Pawel Szwed v Aviva Insurance Ltd

Applications to set aside an automatic strike-out of appeals engage the three-stage approach in Denton. The court assesses the seriousness and significance of the breach, the reason for it, and all the circumstances, including efficient and proportionate litigation and compliance with court orders.

Where an appeal concerns case-management decisions that have been overtaken by events, or raises issues better addressed at trial, its merits may be weak or academic. Appellate intervention in discretionary case-management decisions requires a high threshold. Generic concerns about fairness or litigants in person do not ordinarily constitute a compelling reason for an appeal.

The appellant pursued two joined appeals from orders made in the Central London County Court concerning a joint medical-expert process and costs budgeting. The appeals were automatically struck out after he failed to comply with an unless order requiring a witness statement explaining their continuing relevance.

A judge subsequently refused an extension of time. The appellant sought to set that decision aside and to reinstate both appeals. By the time of the application, relief from sanctions had superseded the relevant unless order, the expert process was complete, and the underlying personal injury claim was listed for trial. The central issues were whether the default justified relief and whether either appeal retained a sufficient practical or legal purpose.

1. The application was treated as a fresh consideration of the request for an extension of time. Applying Denton, the court considered seriousness and significance, the reason for default, and all the circumstances, including the matters in CPR 3.9(1).

2. The breach was serious and significant. The appeals had a protracted history, the appellant had already received substantial latitude, an earlier direction addressing their potentially academic nature had not been complied with, and the default caused further delay and expenditure of court resources.

3. The appellant’s explanations, including loss of access to his mobile telephone and difficulties obtaining assistance with English-language emails, were insufficiently supported and not persuasive. Alternative means of accessing communications and complying with the order were available.

4. All the circumstances militated against relief. The appeal concerning the unless order was academic because the order had been superseded when HHJ Hellman granted relief from sanctions and because the joint expert process had since been completed. The costs appeals also had limited practical significance, given qualified one-way costs shifting and the possibility of addressing relevant costs issues later.

5. The proposed appeals were very weak. The Recorder’s conclusion about the breakdown of the expert process involved a choice between competing accounts, not the objectively verifiable mistake required by E v SSHD [2004] EWCA Civ 49. The costs decisions were discretionary case-management decisions, from which an appeal court should be slow to interfere: see Royal & Sun Alliance Insurance Plc v T & N Ltd [2002] EWCA Civ 1964, Walbrook Trustees (Jersey) Ltd v Fattal [2008] EWCA Civ 427 and Abdulle v Commissioner of Police of the Metropolis [2015] EWCA Civ 1260.

6. The application to rely on fresh evidence also faced the criteria in Ladd v Marshall [1954] 1 WLR 1489, which the appellant had not addressed. The special provision for appeals from case-management decisions in PD52A, paragraph 4.6 provided an additional reason to refuse permission.

7. The application was dismissed. Both appeals remained struck out.

• High Court (King’s Bench Division): Mrs Justice Hill dismissed the application to set aside the strike-out and confirmed that both appeals remained struck out.
• Central London County Court: Recorder Glancy’s order dated 28 July 2023 imposed an unless order and permitted a variation of the respondent’s costs budget. HHJ Hellman’s order dated 22 December 2023 granted relief from sanctions in relation to the remaining expert-process issue and dismissed the appellant’s costs application.
• High Court: Ritchie J’s order dated 23 March 2026 refused an extension of time and confirmed the strike-out of appeal KA-2023-000166.