Emma-Louise Stewart v Thames Water Utilities Limited

In giving this judgment, I refer to the parties as they were before the Central London County Court (“CLCC”). This is my ruling on the claimant’s appeal against the order of Her Honour Judge Bloom, sitting at the CLCC on 8 February 2024, by which summary judgment was entered on the claimant’s claim, her application for relief from sanction was refused, and she was ordered to pay the defendant’s costs, to be subject to detailed assessment if not agreed, with a payment of £60,000 on account.

The claimant filed her notice of appeal on 1 March 2024, together with an application for a stay of execution on the costs award. The notice had been misfiled but the necessary extension of time was granted, although the application for a stay was refused (Cotter J order, seal dated 28 March 2024). After various extensions of time relating to the filing of the appeal bundle, by order seal dated 11 February 2025, Johnson J refused her application for permission to appeal. The claimant having requested to renew her application for permission at an oral hearing, this matter came before Kerr J on 14 May 2025, when it was ordered that the appeal should be considered at a rolled up hearing, with a time estimate of half a day. The initial listing of that hearing was for 22 July 2025 but that was adjourned on the claimant’s request (for medical reasons), and was subsequently re-listed for today.

At the claimant’s request, adjustments have been made to the listing of, and arrangements at, this hearing. The hearing was thus listed for a 2:00pm start, to accommodate the claimant’s childcare arrangements, and a high-backed chair made available to her; I also offered to take breaks at any stage requested by the claimant, although in the event no such request was made.

The defendant is a water utility company, with (relevantly) responsibility for the water infrastructure in the SW2 area. By her claim, issued in the CLCC on 11 January 2022, the claimant sought damages arising out of what was said to have been the defendant’s negligence causing flooding at premises at 25 Tulse Hill, London SW2 (“the premises”). It was the claimant’s case that, operating a business (“Treats and Ting”) as a sole trader at the premises, she suffered losses due to the defendant’s negligence. Her claim was initially advanced in the sum of £350,555.00, but, by amended particulars of claim, (with a signed statement of truth by the claimant, dated 23 December 2022), that was increased to £462,955.00 (plus interest). It was the claimant’s case that this represented business disruption losses for the period 5 February 2016 to 11 October 2017, due to flooding at the premises caused by the defendant’s water infrastructure.

By its defence, the defendant admitted liability, but made clear that issues of causation and quantum remained in dispute.

It was the claimant’s case that the premises consisted of three rooms for hire (rooms A, B and C), two of which were in the basement, in addition to a café area on the ground floor; she said she had commenced trading from the ground floor café on 15 January 2016 and that, although the basement rooms had not been in a condition to be hired out at the time of the flooding in early February 2016, they were to have been made ready shortly after that, and, thereafter, they were offered for use by paying customers as meeting and event spaces, at a cost of £25 per hour plus a refreshment charge of £5 per person. The pleaded claim was advanced on the basis that the claimant had reasonably expected to be able to hire each of the rooms out full time, six days a week.

For the defendant, it was contended that, as the claimant was a sole trader and had, by her own admission not started hiring out the rooms at the time of the flood, her claim must be limited to the loss of a chance to have earned more income, after deduction of costs, overheads, and taxes, than she in fact did. The defendant pointed to the fact that the claimant had been paid £44,660.95 in respect of business interruption losses (a sum paid by the defendant’s insurers), which, it argued, more than compensated her for any loss of income (after relevant deductions) that might have been incurred as a result of the flooding (even before applying a discount to reflect the loss of chance nature of the claim in respect of room hire). It was submitted that there was no documentary or witness evidence to suggest any of the rooms were let to paying customers before the flood, during the period of the business interruption claim, or after completion of repairs; it was the defendant’s case that the claimant’s claim was exaggerated and fanciful and that she was entitled to no further compensation.

At a case management hearing on 25 November 2022, at which both parties were represented by counsel, the claim was assigned to the multi-track and directions were given for disclosure, exchange of witness statements, for expert evidence, and for an up-dated schedule of loss; the court’s order recording these case management directions was sent out to the parties on 15 December 2022.

On 23 June 2023, in accordance with the court’s directions, the defendant served its witness statements; the claimant did not.

By application of 9 August 2023, the defendant sought summary judgment, alternatively an order striking out the claimant’s claim. That application was initially listed for hearing on 1 September 2023 but, at the claimant’s request, that listing was adjourned. Meanwhile, the trial was listed to commence on 11 March 2024, with a pre-trial review hearing on 24 February 2024.

On or about 13 October 2023, the claimant parted company with her lawyers; thereafter she acted as a litigant in person in the proceedings before the CLCC.

On 18 October 2023, the defendant served its expert report, from Mr Trevor Watson, an expert in the valuation of hospitality businesses such as the claimant’s, which supported the defendant’s case (Mr Watson’s conclusion was that the highest the claimant could put her case would be on the basis of around £30,000, something less than she had already been paid). The claimant did not serve any such evidence and did not ask any questions of the defendant’s expert.

Although the deadline for filing a schedule of loss was extended to 17 January 2024, the claimant failed to comply with that direction.

The defendant’s application for summary judgment was re-listed for 8 February 2024, before HHJ Bloom; the claimant was in person, the defendant was represented by Ms Atkins.

During the course of the afternoon/evening of 7 February 2024, the claimant had sought to file an application for relief from sanctions and documents in support; she had, however, not lodged this documentation during the court office hours and had not paid the required fee. In any event, HHJ Bloom treated this as an application for relief from sanctions and went on to hear from the claimant in this regard, before hearing from Ms Atkins on the summary judgment application.

I have read the transcript of the hearing before HHJ Bloom and make the following observations: (i) on a number of occasions, HHJ Bloom indicated that she was sympathetic to the claimant’s position as a litigant in person and made allowances for her position in that regard; (ii) equally, HHJ Bloom expressed sympathy for the claimant’s health difficulties (relied on as relevant to her failure to comply with the court’s directions), and made adjustments during the hearing, including agreeing to the claimant remaining seated when making her submissions, encouraging her to take time, to drink water etc; (iii) during the course of the hearing, the claimant clarified that her losses were in fact in the region of £121,000 (allowing for the sum she had already been paid); (iv) the claimant did not apply for an adjournment of the hearing; (v) when it became apparent that the hearing would go into the afternoon, HHJ Bloom consulted with the claimant in relation to timings and made clear that she would seek to accommodate the claimant’s childcare difficulties and medical appointment, resuming the following day if necessary (I return to this point below); (vi) an adjournment took place over lunch and there was subsequently a short break when HHJ Bloom had to deal with another matter.

In the event, having heard extensive submissions from both sides, HHJ Bloom gave an ex tempore judgment at the hearing on 8 February 2024, addressing both the applications before her.

HHJ Bloom accepted that the claimant had experienced a number of difficulties during the course of 2023: she had given birth to twins in January and had experienced multiple health issues; HHJ Bloom also accepted the claimant had found acting in person to be a distressing experience and, although she had been aware of the defendant’s application since November 2023, she had been unaware of the re-listed hearing of the application until the end of January 2024.

Recording that the claimant had (overnight on 7/8 February 2024) filed and served some 200-300 pages of documents for the 8 February hearing, HHJ Bloom treated these as including an application for relief from sanctions (notwithstanding the claimant’s failure to pay the required fee). Applying the Denton three-stage test (Denton and ors v T H White and ors [2014] EWCA Civ 906), HHJ Bloom was clear that there had been a serious and significant breach of the court’s directions. Although HHJ Bloom took into account that the schedule of loss had only been due on 17 January 2024, and the failure in this regard could probably be remedied within a few days, she considered the failure in respect of witness statements to be “critical”. Allowing for the claimant’s personal difficulties, HHJ Bloom also took account of the fact that she had been legally represented up to mid-October 2023; noting the claimant’s criticisms of her former lawyers, HHJ Bloom did not find that amounted to a good reason.

Going on, in any event, to evaluate all the circumstances of the case to ensure a just outcome, HHJ Bloom accepted that it was necessary, at this third stage, to consider the defendant’s application for summary judgment:

“12.

... if the court is satisfied that this is a case which, even on the best evidence that the claimant can produce, will not have a realistic prospect of success, the court should not give relief from sanctions because it is just opening the doors to a hopeless case that is bound to fail.”

Observing that the defendant’s strike out application, which was based on the claimant’s failure to comply with the court’s directions, could be dealt with by any grant of relief from sanctions, HHJ Bloom approached her task by applying the test under CPR 24.3, asking whether it could be said that the claimant had no real prospect of succeeding on her claim. Referring to relevant case-law, HHJ Bloom noted that she was required to consider whether the claimant had a realistic, as opposed to fanciful, prospect of success (Swain v Hillman [2001] 1 All ER 91), and that a realistic claim was one that had some degree of conviction, that is, that it is more than merely arguable (ED&F Man Liquid Products v Patel [2003] EWCA Civ 472).

Although the claimant had failed to file any witness statements to support her case, the documents she had sent to the court overnight, for the 8 February 2024 hearing, had included a statement from the claimant herself and a number of emails from individuals who the claimant said were (or would have been) booked into using the rooms at the premises (and whose business she said she had thus lost). HHJ Bloom considered that, if she granted the claimant relief from sanctions, she would only allow her to rely on the evidence she had filed and served prior to that hearing (assuming (in the claimant’s favour) that the individuals who had sent the emails would formally confirm those messages by way of witness statements, albeit the emails dated back to 2021). HHJ Bloom also took into account the document the claimant had created to set out what she claimed to have been her losses (effectively standing as a schedule of loss), the claimant’s own statements (two of which had been served previously, dealing with the defendant’s application, and the one served for the hearing on 8 February), and what the claimant said during the hearing, summarised as follows:

“19.

Ms Stewart says that if the case went to trial, she would give her evidence which is, "This is how much these people would have come to my business. I would have got this business and the expert is wrong”. The expert has not factored in, she says, that she has very extensive business knowledge. She was one of the best people in the area to run this sort of business and for those reasons she can establish her case, although she accepts she does not have any contemporaneous documents such as diaries with bookings. She said she would have had them at some point but she does not have them now. Anyway, they have not been disclosed. I can only rely on the documentation that is before me.”

Having further summarised the contents of the various emails relied on by the claimant (see paragraphs 21-24 of the transcript of the judgment), and considered carefully the evidence that would be available at trial (including the defendant’s expert report), HHJ Bloom reached the conclusion that:

“27.

... this is not a claim that is realistic ... the reality is that [the claimant] has put before the court evidence that is just not supported by any documents at all. The defendant has taken at face value what they could draw from the evidence of her witnesses but these are letters of intent. They were not actual, clear evidence that the court would be able to rely on at trial and [the claimant] has extrapolated from that without there being clear evidence.”

A further problem for the claimant’s claim arose from the change to her pleaded case. Having signed a statement of truth in December 2022 in respect of a claim for £462,955.00, plus interest (when the losses established by the evidence available to support her case would already have been apparent to her), during the course of the hearing on 8 February 2024 the claimant volunteered that, allowing for the payment that had already been made, her losses could only stand at some £121,000. As HHJ Bloom observed:

“27.

... The difficulty for her is that what she extrapolates now from those documents, is not what was being put in her particulars of claim, which extrapolated a much greater amount of hours. The judge at trial is going to find that divergence as something which is extremely difficult to reconcile because it is only her word as to what these hours were going to be, Ie she had only been working for a very short period of time. It is speculative.”

Noting that it was for the claimant to prove her case, on the balance of probabilities, HHJ Bloom made the point that this was:

“28.

... a speculative claim that [the claimant] was going to have what would have been an extraordinarily large income for a first year of trading,”

further observing that there was an:

“insurmountable problem of the expert evidence which is so clearly contradicting everything [the claimant] is saying, and there is no other expert”

and commenting that a trial judge would have to have “a very good reason to depart from the expert evidence” particularly where, as here, no questions had been raised with that expert.

HHJ Bloom summarised her conclusions as follows:

“30.

..., it is the obligation of the claimant to prove their case and provide the evidence that will support their claim. Unfortunately, I do not see that that evidence exists in this case. The basis on which she has calculated the schedule of loss that appears to be how it would now go before the courts, is not supported by any evidence. It is not supported by her own witnesses, because they do not specify any of the details she has asserted. Their evidence at its highest, is what is in their emails which would have been all I would have allowed to go before the court. With that issue combined with the lack of any documentary evidence, lack of any contemporaneous evidence from her and the fact the business never recommenced after November 2017, this is an unarguable claim and the sooner that this court brings it to an end the better, and not just because the defendant has asked me to, but the claimant's costs would just increase enormously were I to allow this case to go ahead when it is clear to me that it is not a case that is going to be successful and she would end up with the costs of a trial as well as the costs that have already been incurred.”

HHJ Bloom thus refused the claimant’s application for relief from sanctions on the basis that there would be no point in granting that application when, even taking account of all the evidence that she had sought to rely on (notwithstanding its late filing), the case was unarguable, and the defendant’s application for summary judgment should therefore be allowed.

I have given the claimant permission to rely on amended grounds of appeal, drafted by counsel, and to advance her case as set out in two skeleton arguments, in particular as identified in Mr Chiffers’ supplementary skeleton argument of 20 November 2025. The defendant did not object to this course.

By her first ground of appeal the claimant essentially makes a fair hearing complaint. It is her case that she is a disabled person within the meaning of section 6 of the Equality Act 2010 (“EqA”), and a vulnerable person for the purposes of Civil Procedure Rules Practice Direction (“CPR PD”) 1A. She complains that HHJ Bloom:

“... made case management decisions to exclude evidence served by the Claimant and/or declined to grant the Claimant an adjournment despite the Claimant being in physical pain during the hearing due to her disability.” (ground 1 amended grounds of appeal)

In support of this contention, the claimant relies on the information she had provided to HHJ Bloom regarding the medical difficulties she had experienced between October 2023 and January 2024 and to her reference to on-going treatment (she informed HHJ Bloom that she had a hospital appointment at 4:00pm on 8 February 2024, although she subsequently cancelled that appointment so the hearing could continue that day). She also relies on a witness statement provided to me for the purposes of this hearing, dated 18 November 2025. While accepting that HHJ Bloom had a relatively wide discretion with regard to the case management of the hearing, it is the claimant’s case that adjustments could, and should, have been made:

“... the judge could have reserved her judgment and allowed written submissions from the Claimant ...” (paragraph 7, claimant’s skeleton argument in support of the appeal)

The second ground of appeal contends that HHJ Bloom erred in finding that the claimant’s claim had no real prospect of success; that, it is said, was based on

“an assessment of the evidence that cannot be reasonably explained and/or on manifest errors.” (ground 2 amended grounds of appeal)

Developing the second ground of appeal, the claimant complains that, having expressly referred to the exhortation that she must not conduct a mini-trial, that is precisely what HHJ Bloom did: (a) making assumptions about case management directions at trial with respect to limiting the statements from the authors of relevant emails (when the trial judge would inevitably ask the witnesses to update this information, so the evidence would not have been limited in the way HHJ Bloom envisaged), and not allowing the expert to attend for cross examination; (b) failing to consider the possibility that additional evidence would come out in cross examination of the claimant’s witnesses and/or permitted supplemental questions; (c) appearing to decide the case on the balance of probabilities; (d) opining that the claimant’s evidence would not be considered credible due to it diverging from her pleaded case.

The claimant further contends that HHJ Bloom gave undue deference to the defendant’s expert report, failing to consider that the court could depart from it, even absent any expert evidence called by the claimant: an expert witness does not usurp the role of the court as arbiter of the dispute. Moreover, the claimant says HHJ Bloom offered no analysis of the expert report and the assumptions it contained (e.g. that the claimant was not a competent business operator; as to how the rooms would have been used) and it would be open to a trial judge to prefer lay evidence over expert evidence if that was more credible, alternatively to adopt some, but not all, the assumptions made.

For the defendant it is contended that the claimant’s first ground of appeal was not arguable: there was no merit in the suggestion that HHJ Bloom had failed to appropriately consider any application to adjourn; the claimant was provided with a fair opportunity both to advance her case and to respond to the defendant’s application; she had a break over the lunch adjournment, after which she did not indicate she was in pain, or needed more time (although that had been offered to her), but continued to participate in the hearing, making full submissions to the court.

On the second ground of appeal, the defendant says that the claimant’s case speculates as to what evidence might turn up, contrary to the guidance in the case-law. HHJ Bloom had, however, correctly directed herself as to the test she was to apply and it was apparent that she then followed that direction: she did not conduct a mini-trial but (entirely properly) critically analysed the documents so as to understand the claimant’s case; as for directions regarding the evidence, she did not usurp the function of the trial judge but, in determining the application for relief from sanctions, had to decide the extent of the relief she would be prepared to grant (limited to the evidence filed and served for, and in advance of, the 8 February 2024 hearing); HHJ Bloom did not apply a balance of probabilities test, but considered whether the claimant had a real prospect of discharging the burden upon her; further, she made no finding as to the claimant’s credibility, only that her various statements were entirely speculative.

On the expert evidence, HHJ Bloom made no case management directions in this regard, but merely allowing for the possibility that leave might not be given for the expert to be called. HHJ Bloom was not unduly deferential to the expert, and no assumption was made as to whether his evidence would be accepted (in whole or part); she did, however, permissibly factor in the availability of the expert report when determining whether the claimant had a real – not fanciful – prospect of success. As for the particular criticisms made of the report, the expert had relied on the plans available to him, the claimant had not disclosed anything that would contradict that; the report allowed for a range of different models, but even if that which was most favourable for the claimant was assumed, the loss was still less than the monies she had already been paid.

Although HHJ Bloom did not refer to the EqA or to CPR PD 1A, it is apparent that she accepted that the claimant had had multiple health difficulties (“7. ... I have seen medical evidence. They are to do with heart failure, problems with her pelvis, extremely serious medical issues that involved a lot of medical attention”), and made allowances for the fact that the claimant was vulnerable by reason of her status as a litigant in person. Although no finding was made as to whether the claimant was a disabled person for the purposes of the EqA (because that was not a contention raised below), I have assumed (in the claimant’s favour) that, at the time of the hearing on 8 February 2024, she was to be treated as such and that HHJ Bloom had sufficient information to be aware of this.

Moreover, while there may be some debate as to whether the EqA placed any obligation on HHJ Bloom to make adjustments for the claimant as a disabled person (part 3 of schedule 3 exempts judicial functions from the duties and obligations of the EqA), a duty to make adjustments to the judicial process may derive from a number of other sources, namely: the overriding objective; the right to a fair hearing (article 6 of the European Convention on Human Rights, read in conjunction with the non-discrimination principles at article 14); the common law concepts of justice, fairness and fair hearing; the duty to ensure effective access to justice for disabled persons on an equal basis with others (article 13 UN Convention on the Rights of Persons with Disabilities); see the discussion in Rackham v NHS Professionals Ltd [2015] EAT 110, at paragraphs 32-36.

In the present case, because the issue of reasonable adjustments was not raised before HHJ Bloom, there is no finding as to what might have been required to address any disadvantage suffered by the claimant due to any disability suffered by her, or as to the reasonableness of any such measure. On her appeal, however, the claimant relies on the fact that she suggested that the hearing should proceed the following day, and identified that she was experiencing pain; she criticises HHJ Bloom for saying “no I have not got enough time tomorrow morning” and for then proceeding notwithstanding the claimant’s intimation that she was in physical pain; in her witness statement for this appeal, the claimant says that, from that point, “the rest of the hearing is somewhat of a blur”.

Having read the transcript of the hearing, I do not, however, consider that to be a fair characterisation of the relevant exchanges between the claimant and HHJ Bloom. As Mr Chiffers fairly acknowledged in submissions, the transcript provides the best evidence of what happened below, and it is accepted that I am entitled to rely on that in determining whether a fair process was followed.

Adopting that approach, I note, first, it was HHJ Bloom who raised the time-tabling issues, as she realised that the hearing before her would take longer than originally anticipated (in part because of the claimant’s late production of some 200-300 pages of documents) and she needed to accommodate another matter in her list. It was only when HHJ Bloom identified this difficulty, explaining that the other case was listed before her at 2:00 pm, that the claimant identified that she would be “more than happy to come back tomorrow”, explaining that she had a hospital appointment at 4:00 pm that day. Exploring the possibility of the hearing going into the next day, HHJ Bloom put some pressure on counsel for the defendant to make herself available if that was necessary, then turning back to the claimant, who clarified that she would be able to remain at court until 3:00 pm. On that basis, HHJ Bloom explained how she would accommodate the claimant by re-organizing her list for that afternoon, with the possibility that the hearing would then go into the following day:

“JUDGE BLOOM: So maybe the thing to do is to start at half past [one], I sit until 3:00 then I do my appeal [the other case in her list] and they will just have to wait. And if we are not finished, I start again tomorrow morning. ... at 10 o’clock.”

The claimant’s immediate response to that suggestion was not to say that she was in such physical pain this would not be possible, but that:

“MS STEWART: That is better, yes.”

It is right to say that the claimant subsequently went on to say:

“MS STEWART: Am I pushing my luck if I – so sorry, if I ask, could we do it tomorrow morning?”

It was in response to that question that the following exchange took place:

“JUDGE BLOOM: No, I have not got enough time tomorrow morning.

MS STEWART: Not enough time.

JUDGE BLOOM: I think I need a bit of time today.

MS STEWART: I am in a lot of pain.

JUDGE BLOOM: Yes, we are going to rise now. So you can have a wander round or do whatever you need to, get some painkillers. We will start again at half 1. Mainly you will be listening to what Ms Atkins has to say and if you feel you are not able to respond this afternoon then you can respond tomorrow morning and I then I can give judgment.”

Seen in context it is apparent that the reference to not having enough time the next day related to the difficulty of completing the hearing if HHJ Bloom simply adjourned until the following day.

Some further exchanges then took place between Ms Atkins and HHJ Bloom, and between the claimant and HHJ Bloom, before the lunch adjournment, but there is nothing to indicate that the claimant was unable to participate in the hearing; indeed, the claimant interjected to explain that she had not understood she needed to put questions to the defendant’s expert, but that she would place reliance upon her own business expertise (going on to provide details in this regard), and correcting HHJ Bloom to explain that this was a point she had made in one of her witness statements.

As for the position after the hearing resumed at 1:30 pm, the claimant gave no indication that she was in difficulties or that everything was “a blur”. On the contrary, it is apparent that the claimant followed the detail of counsel’s submissions, interjecting to correct Ms Atkins as to the dates on which work was undertaken on the premises. Moreover, although HHJ Bloom had expressly allowed for the possibility that the claimant might wish to take time to consider her submissions, and thus seek an adjournment of the hearing that day and return the following day, the claimant did not in fact request that course be adopted, but voluntarily chose to cancel her hospital appointment so she could proceed to make her submissions in response to Ms Atkins that afternoon. In so doing, the claimant showed no sign of the hearing being a “blur”, going on to provide detailed information as to what she contended to be her business expertise, and in respect of what she said was demonstrated by the email evidence she relied on.

A further break was allowed during the afternoon, as HHJ Bloom had to deal with the other matter in her list, and the claimant then had the opportunity to make any additional submissions. Again, nothing was said about the need for an adjournment, nor was it suggested that the claimant was still in pain or had been prejudiced in her participation during the hearing.

As I have indicated, I accept that securing a fair hearing can require proportionate measures to be taken to ensure, so far as practicable, that parties are on an equal footing and can fully participate in proceedings; I further accept that such measures might include reasonable adjustments to address disadvantages suffered by parties with disabilities or impairments or particular health conditions. In determining what measures are to be taken at a court hearing, considerable discretion must inevitably be afforded to the judge who is charged with case managing the proceedings; that is particularly so where no formal applications or requests have been made in advance (which might otherwise have allowed for a ground rules hearing at an early stage of the proceedings), and the judge has to make their own assessment of the situation as the hearing proceeds. Even allowing for the broad case management discretion vested in the judge below, however, the ultimate question on appeal must be whether the process adopted, or the decision then reached, was unjust.

In the present case, I bear in mind that the claimant had been legally represented up to October 2023 and, on her own case, had had at least three months to respond to the defendant’s application. Moreover, notwithstanding the difficulties (not limited to health issues) that she experienced, the claimant had been able to prepare a witness statement for the hearing on 8 February 2024 and had, albeit at a late stage, submitted a significant number of documents, which she was then able to go through in detail during her submissions. The claimant was not denied the ability to rely on any of the documents submitted; notwithstanding the potential prejudice to the defendant by allowing reliance to be placed on this late disclosure, HHJ Bloom made allowance for the claimant’s vulnerabilities (as a litigant in person and as someone who had faced health and other difficulties when seeking to prepare for the hearing) and permitted her to not only pursue her application for relief from sanctions but also to rely on the additional 200-300 pages of documents she had filed overnight.

As for the hearing itself, it is apparent from the transcript that the claimant was able to address the court at length and to fully participate in the proceedings. She was given full opportunity to advance her case on her application for relief from sanctions and to respond to the defendant’s application, both in its written form and as advanced in oral submissions. Although it is right to say that the claimant asked to sit down when addressing the court (a request immediately granted by HHJ Bloom), and referred to being in pain on one occasion shortly before the lunch adjournment, there is nothing that would suggest that she was in continual pain throughout the hearing, still less that it became a “blur” at any point. Further, when the claimant did refer to being in pain, HHJ Bloom made clear that a break would be taken and that she should take the time to walk around and to take any pain relief required; it was further explained that after the lunch break, the claimant would be listening to the defendant’s counsel’s submissions and could then ask for more time before responding, even coming back the next day to do so if that was what she would prefer. In the event, the claimant did not take up that suggestion, but explained she had cancelled her hospital appointment, and made arrangements with her children’s nanny to ensure childcare cover, so she could continue with the hearing past 3:00 pm.

Having been able to fully consider the transcript of the hearing below, I am clear that this first ground of appeal is not arguable. HHJ Bloom made no case management decisions to exclude evidence served by the claimant nor did she decline to grant any request for an adjournment by the claimant. More generally, while demonstrating respect for the claimant’s autonomy, HHJ Bloom made appropriate allowances for her as a litigant in person with a number of health issues, and I am satisfied that there is no arguable basis for considering the process adopted was unjust, or, more generally, that the hearing on 8 February 2024 was unfair or in breach of any duty owed to the claimant whether under the EqA, the CPR PD 1A or any other principle of fair hearing. I duly dismiss the appeal on ground 1.

Although the defendant had made an application for the claimant’s claim to be struck out for breaches of the directions of the court, HHJ Bloom took the view that the strike out application might be answered by a grant of relief from sanction. In considering whether to grant the relief sought by the claimant, however, HHJ Bloom permissibly saw the question raised by the defendant’s alternative application for summary judgment had relevance on the third of the Denton questions, as to whether the grant of relief from sanction would be just in all the circumstances of the case. No criticism is, or could be, made of that approach.

Pursuant to CPR 24.3, HHJ Bloom was thus concerned with the question whether it could be said that the claimant had no real prospect of succeeding on her claim (there is no suggestion that this was a case where there was any other compelling reason why the claim had to be disposed of at trial). That question was, however, being considered in the context of HHJ Bloom’s determination of the claimant’s application for relief from sanction, in particular in relation to her failure to serve witness evidence. In describing the limitations on the evidence that the claimant would be permitted to adduce, HHJ Bloom was not appropriating the function of the trial judge but was exercising the jurisdiction vested in her as the judge required to determine what, if any, relief might be granted to the claimant. For completeness, the further suggestion made by the claimant, to the effect that HHJ Bloom usurped the power of the trial judge in relation to whether or not to allow the expert to be called to give evidence, that is simply incorrect; she made no such direction.

Returning to the principles that are to be applied when considering summary judgment, these were identified by Lewison J in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) at paragraph 15. In summary (and so far as relevant for present purposes): (i) the court must consider whether the claimant has a “realistic”, as opposed to a “fanciful”, prospect of success; (ii) a “realistic” claim is one that carries some degree of conviction, that is to say, is more than merely arguable; (iii) in reaching its conclusion, the court must not conduct a “mini-trial”; (iv) that does not mean, however, the court must take at face value and without analysis everything a claimant says in their statements - in some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents; (v) however, the court must take into account not only the evidence before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial; (vi) although a case may not be particularly complex, that does not mean it should be decided without the fuller investigation into the facts that is possible at trial; (vii) it is, however, not enough to argue that the case should go to trial because something may turn up.

Although the court must not conduct a mini-trial, it is thus allowed to critically consider documentary, witness and expert evidence to determine whether a claimant’s factual case is contradicted by the documents that are available (or likely to become available) at trial; it is not an error of approach to conduct a critical analysis of the available documents in clear cut cases, provided the court does not engage in a fact-finding mission or assess the relative weight of the evidence before it. As Cockerill J (as she then was) observed in King v Stiefel [2021] EWHC 1045 (Comm):

“21.

The authorities ... make clear that in the context of summary judgment the court is by no means barred from evaluating the evidence, and concluding that on the evidence there is no real (as opposed to fanciful) prospect of success. It will of course be cautious in doing so. It will bear in mind the clarity of the evidence available and the potential for other evidence to be available at trial which is likely to bear on the issues. It will avoid conducting a mini-trial. But there will be cases where the Court will be entitled to draw a line and say that - even bearing well in mind all of those points - it would be contrary to principle for a case to proceed to trial.”

Further, as was observed in Al Sadik v Clyde & Co LLP [2024] EWHC 818 (Comm), at paragraph 190, the mere fact that the court has to consider lengthy documents to understand the parties’ respective cases, does not mean that summary judgment is inappropriate or that the court has conducted a mini-trial.

In Stiefel, Cockerill J went on to emphasise that, although the court must bear in mind the potential for other evidence to become available:

“22.

... it is not enough to say, with Mr Micawber, that something may turn up.”

On this question, in Okpabi v Royal Dutch Shell plc [2021] UKSC 3, at paragraph 128, it was made clear that the approach is not to ask whether there is a clear prospect that new material will become available which is likely to give the claimant a real prospect of success, but whether there are reasonable grounds for believing that disclosure may materially add to or alter the evidence relevant to whether the claim has real prospects of success.

In the present case, HHJ Bloom was faced with a claim that, absent the late disclosure overnight on 7/8 February 2024, was almost entirely uncorroborated by any evidence (the claimant had made some disclosure in April 2023, but that did not include documents to support her claim for business interruption losses, such as business accounts, bank statements (apart from those that were heavily redacted) or evidence of room bookings prior to the flooding). Moreover, as I have already observed, HHJ Bloom was addressing the application for summary judgment as part of the third stage in the Denton test, when considering whether to or not to grant the claimant relief from sanction so as to be able to rely on her late disclosure. The consideration of the available material in this context did not amount to a mini-trial of the evidence but was an entirely permissible analysis of the claimant’s factual case in the light of the documentation available, or that could reasonably be expected to become available at trial (a matter of weeks away).

More specifically, HHJ Bloom did not make any finding regarding the claimant’s credibility. Her observation relating to the way in which the claimant’s case as to the sum of her losses had changed during the proceedings went to the speculative nature of the claim. That was a valid consideration when assessing whether the claim had a realistic prospect of success or was merely fanciful, whether it carried some degree of conviction or was simply based on assertion.

As for the likely evidence of other witnesses, HHJ Bloom expressly allowed that this further evidence might be given at trial: notwithstanding the fact that no statements had been provided by those who had sent the emails relied on by the claimant, and that the messages dated back to 2021, it was assumed (in the claimant’s favour) that the individuals in question would indeed provide statements confirming those emails and this evidence was duly taken into account. What HHJ Bloom was not required to do, however, was to speculate on what further evidence those witnesses might be able to provide if asked to provide updating information at trial. First, as I have already said, HHJ Bloom was entitled to see the witness evidence as being limited to that allowed if the claimant were to be given relief from sanction (not least as she was making her decision on the claimant’s application a matter of weeks before the date listed for the trial). Secondly, and in any event, the approach suggested by the claimant fails to engage with the relevant test, that is: whether there were reasonable grounds for believing that (further) disclosure might materially add to or alter the evidence relevant to whether the claim had real prospects of success; HHJ Bloom was not required to speculate as to whether new material might become available if (hypothetically) further questions were permitted to be asked of these witnesses at trial or additional information emerged as a result of cross-examination.

As for the expert report relied on by the defendant, acknowledging that this was evidence available to the defendant in support of its case, did not suggest that HHJ Bloom was giving undue deference to the expert or that she was allowing that this might usurp the court’s function in determining the claim. On the contrary, HHJ Bloom allowed that the claimant might give evidence at trial as to her business experience, seeking to contradict the assumptions made by the defendant’s expert; she was, however, entitled to critically analyse the claimant’s case in this regard, noting that the claimant had accepted that she did not have any contemporaneous documents in her possession to support what she said.

Notwithstanding the difficulties the claimant had herself identified, HHJ Bloom allowed for the possibility that, if the defendant’s expert gave evidence at trial, the claimant might be able to ask questions of him and elucidate evidence of assistance to her case. In considering this likelihood, HHJ Bloom was not, however, required to speculate on what other evidence the expert might provide had he been able to consider different plans or assumptions as to capacity for which there was simply no evidence. She was, further, entitled to have regard to the range of models constructed by the expert and to take account of the fact that, on the construction most favourable to the claimant, he still reached the conclusion that the sums that had already been paid to the claimant outweighed any losses that she could be said to have suffered.

More generally, it is clear that HHJ Bloom applied the correct test under CPR 24.3, when determining whether summary judgment should be entered for the defendant on this claim. Not only had she expressly referred to the correct test, and to the guidance provided in the case-law, she had plainly had that firmly in mind when considering whether it could be said that the claimant had no real prospect of succeeding on this claim. Criticism is made of the use of the word “speculative”, rather than “fanciful”, but I am unable to see any force in this point. First, this was an ex tempore judgment addressing the application for summary judgment alongside an application for relief from sanction and has to be viewed in that context. Second, given that HHJ Bloom had expressly reminded herself of the language used at CPR 24.3, I would not readily infer that she then lost sight of the test she was to apply in this regard. Third, in the circumstances of this case, I am not persuaded there was in fact any material difference between “speculative” and “fanciful” in this context.

Having considered the individual points identified by the claimant, and also stepping back to consider this judgment in the round, I do not find that an arguable ground of appeal has been identified in this regard. For all the reasons provided, I therefore refuse the second ground of appeal.

The renewed application for permission to appeal is duly dismissed.