involved; the importance of the case; the financial position of each party; ensuring that the case is dealt with expeditiously and fairly; and allotting to it the appropriate share of the court's resources. It seems to me that all those factors in Part 1 of the Civil Procedure Rules, which I have mentioned, come into play in this case.

The matter is not being dealt with expeditiously. The Defendants are put to considerable financial prejudice because, by all accounts, Miss Thakerar is a lady of modest means and is unlikely to be able to meet any order for costs made against her. Professional people, so far as the Defendants are concerned, are being very considerably inconvenienced. Much as one sympathises with the position of the Claimant, who, on one view, is now unwell - perhaps psychiatrically - and has of course suffered the bereavement of her mother, it has to be said that on the face of it - although the court does not pre-judge the matter - the Claimant may have difficulty in establishing that she has a cause of action in respect of any psychiatric illness which she has suffered.

So far as the claim in respect of the death of her mother is concerned, under the Law Reform Act, it may well be - and again one does not pre-judge it - that this is a claim in all the circumstances which would attract very little by way of damages.

It seems to me, sitting back from this matter, as I must, that the time has come to take some tough decisions in this matter because the court takes the view that the Claimant is not properly at this stage pursuing this action. I therefore propose to accede to the application by Mr Holl-Allen to strike out these proceedings and to dismiss this claim, comforted in the knowledge that if she wishes to have this matter restored then, by assembling such evidence as may be available to her in respect of her medical condition, the Claimant herself can apply for this action to be restored and to proceed to trial. The Judge hearing any such application will be in a better position than I am to take stock of the Claimant and her prospects of actually prosecuting this claim before the court.

Accordingly, for the reasons which I have endeavoured to give, this claim will be dismissed."

13. Pausing there, it seems to me that this is a proper sequence of reasoning. It would be otherwise if a judge, faced with this kind of situation, struck out a case simply because it was always possible to restore it. To do so would throw an arbitrary onus on to the party adversely affected. But while Judge Heppel's process of reasoning followed a proper sequence, was his conclusion a tenable one in the situation confronting him?
14. In well drawn grounds the appellant puts her case in this way. She sets out in brief the history that I have now recounted of material placed before the court, and then says:

"7. Notwithstanding the above information concerning the Applicant's angina condition and the emergency doctor's instructions His Honour Judge Heppel QC at the resumed hearing on 28th March 2001 elected to proceed with the trial and in the Applicant's absence found Judgment for the Defendants. While the doctor's certificate was not available for Judge Heppel, Judge Buckley should have given it weight at a later hearing, and erred in not doing so.

8. The Applicant contends that in making these decisions His Honour Judge Heppel QC erred in that it was (1) inappropriate in the circumstances to order that the trial be adjourned for just one day allowing the Applicant no time for recovery following her discharge from hospital and (2) that it was wrong to proceed with the trial in the Applicant's absence in the light of the evidence of the Applicant's condition and the expert advice of the emergency doctor."

15. The grounds go on to contend that the appellant had been denied a fair trial in breach of Article 6 of the European Convention on Human Rights.
16. It is apparent from those grounds that I have read that there was an attempt to relate back to the hearing before Judge Heppel some material, to which I shall come, which appeared for the first time before Mr Justice Buckley. This is one of the reasons why in my view the criticism of Judge Heppel fails. I can accept that in many cases adjourning overnight would be patently insufficient, but in this case Judge Heppel knew on 27th March not only that the appellant had shortly before applied without success to Mr Justice Bell to stand the trial out, but that she had been, or was about to be, discharged that day from hospital. In those circumstances there was no obvious reason why she might not at least be in a position next day to explain why a long adjournment was required.
17. The next day, however, the evidential situation was as I have described, and it seems to me that at that stage Judge Heppel was entitled to come to the view that he did: that this was not an appropriate case to adjourn. He rightly looked at the other interests involved and came to a decision which I think was consistent with the overriding objective on the evidence before him.
18. The appellant, rather than seek permission to appeal immediately, appropriately applied to Mr Justice Buckley to restore her claim. She was still of course acting under Part 39.3 of the Civil Procedure Rules. Mr Justice Buckley now had before him a certificate of Dr Ravikumar, who had examined the appellant on the evening of 27th March, but whose certificate dated 4th April was not before Judge Heppel. The certificate, which was on a printed form, read:

"This is to certify that in my opinion Palvi Thakerar of 117 Blenheim Road, Harrow, was suffering from chest pain and was unable to attend court on 28/3/01."

19. Mr Justice Buckley also had before him Dr Ravikumar's written note dated 23th May 2001, which read:

"I saw Palvi Thakerar of 117 Blenheim Road, Harrow on 27th March 2001 as an emergency patient at about 23.21pm. She was suffering with the chest pain and was unwell. I treated her for her chest pain with GTN spray and she was advised to rest and call 999 if in pain.

In my opinion she was not fit to attend court on 28th March 2001."

20. Mr Justice Buckley was minded to dismiss the application on two separate but cumulative grounds. Under subparagraph (5)(b) of Part 39.3 he considered that the medical evidence of inability to attend on 28th March was still "somewhat scant". Under paragraph (5)(c) he concluded that there was in any event not a real prospect that the appellant would succeed were the case to go to trial. On an application to restore, of course, the appellant had to cross both of these hurdles; though it is fair to say that subparagraph (c) has a mirror image in the opportunity which the other party has under Part 24.2 of the Civil Procedure Rules to apply for summary judgment on the ground that a claim, or part of a claim, has no real chance of success -something that had not been attempted here.
21. Mr Justice Buckley said on 8th June:

"Judge Heppel in my view rightly identified the claims as (1) difficult and (2) modest in any event in quantum. In seeking to ascertain whether there was any reasonable prospect of these claims succeeding - and in particular the position with Professor Oakley, the Claimant's expert - I was at some pains to see whether the Claimant had or could obtain any sufficient evidence to show that she continued to have the support of Professor Oakley, and, perhaps more to the point, that Professor Oakley continued to accept instructions to attend the trial. I do not think it is entirely Miss Thakerar's fault that she did not have that evidence this morning, and I can understand, as a litigant in person, that she came along this morning thinking the only issue was her medical condition. And that point - I do not suggest anything improper on Mr Holl-Allen's part at all, he has been extremely helpful to me and I am very grateful - that was a point that he took by way of submission, and, as far as I know, there is no particular reason to fix Miss Thakerar with notice that that was a point that was going to arise. As I say, I can understand that she did not anticipate it.

My final thought on this matter is that despite reaching much the same view as His Honour Judge Heppel the fact is that I cannot wholly ignore the two documents from Dr Ravikumar, which on the face of them do say that Miss Thakerar was not fit to attend court on 28th. I do accept the submission from Mr Holl-Allen that the position is unsatisfactory. He was the emergency doctor, there is not apparently support from either the hospital or her ordinary GP. As I say, I do not think I can simply brush aside the two medical certificates from Dr Ravikumar.

Equally, although I have expressed at least strong suspicion that Professor Oakley may not have been organised to attend the trial on 28th and may well not be prepared to attend a trial in the future, that is something that at the moment is no more than strong suspicion on my part. It is a drastic measure to strike out a claim. I intend no implied criticism of Judge Heppel. On the material before him I, for what it is worth, would have taken the same course. There is a little more material before me now but as it stands it is still not satisfactory."

22. So Mr Justice Buckley took what, if I may say so, was the fair-minded course of dismissing the application but directing that his order be not drawn up until further order, giving the appellant till 29th June (that is, three weeks) to produce further evidence. About this he was specific. First, there was to be evidence from the GP or the hospital giving the medical reasons why the appellant could not attend on 28th March. Secondly, there was to be evidence from Professor Oakley that she was still willing to attend and give evidence in support of Miss Thakerar's case.
23. On that occasion Miss Thakerar was in person. We are told that some three hours were spent in deciding her application. When the case came back before Mr Justice Buckley, as it finally did on 13th July, it then took another three hours before him. Miss Thakerar was again in person, but she had the help pro bono of Mr Laichena of Ealing Solicitors. The judge in his judgment again ran through the history of the case. He concluded that there was "considerable force" in the defendants' contention that the psychiatric evidence would not support the personal injury claim. Although he went on to say, "I am not called upon to adjudicate upon that submission", he might have done so, though (for reasons to which I will come) not in order to partition any order for restoration that he might have made.
24. But whatever view the judge might have come to on the personal injury claim for psychiatric trauma, there remained the Law Reform and Fatal Accidents Acts claims. These the judge described as "modest". So they are by comparison with many of the claims we see in these courts, but I confess that, for my part, to hold that fact again a claimant goes very much against the grain. People come to court for justice as well as for money, and the courts are primarily here, it is worth remembering, to dispense the former, not the latter. While the overriding objective calls on courts to maintain a sensible ratio of cost to benefit, I am not inclined to accept that this allows the courts, other things being equal, to treat a modest claim less favourably than a large claim when it comes to such matters as striking out or restoration. To this extent it seems to me that the court, as a public authority, needs to stay on the right side of Article 6 of the Convention on Human Rights.
25. Before Mr Justice Buckley there was now a further letter from the GP, Dr Dawood. It was dated 25th June 2001 and read:

"I confirm that Miss Thakerar was recently admitted to Ealing Hospital on 23 March until 27 March 2001 following an episode of chest pain. She has various investigations in the hospital to exclude the possibility of heart attack or angina.

No conclusion was reached and she was discharged from Ealing Hospital on 27 March 2001 so it was not possible for her to attend Court on that day.

On 27 March 2001 she had further chest pains and was seen by one of our emergency doctors who treated her with GTN spray because of suspicion of angina, and recommended her to rest for a couple of days.

Because her chest pains are not explained as yet she has another appointment at Ealing Hospital in September 2001 for further cardiac investigation. She was given aspirin 75mg and atenolol 25mg for her heart condition and GTN spray to use when required. At the moment she has no pain and she is under control, but no definite diagnosis has been reached and it is unlikely that a further diagnosis will be established until her cardiac investigations are completed at Ealing Hospital."

26. About it the judge said:

"The letter produced from Dr Dawood does say something of the general medical history concerning the chest pains that Miss Thakerar has suffered. She did attend Ealing Hospital, and he confirms that she was discharged on 27th, and he said it was not possible for her to attend court on that day. But the day we are concerned with is the day after, and his Honour Judge Heppel was fully aware of the hospital attendance. Dr Dawood goes on that, `She suffered further chest pains on 27th, was seen by one of our emergency doctors; was treated and recommended to rest for a couple of days.' That is all that Dr Dawood says. In one sense of course it can be said in Miss Thakerar's favour that if she is recommended to rest for a couple of days that should be a good reason within Part 39 for not attending court. On the other hand, in the context of this case and the background that His Honour Judge Heppel described and that I have referred to, that is not so clear because what was specifically and expressly asked for was the doctor's opinion as to whether she was fit to attend court on the day of her trial, 28th. That medical evidence, it has to be said, is in that context not entirely satisfactory."

27. As to Professor Oakley, the appellant had on 28th June issued an application to substitute a new expert for her on the ground that Professor Oakley was unwilling to attend court if Miss Thakerar was not legally represented. But at the hearing Miss Thakerar was able to produce a letter from Professor Oakley dated the previous day, putting the same point the other way round:

"I confirm that I am willing to continue to be Miss Thakerar's expert provided that my instructions come from a solicitor."

28. The judge said:

"... that does not expressly comply with the terms of my last Order or direction, in that it does not expressly confirm that Professor Oakley continues to support Miss Thakerar's case. However, even if I am prepared to read into that one line `I am willing to continue to be her expert' that the Professor is prepared to support the case, at least to some extent, it still raises the question of whether solicitors will instruct Professor Oakley."

29. The judge went on to say that the case was also unsatisfactory in that the appellant was now without lawyers - because, the judge was prepared to infer, of adverse advice - and in that there were now unpaid interlocutory costs. Unfortunately, in my view, the judge had also had put before him some supposedly prejudicial correspondence between the two cardiologists which we have been shown, which in my view have no proper place in the proceedings and which I hope will not be referred to again.
30. Mr Justice Buckley continued:

"The present position so far as the psychiatric experts are concerned is as I have indicated. So far as the cardiologists are concerned, I have the one line from Professor Oakley and the fact that there is evidence that there is the sum I have mentioned by way of loan available to Miss Thakerar. [This was a sum of money which her brother-in-law had been prepared to put up in order to assure Professor Oakley's fees.] I have no other evidence. I have no indication of what arrangements, if any, have been made with Professor Oakley. I think the position must be that none have been put in place and that the matter stands in abeyance unless or until solicitors are instructed. The reason why an expert requires solicitors to be instructed is obvious and does not need me to go into it. Without that or - to put it crudely - `cash up front' an expert is wholly exposed."

31. Then, after a further passage, Mr Justice Buckley continued:

"In those circumstances the prospect of this case being pursued in any proportionate and sensible manner must be extremely remote. This is a matter to which His Honour Judge Heppel adverted in his judgment. He pointed out the cost of this matter dragging on to the Defendants and he bore in mind the very modest nature, in his view, of the claim or - at least as perhaps I would put it - that part of the claim that has any real prospect of success.

It is in those circumstances that I am called upon to decide firstly whether Miss Thakerar has satisfied the provisions of Part 39 and, even if arguably she has, whether I should exercise my discretion and set this judgment aside.

The view I have come to, I am afraid, is that Miss Thakerar has not satisfied the provisions of Part 39. I retain some doubt in view of the undoubted fact that there is a medical condition. I readily admit to some doubts as to 39(5)(b), namely, a good reason for not attending before his Honour Judge Heppel, but I am not satisfied that in all the circumstances I have described there would in any event be a reasonable prospect of success at trial. Even if I am wrong and even if Miss Thakerar should be regarded as having satisfied sub-paragraph Part 39(5)(c) or even (5)(b) and (c), that does no more than bring the discretion of the court into play, as Mr Holl-Allen in my view has rightly submitted.

In all the circumstances that I have endeavoured to describe and those set out in His Honour Judge Heppel's judgment of 28th March I think it would be wholly inappropriate and disproportionate to set aside this judgment and reopen this matter at this stage."

32. To begin at the end, given that Miss Thakerar was conceded to have satisfied paragraph (5)(a) of Part 39.3 (that is to say, she had acted promptly), I am not inclined to accept that, even if she were to have satisfied subparagraphs (b) and (c) as well, "that does no more than bring the discretion of the court into play."To me, elementary fairness suggests that a party who, when struck out for non-attendance, acts promptly and shows good reason for non-attendance and a reasonable chance of eventual success should have their case restored unless some special further ground exists for doing otherwise. I see no room in the word "may" in paragraph (5) for a general discretion capable of rendering the application of clear and simple principles hazardous and uncertain. On the other hand, the judge had expressed doubts about the psychiatric injury claim, and it may well be that in his final remarks which I have quoted he was saying that in any event the viable part of the claim was not substantial enough to warrant its restoration. If so, I would respectfully not agree. Mr Kemp, who has represented Miss Thakerar today, puts the Law Reform and Fatal Accidents Acts claims at a figure approaching £60,000. That may be an extremely sanguine valuation, but, even for a much smaller claim, I would be hesitant to shut out a claimant on a cost-benefit calculation alone. Nor do I accept the late submission made by Mr Holl-Allen, for the defendants, that the existence of unsatisfied interlocutory costs orders is a further discretionary reason to refuse restoration. It is capable in some cases of playing a role, but essentially costs can and should be dealt with on their own terms in a case like the present, as they have been.
33. Discretion was in any event a fall-back from Mr Justice Buckley's principal finding that, while he was in some doubt about the medical reason for non-attendance, he was not satisfied that there was a reasonable prospect of success at an eventual trial. His reason for the latter view was not that there was any dearth of expert evidence to support the appellant's claim that her mother had suffered from professional neglect: it was simply that, in the absence of legal representation, Professor Oakley (and for my part I would not criticise her for this because I do not think it was necessarily a question of being sure that she was going to be paid) was unwilling to attend court. While an unrepresented party inevitably has a manifest initial disadvantage in litigation, a firm and fair tribunal will ordinarily ensure that there is substantively at trial no inequality of arms. David not infrequently slays Goliath in our courts. By contrast, to appear to be penalising or handicapping a party by refusing to let her action go to trial because she is unrepresented is in my judgment something the court should strive to avoid. I would respectfully differ from Mr Justice Buckley on this aspect of the case - especially, but not only, because the appellant is now again represented by solicitors.
34. As to the medical evidence, Mr Justice Buckley found it borderline. But for my part I would think that doctors are not pleaders, and it is not right to read their notes with too nice a scrutiny. A patient who has just been advised to rest for a couple of days after four days in hospital with chest pains can sensibly be said not to be in a proper state of health to appear in court, at least as a litigant in person in an action concerning her own psychiatric state and her mother's death. I for my part would accept Mr Kemp's submission that Dr Dawood's full and clear letter of 25th June 2001 sufficiently answered question (b) of the rule in the claimant's favour.
35. The upshot, in my judgment, is that neither the judge's fall-back reason nor his ground (c) reason for refusing to reinstate is satisfactory. On ground (b) he reached no conclusion, but for my part I would hold that the appellant had put before him enough medical evidence satisfactorily to explain her absence at the trial before Judge Heppel. Even if I accepted that a straightforward cost-benefit calculation can be used in any but the clearest possible case in order to refuse to restore a claim which has passed the three hurdles in paragraph (5) of Part 39.3, I would not accept Mr Holl-Allen's submission that the Law Reform and Fatal Accident Acts claims in the present case are so small on any view that they should not be restored. Their value is part of the dispute between the parties. On those claims the appellant had Professor Oakley's evidence and still has a reasonable prospect of success. It was not disputed that she had acted expeditiously to seek restoration. For the reasons I have given, there was in this situation in my judgment no material permitting Mr Justice Buckley, in the exercise of a residual discretion, to refuse to reinstate her claim. I reject the submission that we should test the merits of the claim by the Legal Services Commission's inferred attitude to it. The court's remit and the Commission's remit are not the same.
36. I would therefore for my part allow this appeal. What, however, about the possibility of restoring the Law Reform and Fatal Accidents Acts elements of the claim but, in the light of 39.3(5)(c) of the Civil Procedure Rules, not restoring the claim for damages for psychiatric trauma? For my part I do not think that the language or the purpose of Part 39.3 runs to this kind of selective striking out or selective restoration. The rule is captioned "Failure to attend the trial", and its mechanism is to deal, and to deal only, with entire pleadings: a claim; a defence; a counterclaim; a defence to counterclaim. Where it is sought to say that some part of a pleading is unsustainable or has no reasonable prospect of success, Part 24 exists to enable this to be done. It might have been used in this case, but I can see intelligible reasons why it was not. This is the kind of submission that can perfectly easily await trial in order to be made and will not inflate costs since the trial is going ahead on other grounds. So I make no criticism in that regard; but I do not think that Mr Holl-Allen's submission that we should restore only in part is one to which this court can accede. Accordingly, I would simply order, in allowing the appeal, that the claim be restored. If my Lords agree thus far, I would also order that the costs incurred before Judge Heppel be costs in the case.
37. LORD JUSTICE DYSON: I agree.
38. LORD JUSTICE WARD: I also agree.
Order: appeal allowed with costs and claim restored; costs before Judge Heppel to be costs in the case; claimant to have costs of hearing before Buckley J; matter to be restored for case management conference.