The High Court’s decision in Szwed v Aviva Insurance Ltd [2026] EWHC 1425 (KB) confirms that the merits of an appeal may be a material factor at the third stage of the Denton framework when the court can see without much investigation that the grounds are very weak, and that costs budget decisions attract a high threshold for appellate intervention.
Background
This matter arose from a personal injury claim brought in the Central London County Court by Mr Pawel Szwed against Aviva Insurance Limited. The underlying claim related to a road traffic accident on 30 January 2018, in which the Appellant was knocked from his bicycle after the Respondent’s insured opened a van door into his path. Liability was admitted, and allegations of contributory negligence were subsequently abandoned. The Appellant valued his claim at up to £100,000 in his original claim form, though his final schedule of loss dated 16 August 2024 sought a total of £960,504.75 for past and future losses. The Respondent’s counter-schedule contended that the Appellant was entitled to no more than £919.22 for past losses, with nothing for future losses. The parties instructed psychiatric, orthopaedic surgery, and ENT experts, with directions given in the usual way for the preparation of joint statements.
The procedural history of the claim was protracted. In November 2022, the Respondent served surveillance evidence on the Appellant, following which his solicitors came off the record. He has represented himself, with the assistance of a court interpreter, ever since. The first trial window in April to May 2023 was vacated because the Appellant was unable to comply with the court’s directions.
By the time the matter came before Recorder Glancy KC on 28 July 2023, only the joint statement of the psychiatry experts had been prepared. The orthopaedic and ENT joint statements remained outstanding. The Respondent had applied on 24 May 2023 for the claim to be struck out, or in the alternative for an unless order to secure the outstanding joint statements. The Recorder declined to strike out the claim but made an unless order at paragraph 2(a) of his order, to the effect that the claim would be struck out unless by 4.00 pm on 20 September 2023 the Appellant provided evidence that his orthopaedic and ENT experts were willing and able to engage in joint discussions and prepare joint statements. Directions were given to a new trial window from 1 March to 30 June 2024.
The Costs Budget Decisions
The Recorder also permitted the Respondent to vary its costs budget by adding £27,000 to the previously approved figure, against a sought increase of £31,611.11. The reasons for the increase related to the Appellant’s travel from Poland to attend medico-legal examinations, the obtaining and disclosure of surveillance evidence, and the costs of instructing interpreters to attend hearings.
The ENT joint statement was provided on 14 September 2023. However, by the time the matter came before HHJ Hellman on 22 December 2023, the orthopaedic joint statement remained outstanding. The Judge granted the Appellant relief from sanctions in relation to paragraph 2(a) of the Recorder’s order and directed that the orthopaedic joint statement be provided by 22 June 2024.
The Judge also considered three applications made by the Appellant, dated 1 September, 1 October, and 9 December 2023, which were in substance a single application seeking to have the Respondent’s costs budget reduced, or “cut entirely”, on the basis that the Respondent had been behaving oppressively by causing the Appellant to spend money disproportionately on costs. The Judge dismissed those applications, accepting the evidence of the Respondent’s solicitor, Jacob Wright, that the delay in the joint expert process had been caused by the Appellant’s own conduct rather than that of the Respondent. The Judge also noted that it was far from clear that any power existed to make the order sought in any event. The orthopaedic joint statement was ultimately provided on 21 July 2024, and the trial was listed to commence on 29 June 2026, being the fifth attempt to list the matter for trial.
The Appeals and Strike Out
The Appellant filed his Appellant’s Notice in appeal KA-2023-000166 on 21 August 2023, challenging the Recorder’s unless order and the decision to permit the Respondent to extend its costs budget. He filed his Appellant’s Notice in appeal KA-2024-000012 on 17 January 2024, challenging the Judge’s dismissal of his applications to reduce the Respondent’s costs budget. Both appeals were subject to significant procedural difficulties, including the absence of CPR-compliant appeal bundles, the absence of transcripts of the relevant judgments, and a failure to provide properly formulated grounds of appeal.
On 19 February 2025, Martin Spencer J directed the Appellant to file a witness statement addressing the continuing relevance of the appeals in light of the progress of the underlying proceedings. The statement provided on 13 March 2025 was considered by Sir Stephen Stewart on 26 March 2025, who concluded that it did not meet the requirements of Martin Spencer J’s order. Sir Stephen made an unless order requiring the Appellant to file a further witness statement by 4.00 pm on 17 April 2025 explaining clearly the continuing relevance of the appeals. The Appellant did not comply, and both appeals were automatically struck out at 4.01 pm on 17 April 2025.
The Appellant applied on 24 April 2025 for a retrospective extension of time to comply with Sir Stephen Stewart’s order in appeal KA-2023-000166, but made no such application in KA-2024-000012. On 23 March 2026, Ritchie J refused the application and confirmed that KA-2023-000166 remained struck out. By a further application dated 23 March 2026, the Appellant sought to set aside Ritchie J’s order, and also sought to set aside the automatic strike out of KA-2024-000012. The Respondent agreed that it was consistent with the overriding objective to treat that application as relating to the strike out of both appeals. The application came before Mrs Justice Hill, who delivered judgment on 11 June 2026.
Before the hearing, the Appellant applied on 20 March 2026 to vacate the trial listing to allow for the proper disposal of his two appeals. On 8 May 2026, HHJ Holmes dismissed that application, observing that the determination of the appeals did not prevent a fair trial taking place as currently listed.
The Legal Framework
Mrs Justice Hill noted that in accordance with R (Hysaj) v SSHD [2014] EWCA Civ 1633 at [38] and Lakatamia v Su [2019] EWCA Civ 1626 at [3], the guidance given by the Court of Appeal in Denton v TH White Ltd [2014] EWCA Civ 906 applies to applications for extensions of time. The Denton guidance requires a judge to address an application for relief from sanctions in three stages: first, to identify and assess the seriousness and significance of the failure to comply; second, to consider why the default occurred; and third, to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application, including the matters set out in CPR 3.9.
The court also noted that in Hysaj at [46], the 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) of the Denton process.
The Appellant sought to rely on fresh evidence on appeal, said to provide further proof that he was not responsible for the breakdown of the joint expert process. However, the Appellant did not identify which documents were new, nor did he explain why those documents could not have been obtained with reasonable diligence 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.
Application of the Denton Framework
At stage one, Mrs Justice Hill held that the Appellant’s failure to comply was significant and serious. The appeals had a protracted history, relating to two orders made in 2023, in the context of County Court proceedings that remained live, and where permission had not yet been granted. 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. Martin Spencer J had ordered the Appellant to provide a witness statement addressing the “potentially academic” issue, but he had failed to do so. 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. Against this background, the Appellant’s failure to comply was significant and serious as it had led to yet further delay in the appeals being progressed and yet further court resources being deployed on the appeals.
At stage two, the court considered why the default occurred. Although the Appellant contended that his mobile telephone was stolen on 28 March 2025, he 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. The Appellant asserted that he regained access to his email account 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. The Appellant contended 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 because he needed 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. The number of documents the Appellant had filed in these appeals, and the volume of material provided by the Appellant ahead of the hearing, suggested that he was able to deploy assistance in enabling him to fully participate in the litigation process. For these reasons the court did not find the reason the default occurred very persuasive.
At stage three, the court evaluated 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. This evaluation encompassed the academic nature of the appeals, the merits of the appeals, and the broader conduct of the litigation.
The Academic Nature of the Appeals
The court agreed with the Respondent that the appeal against the Recorder’s 28 July 2023 unless order relating to the orthopaedic and ENT experts was entirely academic. The unless order had 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. The unless order was therefore superseded within the County Court proceedings on that date. The lack of ongoing relevance of the unless order was underscored by the fact that the joint expert process had now been completed, and by the fact that the trial could 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”, which the court took to relate to the costs budget issues alone.
There was also an element to which both the appeals relating to the costs budget were academic. This was because at present the Appellant had the benefit of Qualified One Way Costs Shifting, meaning that no cost orders made against him in the Respondent’s favour could be enforced without the permission of the court, and to the extent that there was in the future an argument about the Respondent’s costs, the Appellant may well be able to take some of these points then.
The Appellant was correct to highlight that the Recorder’s order and the Judge’s judgment included findings about his conduct with which he disagreed. However, it was plain that his credibility was 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 the Respondent’s counsel conceded in open court during the hearing 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.
The Merits of the Appeals
Mrs Justice Hill was satisfied that the merits of both KA-2023-000166 and KA-2024-000012 were in fact “very weak”, for the following reasons.
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 was 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”.
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 at [38]; Walbrook Trustees (Jersey) Ltd v Fattal [2008] EWCA Civ 427 at [33]). In Abdulle v Commissioner of Police of the Metropolis (Practice Note) [2015] EWCA Civ 1260, the Court of Appeal re-affirmed that it would not lightly interfere with case management decisions of lower courts. The reasons the Recorder agreed to extend the budget related to the Appellant’s travel from Poland to attend medico-legal examinations, the obtaining and disclosure of surveillance evidence, and the costs of instructing interpreters to attend hearings. While it was plain that the Appellant disagreed with those reasons, they were plainly reasonable. They were also unrelated to the alleged mistake of fact relating to the joint expert process.
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 was far from clear that there was 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.
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 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.
Fifth, the factors relied on by the Appellant in support of his argument that the CPR 52.6(b) test applies, were generic factors that apply in very many cases: there was nothing particularly “compelling” about them.
Conclusion
Mrs Justice Hill held that there had already been very substantial delay in the underlying County Court claim and in both appeals, which had not therefore been conducted efficiently and at proportionate cost. It was also material that the Sir Stephen Stewart order was not the only occasion in the County Court or in this court when the Appellant had not complied with rules, practice directions and orders and there was a need to enforce such compliance.
For all these reasons, having applied the Denton criteria, the court dismissed the Appellant’s application. Both appeals therefore remained struck out.
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