Bijlani v Unum Ltd

A party cannot ordinarily invite a later case-management judge to revisit an earlier procedural categorisation by making the same application in a different form. The proper route is an appeal, subject to the applicable time limit and permission requirements. A change of view may be permissible where there has been a true change of circumstances. The court must apply the overriding objective, including proportionality, expedition, proper allocation of court resources and compliance with rules and orders. Serious and unjustified delay, particularly where it wastes court time immediately before trial, may justify refusing to interfere with the earlier decision.

The claimant brought an income-protection claim against the defendant insurer. At a case-management conference, Master Leslie directed that the trial be assigned to Category B, meaning that it could be heard by either a High Court judge or a Deputy High Court judge. The case was subsequently listed before a Deputy High Court judge.

On the eve of trial, the claimant sought to have the case re-listed before a High Court judge. She had not appealed the Master’s order within the applicable period, had not sought permission to appeal, and had not complied with the procedural requirements for an application or appeal. She relied on the value and importance of the claim, her health and her lack of formal representation. The central issue was whether the court should interfere with the earlier categorisation and listing decision.

1. The application was refused. The case remained categorised as Category B and listed for hearing before the Deputy High Court judge.
2. The starting point was Master Leslie’s order, made after reviewing the case and hearing argument. The claimant had not identified any material or true change of circumstances since that order. She was therefore seeking, in substance, to re-open an earlier case-management decision rather than to respond to changed circumstances.
3. Following the approach in J (A Child) v Smith (Deceased) [2001] EWCA Civ 1264, interlocutory decisions should be challenged through the established appeal procedures. Those procedures promote finality and certainty. The claimant’s alternative route was unavailable because the appeal period had expired, permission would have been required, and the formal requirements of CPR Part 52 had not been observed.
4. The court applied the overriding objective in CPR 1.1. The relevant considerations included the importance and value of the claim, complexity, expedition, fairness, proportionality, allocation of court resources and compliance with procedural rules and orders. The claimant could not dictate the level of judge who would hear the case.
5. The claimant’s health and lack of representation were considered but did not explain the ten-month delay. Her continuing and vigorous participation in other interim applications showed no substantial forensic incapacity. The eve-of-trial challenge had already wasted a day of court time. In light of the strengthened emphasis on procedural compliance, including the observations in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, there was no sufficient basis for intervention.

The judgment does not state any appellate history for the underlying claim. It records that the claimant had previously sought permission to appeal Master Leslie’s decision concerning preliminary issues, but the present judgment concerned her later attempt to alter the trial categorisation and listing.