Background
Edith Louis, acting as a litigant in person, sought the discharge of two fixed charge receivers appointed by Topaz Finance Ltd over her residential property at 36 Hereford Road, London under the Law of Property Act 1925. She advanced two principal claims: first, that Topaz had orally agreed to accept reduced mortgage payments for three months while she resolved difficulties letting the property, and had promised not to appoint receivers provided she paid those reduced amounts; and second, that there was a separate oral agreement to terminate the receivers’ appointment upon the occurrence of certain circumstances. HHJ Mark Raeside KC, sitting in the County Court at Central London, dismissed her claim in December 2024. He found no documentary support for either alleged agreement despite a substantial contemporaneous record — including transcripts of recorded telephone calls — and applied the principles from Gestmin SGPS S.A. v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) regarding the fallibility of human memory, concluding that Ms Louis’s recollections were inaccurate.
Ms Louis appealed to the High Court before Mr Justice Thompsell, seeking a full retrial on the basis that the trial was unjust due to serious procedural or other irregularities under CPR 52.21(3)(b). She advanced three grounds of appeal. A proposed fourth ground — that Judge Raeside had adopted an unfair temperament and approach toward her as a litigant in person — was refused consideration at the outset of the appeal hearing, as it had not been included within the grounds for which Fancourt J had granted permission to appeal.
None of the three permitted grounds challenged the correctness of Judge Raeside’s factual findings or alleged any error of law. Each was advanced individually and cumulatively as demonstrating a serious procedural irregularity rendering the outcome unjust within the meaning of CPR 52.21(3)(b). The court reviewed the governing authorities, including Frey v Labrouche [2012] 1 WLR 3160, Dunbar Assets PLC v Dorcas Holdings Ltd [2013] EWCA Civ 864, Keith Davy (Contractors) Ltd v Ibatex Ltd [2001] EWCA Civ 740, Popely v Poplar Estates Ltd [2022] EWHC 2758 (Ch), and Serafin v Malkiewicz [2020] UKSC 23.
The Court’s Holding
Mr Justice Thompsell dismissed all three grounds of appeal. He confirmed the applicable three-stage test under CPR 52.21(3)(b): (i) was there a procedural or other irregularity; (ii) was it serious; and (iii) did it render the decision unjust? Drawing on the authorities, he noted that injustice is not automatically established merely because a serious irregularity is found; the court must assess whether the decision was correctly reached, even though that question is not determinative. Cases in which appeals have succeeded on pure procedural grounds — without the appellate court endorsing a contrary outcome — have involved either a complete unjustified denial of the ability to present a case or circumstances where the irregularity infected the safety of the decision itself.
On Ground 1 — that Judge Raeside had pre-emptively closed his mind to the weight of oral evidence — the court acknowledged that certain remarks made by the judge at the outset of trial (“courts of this sort decide cases on the documents”) might have suggested an absolute preference for documentary evidence. However, other statements made plain that the judge did intend to evaluate Ms Louis’s credibility, and he heard her evidence for most of a day. Crucially, the judge’s written judgment expressly stated there was no presumption that documents prevail over witness statements, and his analysis applied the Gestmin framework properly to the oral evidence actually given. Ground 1 therefore failed.
On Ground 2 — that the judge denied Ms Louis an opening while effectively affording one to respondents’ counsel through a lengthy pre-trial discussion — the court found no procedural unfairness. Although Judge Raeside engaged in an extended exchange with counsel about the issues and timetable while directing Ms Louis more tersely, he did invite her to comment and she replied that she had nothing to add. The court acknowledged that Ms Louis was at a disadvantage through inexperience, but found no evidence that any abruptness during the proceedings prevented her from advancing her case fully in closing submissions. The court noted that Judge Raeside’s conduct frequently fell short of the guidance in the Equal Treatment Bench Book, but this did not reach the threshold of serious irregularity causing injustice.
Key Takeaways
- CPR 52.21(3)(b) sets a high bar: an irregularity must be not merely procedural but serious, and must have rendered the outcome unjust — it is not enough to show the trial could have been conducted better.
- A judge’s emphasis on documentary evidence in the Gestmin tradition does not constitute a serious procedural irregularity where the judgment shows that oral evidence was in fact considered and weighed.
- Differential engagement with experienced counsel versus a litigant in person at the start of trial is not inherently unfair, particularly where the litigant is given an opportunity to raise concerns and declines to do so.
- Failure to follow Equal Treatment Bench Book guidance on dealing with litigants in person may attract criticism without necessarily rising to the level of a serious irregularity causing injustice under CPR 52.21(3)(b).
- A proposed ground of appeal not covered by the permission order cannot be introduced informally at the appeal hearing, even late in the day.
Why It Matters
This decision reinforces the strict limits of the procedural irregularity ground under CPR 52.21(3)(b), clarifying that appellate courts will intervene on this basis only where a litigant has been wholly denied the opportunity to present their case, or where the irregularity casts genuine doubt on whether the lower court’s conclusion was safely reached. Judicial abruptness and departures from best practice in managing litigants in person, while regrettable, will not ordinarily suffice.
The case is also a reminder to trial judges of their obligations under the Equal Treatment Bench Book when presiding over hearings involving litigants in person. While Mr Justice Thompsell found those obligations were not fully met here, he declined to allow the appeal, illustrating that process-based appeals face a high threshold even where judicial conduct leaves something to be desired — a point of practical significance in an era of rising self-representation in civil litigation.