Background
Pawel Szwed, a cyclist, was knocked from his bicycle in January 2018 when the insured of Aviva Insurance Ltd opened a van door into his path. Aviva admitted liability. Szwed, who is Polish-speaking and unrepresented since his solicitors came off the record in late 2022, valued his claim at nearly £1 million; Aviva’s counter-schedule put the maximum recovery at under £1,000. The underlying County Court trial was listed to commence on 29 June 2026 — the fifth attempt to bring the case to trial after repeated vacated windows.
Szwed had brought two interlocutory appeals against County Court case management orders: one challenging an unless order made by Recorder Glancy KC in July 2023 requiring him to demonstrate that his orthopaedic and ENT experts were willing to engage in the joint statement process, together with a permitted increase to Aviva’s costs budget; and a second challenging HHJ Hellman’s December 2023 refusal to cut Aviva’s costs budget on the ground that Aviva had acted oppressively. Both appeals were automatically struck out in April 2025 because Szwed failed to comply with an unless order from Sir Stephen Stewart requiring him to file a witness statement explaining the continuing relevance of the appeals in light of progress in the underlying proceedings.
Ritchie J had refused to extend time to comply with that unless order in March 2026, confirming the strike-out of the first appeal. Szwed then applied to set aside Ritchie J’s order and to reinstate both appeals. Mrs Justice Hill heard the application on 3 June 2026, with Szwed appearing in person through an interpreter and Christopher Walker of counsel appearing for Aviva.
The Court’s Holding
Mrs Justice Hill dismissed the application, applying the three-stage Denton v TH White Ltd [2014] EWCA Civ 906 framework to what was, in substance, a renewed application for relief from sanctions. At the first stage, the default was serious and significant: the appeals had a protracted history dating to 2023 orders, Szwed had already been afforded considerable procedural latitude including multiple extensions, had never filed a CPR-compliant appeal bundle, and had previously failed to comply with a similar direction from Martin Spencer J. At the second stage, the explanation — that Szwed’s mobile phone had been stolen in late March 2025, depriving him of access to court emails — was unpersuasive: no corroborating evidence such as a police report was produced, alternative means of access existed, and the volume of material Szwed had filed throughout the proceedings demonstrated a capacity to obtain assistance in English.
At the third stage, the court found the appeals substantially or entirely academic. The unless order that formed the subject of the first appeal had been superseded when HHJ Hellman granted Szwed relief from sanctions in December 2023, and the joint expert process had since been completed. The costs budget challenges were also largely academic because Szwed enjoyed Qualified One Way Costs Shifting (QOCS) protection, meaning any adverse costs orders in Aviva’s favour could not be enforced without the court’s permission. Crucially, the court held that both appeals were “very weak” on the merits: the Recorder’s factual findings about responsibility for the breakdown of the joint expert process did not amount to a material mistake of fact of the kind recognised in E v SSHD [2004] EWCA Civ 49 (which requires the mistake to be uncontentious and objectively verifiable), and the discretionary costs budget decision attracted the high threshold applicable to appeals against case management decisions. The appeals therefore remained struck out.
Key Takeaways
- The Denton three-stage test applies to applications for extensions of time to comply with court orders, as confirmed by R (Hysaj) v SSHD [2014] EWCA Civ 1633 and Lakatamia v Su [2019] EWCA Civ 1626; repeated failures to comply across a prolonged procedural history weigh heavily against relief at stages one and three.
- An interlocutory appeal will be treated as academic — and reinstatement refused — where the order under challenge has been superseded by subsequent events in the lower court, even if the appellant contends that adverse findings within it may affect future proceedings.
- A litigant in person is not relieved from the obligation to comply with unless orders: courts expect that alternative means of obtaining assistance or communicating with the court will be explored, particularly where the litigant has demonstrated an ability to file extensive documentation throughout the proceedings.
- The merits of an appeal are generally not central to relief from sanctions applications, but where the court can assess without detailed investigation that the grounds are “very weak” — including because the challenge targets a discretionary case management decision — that assessment can tip the balance against relief at stage three.
Why It Matters
This decision reinforces the courts’ robust approach to compliance with procedural deadlines in appeals, particularly interlocutory appeals that risk delaying trials in the lower court. It signals that the combination of a weak merits case, a largely academic subject-matter, and a pattern of non-compliance will defeat even sympathetic relief from sanctions applications by unrepresented parties, and that QOCS protection may itself reduce the practical stakes of an appeal against a costs budget ruling to the point of rendering it academic.
The judgment also illustrates how the “continuing relevance” of an interlocutory appeal requires ongoing scrutiny: where the lower court has itself granted relief from a sanction, or where events have otherwise overtaken the order under challenge, the appellate court will question whether any live issue remains and may decline to invest further resources in the appeal — especially where the underlying trial is imminent and no stay of the lower court proceedings has been sought.