Pawel Szwed v Aviva Insurance Ltd [2026] EWHC 1425 (KB)

[2026] EWHC 1425 (KB)Case No KA-2023-000166and KA-2024-000012IN THE HIGH COURT OF JUSTICEHIGH COURT APPEALS CENTREKING’S BENCH DIVISIONON APPEAL FROM CENTRAL LONDONCOUNTY COURTCase No 023LR600ORDERS OF RECORDER GLANCY DATED 28 JULY 2023AND HHJ HELLMAN DATED 22 DECEMBER 2023Venue Royal Courts of Justice,Strand,London,WC2A 2LLDate 11/06/2026
Before
MRS JUSTICE HILL DBE
Between
PAWEL SZWEDAppellantAVIVA INSURANCE LTDRespondent
The Appellant appeared in person and was not legally represented for in personChristopher Walker (instructed by Clyde & Co) for RespondentHearing Hearing date: 3 June 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on Thursday 11 June 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Introduction

[1]The Appellant is the Claimant in a personal injury claim in the Central London County Court with claim number 023LR600. The Defendant to those proceedings and the Respondent to the appeal is Aviva Insurance Limited. The County Court trial is due to commence on 29 June 2026.[2]By two separate, but joined, appeals, the Appellant seeks to appeal certain parts of two orders made in the County Court proceedings, as follows:(i) By appeal KA-2023-00016, he seeks to appeal orders made by Recorder Glancy KC (“the Recorder”) on 28 July 2023 (sealed on 4 August 2023); and(ii) By appeal KA-2024-000012, he seeks to appeal orders made by HHJ Hellman (“the Judge”) on 22 December 2023 (sealed on 5 January 2024).[3]The orders of the Recorder and the Judge which the Appellant seeks to appeal related to the joint expert process and costs budgeting.[4]The Appellant represents himself in the County Court claim and in these appeals. He requires the assistance of a court interpreter.[5]Both appeals were automatically struck out at 4.01 pm on 17 April 2025 because the Appellant had not complied with an unless order made by Sir Stephen Stewart on 26 March 2025, requiring him to provide a witness statement explaining the relevance of the appeals, given the underlying proceedings.[6]By an application dated 23 April 2025 the Appellant sought a retrospective extension of time to comply with Sir Stephen Stewart’s order, in appeal KA-2023-00016. No such application was made in appeal KA-2024-000012. On 23 March 2026, Ritchie J refused the Appellant’s application, such that appeal KA-2023-00016 remains struck out.[7]By an application dated 23 March 2026 the Appellant seeks to set aside the order of Ritchie J. Although this related solely to appeal KA-2023-00016, the Appellant made clear in his documentation in support of the application that he also sought to set aside the automatic strike out of appeal KA-2024-000012. Given the overlapping nature of the issues and the imminent trial, the Respondent agreed that it was consistent with the overriding objective to treat the Appellant’s application dated 23 March 2026 as relating to the strike out of both appeals.[8]This is my judgment on the application. The Appellant has filed lengthy written submissions which I have taken into account, together with the oral submissions he made at the hearing. I have also been assisted by clear and focussed written and oral submissions from Christopher Walker, counsel for the Respondent.

The factual background

[9]By a claim form submitted on 22 January 2021 the Appellant seeks damages for the losses he sustained in a road traffic accident on 30 January 2018. The Appellant suffered injuries when he was knocked to the ground from his bicycle after Mr Pawel Kepa, the Respondent’s insured, opened the door of a van into his path. The Respondent has admitted liability to the Appellant and no longer pursues allegations of contributory negligence initially made against him.[10]By an amendment to his initial claim form, the Appellant valued his claim at up to £100,000. However, his final schedule of loss dated 16 August 2024 seeks a total of £960,504.75 for past and future losses. The Respondent’s counter-schedule of loss dated 16 September 2024 contends that at most he is entitled to £919.22 for past losses, with no damages for future losses.[11]The parties have instructed psychiatric, orthopaedic surgery and Ear, Nose and Throat (“ENT”) experts. Various directions were given in the usual way for the preparation of joint statements.[12]In November 2022 the Respondent served surveillance evidence on the Appellant. His solicitors came off the record and he has represented himself ever since. As the Appellant was unable to comply with the court’s directions, the first trial window in April-May 2023 was vacated.[13]By the time the case came before the Recorder on 28 July 2023, only the joint statement of the psychiatry experts had been prepared. The joint statements of the orthopaedic and ENT experts were therefore outstanding.[14]The Respondent’s position was that the reason for the delay was that the Appellant had not instructed his orthopaedic and ENT experts to engage in without prejudice discussions with its experts since his solicitors had come off the record. For that reason, the Respondent had applied, on 24 May 2023, for an order striking out the Appellant’s claim, or in the alternative an unless order aimed at securing the outstanding joint statements. The Appellant had also made an application to the court, dated 11 April 2023. I have not seen a copy of the application. However, it appears that the Appellant’s position was that his medical experts were refusing to continue working on the case; and he provided documentation in support of his position.[15]No transcript of the hearing before the Recorder or of his judgment is available. However, his order makes his decisions clear.[16]The Recorder dismissed the Appellant’s application but did not accede to the Respondent’s request that he strike out the entire claim. Rather, at paragraph 2(a) of his order he made an order to the effect that the Appellant’s claim would be struck out unless by 4.00 pm on 20 September 2023, he provided evidence to the effect that his orthopaedic and ENT experts were willing and able to engage in a joint discussion with the Respondent’s experts and would prepare joint statements. He ordered that the outstanding joint statements be provided by 20 October 2023 and gave directions to a new trial window from 1 March to 30 June 2024.[17]The Recorder also permitted the Respondent to vary its cost budget to add in the sum of £27,000 to the costs previously approved by the court. The Respondent had sought an increase of £31,611.11, but not all of this was approved. The reasons for the increase related to (i) the Appellant’s visit from Poland to the UK to attend examinations with the Respondent’s medico-legal experts; (ii) the obtaining and disclosing of surveillance evidence by the Respondent and reviewing the Appellant’s responses to the same; and (iii) the costs of instructing interpreters to attend hearings to assist the Appellant.[18]The Appellant seeks to appeal the Recorder’s unless order at paragraph 2(a) of his order; and his decision to permit the Respondent to extend its costs budget.[19]The joint statement from the ENT experts was provided on 14 September 2023.

HHJ Hellman’s order dated 22 December 2023

[20]By the time the case came before the Judge on 22 December 2023, the joint statement from the orthopaedic experts remained outstanding. The Judge granted the Appellant relief from sanctions, insofar as he required it, in relation to paragraph 2(a) of the Recorder’s 28 July 2023 order, such that the Appellant was permitted further time to liaise with his orthopaedic expert, Mr Pandit. The Judge directed that the joint statement from the orthopaedic experts be provided by 22 June 2024.[21]The Judge also considered three applications the Appellant had made, dated 1 September 2023, 1 October 2023 and 9 December 2023. In fact, by the second and third of these applications the Appellant sought to amend his first application, such that there was really only one substantive issue before the Judge. The Appellant’s final position, as set out in his 9 December 2023 application notice, was that he sought an order to the effect that because the Respondent was “behaving oppressively in seeking to cause the [Appellant] to spend money disproportionately on costs”, the Respondent’s cost budget should be “cut entirely” in particular the “extension” (or variation) to it that had been permitted by the Recorder on 28 July 2023.[22]The Judge dismissed the Appellant’s applications. His reasons for doing so are set out in an approved judgment.[23]At paragraph 2 of the judgment, the Judge recorded the Appellant’s position to the effect that the Respondent had “instructed its experts not to co-operate with the [Appellant’s] experts in the preparation of joint expert reports”.[24]At paragraphs 3-4, the Judge explained that he considered there was no merit in the Appellant’s position because he accepted the evidence provided by the Respondent’s solicitors, in the form of a witness statement from Jacob Wright dated 14 December 2023.[25]The Judge set out paragraph 6 of Mr Wright’s statement verbatim. This was, in summary, to the effect that after the Appellant parted ways with his solicitors, on 19 January 2023 he wrote to the Respondent indicating that he would not instruct his experts to engage in the joint discussion process, citing concerns about their credibility. It was for this reason that Mr Wright had put his own experts “on hold” until there were further directions from the court.[26]The Judge therefore accepted Mr Wright’s evidence that the reason the joint statement process had been put on hold was due to the actions of the Appellant, not those of the Respondent.[27]At paragraph 9 of the judgment the Judge explained that for these reasons he did not consider that it would be right to revisit the Respondent’s cost budget. He added that he was not sure that the reasons advanced by the Appellant, even if he had accepted them, would have justified him in doing so in any event.[28]The Appellant seeks to appeal the Judge’s dismissal of his applications.

Subsequent events in the County Court claim

[29]The joint statement from the orthopaedic experts was provided on 21 July 2024. The trial is now due to commence on 29 June 2026. This is the fifth attempt to list the case for trial, previous trial windows in 2023, 2024 and 2025 having been lost.[30]By an application dated 20 March 2026, the Appellant applied to vacate the trial listing to allow for the proper disposal of his two appeals before this court. On 8 May 2026, HHJ Holmes dismissed that application, observing that the determination of the appeals “do not prevent a fair trial taking place as currently listed”.

The appeals

[31]On 21 August 2023 the Appellant filed his Appellant’s Notice in appeal KA-2023-000166. His grounds of appeal and later Skeleton Argument dated 5 January 2024 do not distil numbered grounds of appeal; and are rather diffuse and hard to follow. However, the thrust of them is that the Recorder was wrong to find and record in his order that the Appellant had not paid his orthopaedic and ENT experts, because in truth it was the Respondent who had been “blocking” the experts’ joint discussions. The Appellant also appeared to criticise his own expert, Mr Pandit, for failing to respond to correspondence and failing to read the documents for the joint experts meeting. He appeared concerned that Mr Pandit may be taking instructions from third parties.[32]On 21 November 2023 an order was made allowing the Appellant’s Notice to be filed out of time and requiring the Appellant to file a full appeal bundle by 9 January 2024. The order provided that the bundle must contain the documents specified in PD 52B para 6.4(1) and may contain any relevant documents specified in PD 52B para 6.4(2). On 8 January 2024 the Appellant filed an appeal bundle. This did not contain a transcript of the Recorder’s judgment.[33]On 17 January 2024 the Appellant filed his Appellant’s Notice in KA-2024-000012. Again, the grounds are far from clear. However, in broad terms, the Appellant contended that the Judge was wrong not to accept his argument that the Respondent was behaving oppressively and should have acceded to his application to reduce its costs budget.[34]On 10 April 2024 an order was made allowing the Appellant’s Notice to be filed out of time and requiring the Appellant to file an appeal bundle by 24 May 2024. On 23 May 2024 the appellant filed an appeal bundle, again without a transcript of the Judge’s judgment.[35]On 10 June 2024 an order was made joining the two appeals and ordering that a consolidated bundle be filed by 26 July 2024. Further directions were given in relation to the provision of both transcripts.[36]On 18 September 2024 time was extended to 1 November 2024 for the consolidated bundle to be filed. By an application notice sealed on 1 November 2024 the Appellant sought a further extension of time for provision of this bundle.[37]On 19 February 2025 Martin Spencer J considered the Appellant’s 1 November 2025 application. He ordered the Appellant to file a witness statement by 14 March 2025 setting out: “(i) The up-to-date position in relation to the obtaining of the transcripts of the judgments of Recorder Glancy KC and HHJ Hellman, exhibiting all relevant correspondence / emails; and (ii) The status of the underlying proceedings: in his application the Appellant indicated that he anticipated that the planned trial proceedings would be taking place on or after 7 January 2025, and he should inform the court of the status of those proceedings and, if appropriate…the continuing relevance of the appeals in view of the underlying proceedings”.[38]On 13 March 2025 the Appellant provided a witness statement in purported compliance with this order. On 26 March 2025 Sir Stephen Stewart reviewed the statement. At paragraph 11 of his order of the same date, he explained why he had concluded that it did not meet the requirements of Martin Spencer J’s[39]At paragraph 1 of his order, Sir Stephen ordered that the appeal would be struck out at 4.01 pm on 17 April 2025 unless by 4.00 pm that day, the Appellant filed a witness statement “explaining clearly the continuing relevance of the appeals in view of the underlying proceedings”.[40]At paragraph 14, he observed that it appeared that the Appellant had made numerous efforts to chase the transcripts but with no success. The order reflected that the Appeal Court officer had been asked to contact the County Court so as to progress the transcripts. Further progression of the appeals was suspended, pending receipt of the witness statement referred to in paragraph 1 of the order.[41]The Appellant did not comply with the unless order and accordingly his appeals were struck out automatically at 4.01 pm on 17 April 2025. On 23 April 2025 court staff emailed the parties confirming that this was the case.[42]On 24 April 2025 the Appellant applied for an extension of time to comply with the unless order.[43]On 14 May 2025 the Appellant filed a witness statement purporting to set out the continuing relevance of the appeals.[44]On 23 May 2025 Mr Justice Sheldon made directions permitting the Respondent to make representations in response to the application.[45]On 6 July 2025 the Respondent filed a detailed letter objecting to the Appellant’s application and inviting the court to order that both appeals stand struck out.

Ritchie J’s order dated 23 March 2026

[46]By this order, Ritchie J refused to extend time for the Appellant to comply with Sir Stephen Stewart’s order dated 26 March 2025 and confirmed that appeal KA-2023-000166 stood struck out for default of the unless order.[47]In accordance with R (Hysaj) v SSHD [2014] EWCA Civ 1633 at [38] and Lakatamia v Su [2019] EWCA Civ 1626 at [3], Ritchie J directed himself that the guidance given by the Court of Appeal on applications for relief from sanctions in Denton v TH White Ltd [2014] EWCA Civ 906; [2014] 1 WLR 3296 applies to applications for extensions of time.[48]The Denton guidance is summarised in theWhite Book 2026 at paragraph 3.9.3 as follows: “…a judge should address an application for relief from sanctions in three stages. The first stage is to identify and assess the seriousness and significance of the “failure to comply with any rule, practice direction or court order” which engages r.3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application including r.3.9(1)(a)(b). The court also gave guidance as to the importance of penalising parties who unreasonably oppose applications for relief from sanction”.[49]Ritchie J applied this legal framework to the Appellant’s application. His reasoning was set out a paragraph 16 of his order.[50]As to the first stage, he held that the default was “serious”, noting that this is an appeal from an interlocutory order which could have “thrown he whole trial off course”. He observed that the appeal had been: “…much delayed, not least by lack of updates and a lack of the transcript of the hearing. There is still no transcript filed. The order was made in 2023. The appeal bundle contains a large number of medical reports which are not relevant to the issue and it is a jumble. The court gave [the Appellant] extensions and then made an unless order and that was not complied with. The application to extend was only made after the deadline”.[51]As to the second stage he concluded that he did not consider that the reason put forward for the default in providing the witness statement was a good reason. He said: “Whilst I do not doubt that phone theft is scary and troublesome, the deadline was clear in the order. Other computers could have been used or paper letters could have been filed with the required witness statement”.[52]In considering the third stage, Ritchie J held as follows:
“When I look at all the circumstances of this appeal, I take into account that [the Appellant] was granted relief by [HHJ] Hellman in December 2023 and the trial is going ahead. He will obtain the damages matching his injuries when quantum is assessed, so I do not consider that the first part of the appeal has any relevance now. As for costs, the margin of discretion for a Recorder at a case management hearing is very wide, so I do not consider that part of the appeal is arguable in any event. It also took a year before the [the Appellant] applied for the transcript and he has never put in proper grounds of appeal. In all the circumstances this appeal stands struck out and the application for relief for an extension is refused”
.

The parties’ submissions

[53]The Appellant’s submissions were set out in (i) his application dated 24 April 2025 for an extension of time to comply with the unless order; (ii) his application to set aside Ritchie J’s order dated 26 March 2025; and (iii) his 30-page skeleton argument for the hearing before me dated 3 June 2026.[54]The Appellant also filed a lengthy bundle shortly before the hearing which included (i) draft grounds of appeal in both KA-2023-000166 and KA-2024-000012, each dated 6 April 2026; and (ii) the transcript of the Judge’s judgment. The draft grounds were not accompanied by any application to amend the initial grounds, nor any explanation for why the application to amend was being made over 2 years after the appeals had been commenced. It is not clear when the Appellant first provided the transcript to the Respondent but counsel had not seen it before provision of the bundle for the hearing.[55]In his skeleton argument, for the first time, the Appellant sought to rely on fresh evidence on appeal. This evidence was said to provide further proof that the Appellant was not responsible for the breakdown of the joint expert process.[56]The Appellant did not identify which documents were new; nor did he explain why those documents could not have been obtained for use before the Recorder or the Judge. This would have been necessary to meet the first criterion for the admission of such evidence on appeal set out in Ladd v Marshall [1954] 1 WLR 1489, CA. These are that:(1) the evidence could not have been obtained with reasonable diligence for use at the trial;(2) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and(3) the evidence must be such as is presumably to be believed; it must be apparently credible, though it need not be incontrovertible: see Denning LJ at 1491.[57]Ultimately, for the reasons which follow, these further procedural issues with the conduct of the appeals were not determinative.[58]The Appellant’s position, in summary, was that:(i) To the extent that Ritchie J was troubled by the lack of a transcript of the Recorder’s judgment in KA-2023-000166, the Appellant had complained repeatedly about this and it was not his fault: rather, correspondence showed various delays in the transcription process, for which he had received an apology from court staff, and some issues having potentially been caused by the Recorder no longer sitting. He had also now provided a transcript of the Judge’s judgment in KA-2024-000012.(ii) To the extent that Ritchie J was troubled by the lack of properly formulated grounds of appeal in KA-2023-000166, he had now provided such grounds, and the same was true of KA-2024-000012.(iii) Both appeals should be reinstated due to the difficulties the Appellant had had with his mobile phone in late March/early April 2025.(iv) The appeals were not academic because, as explained in his 14 May 2025 statement, the decisions taken by the Recorder and the Judge would have “an impact on the financial result of the costs of the parties”.(v) He should be permitted to rely on fresh evidence in his appeal; and permission should be granted in both appeals under CPR 52.6(a) because each had a real prospect of success; and/or under CPR 52.6(b) because there is some other compelling reason for the appeals to be heard.[59]As to the CPR 52.6(a) test, the Appellant’s overarching position was set out at paragraphs 2-6 of his skeleton argument as follows: “3. Although formally distinct, both appeals arise from the same factual matrix, namely responsibility for the failure of the joint statement process between the medical experts. 4. The central issue is whether adverse findings were made against the Appellant without proper consideration of contemporaneous documentary evidence. 5. The Appellant submits that both courts accepted the Respondent’s narrative without adequately analysing documentary evidence that materially contradicted it. 6. The Appellant further submits that this failure infected both decisions and produced substantial procedural unfairness”.[60]In respect of KA-2023-000166, the Appellant contended that the Recorder’s decision had proceeded on the basis of mistakes of fact in relation to the joint expert process: the Appellant had paid his experts and had not been responsible for the breakdown of the process. On that basis, he argued that (i) the principle relating to material mistakes of fact creating unfairness set out in E v SSHD [2004] EWCA Civ 49 at [66] applied; (ii) the Recorder had been wrong to impose an unless order which was unduly draconian; and (iii) the Recorder’s discretion was not exercised lawfully as it was based on a flawed factual premise, akin to the position discussed in Tibbles v SIG Plc [2012] EWCA Civ 518 at 39(ii).[61]In respect of KA-2024-000012, the Appellant submitted that the Judge had failed to engage with his evidence as to the Respondent’s conduct of the joint expert process and had unfairly simply accepted the evidence of Mr Wright.[62]As to the CPR 52.6(b) test, the Appellant contended that the other compelling reasons for the appeals to be heard were that they involve cumulative unfairness, the treatment of litigants in person, expert evidence management, unless orders and the integrity of judicial fact-finding.[63]The Respondent contended that the appeals should remain struck out as a proper exercise of the court’s case management powers and for the reasons given by Ritchie J in his order.[64]Moreover, given the progress the underlying County Court claim, the appeals serve no reasonable or useful purpose and are entirely academic. Analysis Preliminary observations

Analysis

[65]The Appellant’s application to set aside the strike out of both this appeals is, in effect, a renewal of his 23 April 2025 application for an extension of time to comply with Sir Stephen Stewart’s order dated 26 March 2025.[66]Although I have read Ritchie J’s order with care, I have made the decision on the Appellant’s application afresh.[67]Unlike Ritchie J, I was provided with the transcript of one of the relevant judgments and detailed evidence explaining why the other was not available. An appeal against the Recorder’s judgment could have proceeded, if necessary, by other means such as by the Appellant agreeing a note with the Respondent’s representative of the reasons given by the Recorder during the hearing. I therefore explained to the Appellant at the outset of the hearing that the absence of transcripts was unlikely to be a material factor in my decision.[68]Again unlike Ritchie J, I had been provided with detailed draft grounds of appeal. Whilethese had been filed very late and without explanation, I indicated to the Appellant that I was content to determine his application on the basis that his grounds of appeal were as set out in those documents. Again, therefore, I explained that the lack of grounds of appeal was unlikely to be material to the outcome of the application.[69]As Ritchie J noted, the Denton criteria apply to the Appellant’s application for an extension of time: see [47] and [48] above.

Denton stage (1)

[70]This requires an assessment of the seriousness and significance of the Appellant’s failure to comply with Sir Stephen Stewart’s order.[71]On any view these appeals have a protracted history, relating as they do to two orders made in 2023, in the context of County Court proceedings that remain live, and where permission has not yet been granted.[72]By the time of Sir Stephen Stewart’s order, the Appellant had already been afforded significant latitude, both in terms of the extensions of time he had been granted and the fact that there was (and still is) no CPR-compliant appeal bundle before the court on either appeal.[73]It is also relevant that Martin Spencer J had ordered the Appellant to provide a witness statement addressing the “potentially academic” issue, but he had failed to do so: see [37]-[38] above. The order made by Sir Stephen Stewart was therefore giving the Appellant a further opportunity to do something which he had already been directed to do.[74]Against this background, the Appellant’s failure to comply was significant; and serious as it has led to yet further delay in the appeals being progressed and yet further court resources being deployed on the appeals.

Denton stage (2)

[75]This stage requires consideration of why the default occurred.[76]Although the Appellant has contended that his mobile telephone was stolen on 28 March 2025, he has provided no corroborating evidence of this, such as a police report. Even if the Appellant was without access to his mobile phone, he could have tried to access his email via another device.[77]Box 10 of his application notice dated 23 April 2025 asserts that he regained access to his email account, it seems on a new phone, on 14 April 2025, but again no proof of this was provided. If the Appellant had immediately checked his email on that date, he would have seen the order and would have still had time to comply as the deadline was not until 4.00 pm on 17 April 2025.[78]The Appellant contends that even when he regained access to his email on 14 April 2025, he did not see the 31 March 2025 email from the court enclosing the Sir Stephen Stewart order. He says that this was because in order to read emails from the court, sent via the Thomson Reuters application, he needs the assistance of a friend who reads English, and that friend had not been available since 14 March 2025. No evidence from the friend was provided to support this assertion. In submissions the Appellant suggested he has more than one friend who is assisting him with this litigation. There are also other means by which the Appellant could have arranged translations of emails from the court.[79]The number of documents the Appellant has filed in these appeals, and the volume of material provided by the Appellant ahead of the hearing before me, suggests that he is able to deploy assistance in enabling him to fully participate in the litigation process; and to do so clearly in English.[80]For these reasons I do not find the reason the default occurred very persuasive.

Denton stage (3)

[81]This stage requires me to evaluate all the circumstances of the case, so as to deal justly with the application, including having regard to the matters set out in CPR 3.9, namely the need for litigation to be conducted efficiently and at proportionate cost; and the need to enforce compliance with rules, practice directions and orders.[82]Here, I agree with the Respondent that the appeal against the Recorder’s 28 July 2023 unless order relating to the orthopaedic and ENT experts is entirely academic. The unless order has been completely overtaken by events in that on 22 December 2023 HHJ Hellman granted the Appellant relief from sanctions for the remaining element of non-compliance with it: see [20] above. The unless order was therefore superseded within the County Court proceedings on that date. The lack of ongoing relevance of the unless order is underscored by the fact that the joint expert process has now been completed; and by the fact that the trial can now fairly proceed. Indeed, in his 14 May 2025 statement addressing the “potentially academic” issue, the Appellant himself did not refer to the joint expert issues but rather the “financial result of the costs of the parties” (see [58](iv) above), which I took to relate to the costs budget issues alone.[83]There is also an element to which both the appeals relating to the costs budget are academic. This is because at present the Appellant has the benefit of Qualified One Way Costs Shifting, meaning that no cost orders made against him in the Respondent’s favour can be enforced without the permission of the court; and to the extent that there is in the future an argument about the Respondent’s costs, the Appellant may well be able to take some of these points then.[84]The Appellant was correct to highlight that the Recorder’s order and the Judge’s judgment include findings about his conduct with which he disagrees. However, it is plain that his credibility is much more widely in issue in the County Court claim, not least given the surveillance evidence. Insofar as there was any attempt to cross-examine the Appellant at trial on these issues, it would be open to him to contend that these findings were not properly made; but Mr Walker conceded in open court during the hearing before me that he had no intention of questioning the Appellant at trial about whether he had paid his experts or about why the joint expert process broke down.[85]There has already been very substantial delay in the underlying County Court claim and in both appeals, which have not therefore been conducted efficiently and at proportionate cost.[86]It is also material that the Sir Stephen Stewart order is not the only occasion in the County Court or in this court when the Appellant has not complied with rules, practice directions and orders and there is a need to enforce such compliance.[87]Finally, in Hysaj at [46], Court of Appeal held that in most cases the merits of an appeal will have little to do with whether it is appropriate to grant an extension of time: it is only in those cases where the court can “see without much investigation that the grounds of appeal are either very strong or very weak” that the merits will have a significant part to play when it comes to balancing the various factors that have to be considered at stage (3) at the Denton process.[88]Here, I am satisfied that the merits of both KA-2023-000166 and KA-2024-000012 are in fact “very weak”, for the following reasons.[89]First, the Recorder’s decision to impose an unless order was based on his interpretation of the material placed before him as to why the joint expert process had broken down. The parties had different accounts for this and the Recorder opted to accept the Respondent’s position. Accordingly, this is very far from a material mistake of fact of the kind considered in E v SSHD [2004] EWCA Civ 49 at [66], where such mistakes need to be “established” in that they are “uncontentious and objectively verifiable”.[90]Second, the Recorder’s decision to permit the Respondent to extend its cost budget was a case management decision. It is well recognised that an appeal court should be slow to intervene with such a decision: as the White Book 2026 explains at paragraph 52.3.11: “A party applying for permission to appeal to overturn a case management decision made within the judge’s discretion must cross a high threshold (Royal & Sun Alliance Insurance Plc v T & N Ltd [2002] EWCA Civ 1964; [2003] P.I.Q.R. P26, CA, at [38]; Walbrook Trustees (Jersey) Ltd v Fattal [2008] EWCA Civ 427, CA, at [33]). In Abdulle v Commissioner of Police of the Metropolis (Practice Note) [2015] EWCA Civ 1260; [2016] 1 W.L.R. 898, CA, the Court of Appeal re-affirmed that it would not lightly interfere with case management decisions of lower courts…”.[91]The reasons the Recorder agreed to extend the budget are set out at [17] above. While it is plain that the Appellant disagrees with those reasons, they were plainly reasonable. They were also unrelated to the alleged mistake of fact relating to the joint expert process.[92]Third, the Judge’s dismissal of the Appellant’s applications to have the Respondent’s cost budget reduced, ideally to nil, on grounds of its “oppressive” conduct, was again a case management decision. It was a highly unusual application. As the Judge identified it is far from clear that there is a power to make such an order. In any event the Judge was entitled to accept Mr Wright’s evidence, not that relied on by the Appellant, which sought to explain the delays in the joint expert process, so as to refuse the application.[93]Fourth, PD52A, paragraph 4.6 makes special provision for applications for permission to appeal from case management decisions. When considering such an application, the court may take into account whether “(a) the issue is of sufficient significance to justify the costs of an appeal” and whether “it would be more convenient to determine the issue at or after trial”. For the reasons given at [81]-[85] above, both of those questions would be answered in the negative in respect of both these applications for permission to appeal, which would provide a further basis for refusing permission.[94]Fifth, the factors relied on by the Appellant in support of his argument that the CPR 52.6(b) test applies, are generic factors that apply in very many cases: there is nothing particularly “compelling” about them.[95]Accordingly, all the circumstances of the case at Denton stage (3) also militate against allowing the Appellant’s application.

Conclusion

[96]For all these reasons, having applied the Denton criteria, I dismiss the Appellant’s application. Both appeals therefore remain struck out.

order

“(a) The witness statement does no more than set out what happened at the hearing on 7th January 2025, where applications made by the Appellant (the content of which is not explained) were dismissed and directions were given to trial with a trial window between 1st April 2025 and 20th September 2025. (b) It is not at all clear that the orders of [28th July 2023] and 22nd December 2023 are still relevant given the further progress in the county court proceedings. (c) There is nothing in the witness statement which informs the court of the continuing relevance of the appeals. (d) As was pointed out as early as 20th November 2023 [when an order highlighted that if the Appellant had not complied with the Recorder’s order then the claim would have been struck out and any appeal would be pointless”]…, an appeal does not operate as a stay of the proceedings in the lower court and there has been no application for such a stay. It appears from looking at the Order[s] of 28th July 2023 and 22nd December 2023 that they may well have been overtaken by events. For example, the ‘Unless’ order in paragraph 2a of the Order of [28th] July 2023 has not come into effect - see the order of 22nd December 2023 para 2. Further the draft order of 7th January 2025 gives clear directions to trial and provision for expert evidence… (e) The Appellant should be aware that if the trial takes place, and/or further orders in the county court have superseded the orders the subject of the appeals, permission will not be given to appeal since the outcome would be purely academic”.