Emma-Louise Stewart v Thames Water Utilities Limited

A fair hearing may require proportionate adjustments so that a disabled or vulnerable litigant can participate effectively, but the appellate question remains whether the process adopted was unjust. A court deciding summary judgment must assess whether the claim has a realistic, more than fanciful, prospect of success without conducting a mini-trial. That does not prevent critical analysis of documentary, witness and expert evidence, particularly where the factual case is unsupported or contradicted by available material. The court must consider evidence reasonably expected at trial, but a party cannot rely on speculation that something may emerge. In the context of relief from sanctions, the court may consider whether the claim would remain hopeless even on the evidence that could properly be admitted.

The claimant appealed from the order of Her Honour Judge Bloom in the Central London County Court dated 8 February 2024. The order refused relief from sanctions, entered summary judgment for the defendant and awarded costs on account.

The claim concerned alleged negligence causing flooding at business premises and substantial business interruption losses. The claimant had failed to serve witness evidence and an updated schedule of loss. The appeal alleged that the hearing had been unfair because of disability and vulnerability, and that the summary judgment decision involved a prohibited mini-trial, excessive reliance on expert evidence and improper assessment of the merits.

The renewed application for permission to appeal was dismissed.

1. Fair hearing. A fair hearing can require proportionate measures to ensure that parties are on an equal footing and can participate fully. Possible measures include reasonable adjustments for disability or health conditions. The first-instance judge retains considerable case-management discretion, especially where no formal request or ground-rules hearing has been sought. The appellate question is whether the process adopted, or the decision reached, was unjust. On the transcript, the claimant had been given substantial procedural allowances, opportunities to take breaks and additional time, and a full opportunity to present her case. Ground 1 was therefore not arguable.
2. Relief from sanctions and summary judgment. It was permissible, when applying the third stage of the Denton three-stage test, to consider whether granting relief would merely allow a hopeless claim to proceed. The judge was entitled to determine the extent of any relief and was not thereby exercising the trial judge’s jurisdiction.
3. CPR 24.3. The relevant question was whether the claim had a realistic, rather than fanciful, prospect of success. A court must not conduct a mini-trial, but may critically analyse documentary, witness and expert evidence. It need not accept factual assertions at face value where they lack substance or are contradicted by available documents. The court must consider evidence reasonably expected to be available at trial, but it is insufficient to say that something may turn up. The proper question is whether there are reasonable grounds for believing that disclosure may materially add to or alter the evidence relevant to the claim’s prospects.
4. Those principles justified the first-instance judge’s assessment of the claimant’s unsupported and changing loss case, the available witness material and the defendant’s expert report. No arguable error of approach was shown. Ground 2 was refused.

• High Court (King’s Bench Division): The renewed application for permission to appeal was dismissed.
• Central London County Court: Her Honour Judge Bloom’s order dated 8 February 2024 refused relief from sanctions, entered summary judgment for the defendant and ordered costs.