Denise Bell-King, R (on the application of) v Network Rail Infrastructure

Mr Justice Sweeting: Introduction

1. On 4 January 2017 the Claimant, Denise Bell-King, tripped on a raised edge between platforms at London Waterloo Station. The Claimant brought a personal injury claim against the Defendant in the Central London County Court. The Claimant alleged that the accident had exacerbated her pre-existing fibromyalgia, ME, and Chronic Fatigue Syndrome symptoms. The Defendant, Network Rail Infrastructure Limited, admitted primary liability but contested causation of injury.

2. The personal injury claim was subject to several case management orders, including 'unless orders' for the Claimant to file a detailed Schedule of Loss and provide signed forms of authority for the Defendant to access her medical records, with deadlines in April 2019.

3. The current proceedings concern the Claimant's renewed application for permission to bring a judicial review claim. This application seeks to challenge the decision made by His Honour Judge Lethem on 22 July 2021 to strike out the Claimant’s personal injury claim due to non-compliance with an unless order to file and serve a hearing transcript (in fact a “decision” confirming that the claim had already been struck out). This was in the context of an appeal against the Judge’s earlier order striking out the claim for noncompliance with court orders.

4. The Defendant, Network Rail, resists the Claimant's renewed application for permission on several grounds, including that the claim is out of time, the grounds are not arguable, and that Network Rail has nothing to do with the decision of HHJ Lethem, as the judicial review should be brought against the Central London County Court. The Defendant contends that the claim is weak, and that the Claimant has failed to comply with court orders and directions throughout the proceedings.

5. The Claimant also disputes a costs order made by Deputy High Court Judge Dexter Dias KC (as he then was) on 7 October 2022, summarily assessing costs against her when refusing permission for judicial review.

6. The Claimant is in her 60s and on her own account, supported by medical evidence referred to in the proceedings, is in poor health. She considers herself disabled and vulnerable and requires that reasonable adjustments should be made for her under the Equality Act 2010 . I extended the time allotted for the hearing before me in order that she could have breaks when required and told her at the outset of the hearing that she could make her submissions whilst sitting, as she then did. I should record that Mr Ive, counsel for the Defendant, was also assiduous in discharging the additional responsibilities that fall upon counsel whose opponent is a litigant in person, particularly one with a number of medical problems. The Personal Injury Claim

7. The proceedings have a protracted history which is due in no small part to the Claimant's approach to litigation. The claim was initially allocated to the multitrack by District Judge Brooks on 5 July 2018 but was struck out by District Judge Lightman at a Case Management Conference on 20 September 2018.

8. On 27 September 2018, the Claimant applied for reinstatement of her case. This application was heard by Deputy District Judge Hood on 11 March 2019, who reinstated the claim and allocated it to the fast track. Deputy District Judge Hood made two 'unless' orders. First, that unless the Claimant filed and served a detailed Schedule of Loss, including details of all past and future losses claimed, by 1 April 2019, her claim would be struck out. Second, that, if the Claimant failed to provide the Defendant with signed forms of authority by 1 April 2019, her claim would be struck out. By notice sent from the Court, a one-day trial was fixed for 9 January 2020.

9. The Claimant provided the signed forms of medical authority by the deadline but failed to file a Schedule of Loss. Deputy District Judge Hood had also ordered standard disclosure by list by 15 April 2019 and service of witness statements by 13 May 2019. The Claimant failed to file a list of documents by the stipulated date and did not file any witness statement.

10. On 28 May 2019 the Defendant made a without notice application submitting that the Claimant had not provided evidence of her losses in the appropriate form and with sufficient particularisation. District Judge Avent determined the application and made an unless order on 1 July 2019, which required the Claimant to serve various types of evidence by 4pm on 14 August 2019. This included orders relating to the Schedule of Loss (failure resulting in a strike out of the special damages claim), witness statements (failure resulting in no permission to rely on witness evidence), and details regarding the Claimant's MBA course (failure resulting in a strike out of the claim for loss of MBA fees).

11. It is not clear whether the Claimant was given an opportunity to respond to the without notice application before the order was made but on 21 July 2019, the Claimant applied for an extension of time and to vary District Judge Avent's unless order. This application was refused on paper by District Judge Avent on 6 August 2019. The reasons given included that the unless order did not expire until 14 August 2019, leaving over three weeks to comply, and that the Claimant had not provided any indication of the length of extension sought or explanation for her delay. The Defendant's acknowledgment of service in the judicial review proceedings indicates that the Defendant did not receive this refusal order until 13 August (i.e. one day before the relevant deadline under DJ Avent’s unless order would expire). It is not clear when the Claimant received the refusal order.

12. The deadline of 14 August 2019 for compliance with the unless orders of 1 July 2019 passed without the Claimant fully complying. Consequently, her claim was, on the face of the order, struck out as at 4:01pm on that date. On the same day, the Claimant made a further application to vary District Judge Avent's unless order, citing illness. The hearing of the application was listed for 20 November 2019.

13. However, on 19 November 2019 and notwithstanding the operation of the order of 1 July striking out the claim, a Pre-Trial Review took place, which the Claimant did not attend. District Judge Avent made an order declaring that the Claimant's claim had been struck out on 14 August 2019. It appears that District Judge Avent was not aware of the application hearing listed for the next day.

14. The following day, 20 November 2019, District Judge Avent heard the Claimant's application. He set aside his 19 November order and ordered the Claimant to file and serve a witness statement by 20 December 2019 detailing her compliance with the 11 March and 1 July 2019 orders. He also vacated the trial, stayed all other proceedings, and relisted a hearing of the Claimant’s 21 July and 14 August applications for 19 February 2020.

15. The Claimant provided a witness statement by email dated 20 December 2019. This was not in a form compliant with the Civil Procedure Rules or Practice Directions and did not coherently demonstrate her compliance with the prior orders or explain her failures.

16. At a hearing on 19 February 2020, District Judge Avent dismissed the Claimant's applications and held that the claim remained struck out. Applying the three-stage test from Denton v TH White Ltd [2014] EWCA Civ 906 (although no application for relief from sanctions had been made), he found the breaches serious and significant with no good reason given and noted that the Claimant had been afforded considerable latitude. He observed that while she may have provided a number of documents, she had not done so in a way that was of any assistance or help to the Defendant.

17. It appears that at the hearing the Claimant outlined her medical and logistical difficulties and explained that she did not provide certain records because she did not want any of them to be in the public domain. The District Judge recognised that the Claimant may not have been aware that there was an implied undertaking that records provided to the Defendant in the proceedings would not be used other than in the proceedings and that a request for such records was not unusual in a personal injury claim. Nonetheless, he considered that the Claimant was a person of intelligence and sophistication and, whether through ignorance or wilful default, had decided not to comply with the various unless orders. He observed that the Claimant appeared to have imposed her own decisions regarding the litigation's progress.

18. The Judge’s overall observations about the conduct of the litigation by the Claimant appear to have been fairly open to him: “We now arrive at a point, some 26 months after the issue of proceedings, when we are no further forward now than we were before. That has to be a matter of serious concern, because what it means is that one way or another this case has disproportionately taken up court time. In fact, there have now been four hearings in relation to this matter and several applications before we have even relisted the trial, the initial trial date having been (break in audio 15 secs) and no medical evidence for which permission has been given and so we are effectively back at square one.”

19. The Claimant sought permission to appeal the 19 February 2020 ruling. Her Appellant’s Notice is dated 11 March 2020 and notes that the Judge’s order had not arrived. She asserted that she did not wish to miss an appeal deadline and so was filing the Notice in the absence of the order. However, it appears that the Notice was not in fact filed until 12 June 2020. Her grounds of appeal were that she did not have a fair hearing. She relied on the Equality Act 2010 and Human Rights Act 1998 . She contended that she is disabled, was disadvantaged as a litigant in person, that she cried during the hearing and had no McKenzie friend. His Honour Judge Monty QC refused permission on the papers on 17 August 2020, finding the Appellant's Notice had been filed out of time. The order notes that an illegible copy of the notice had been sent to the court on 22 of April 2020, suggesting earlier attempts to file. The Judge also observed that the grounds of appeal did not explain how it was said that District Judge Avent erred in law or on procedural grounds or why his order was wrong.

20. The Claimant made a renewed application for permission to appeal. An application notice had not been provided but there is an email dated 25 April 2020 from the Claimant to The Central London County Court indicating that she wished to have an oral hearing. The email says that her appeal was filed by 19 March and that the June notice was a refiling requested by the court. The renewal hearing was held remotely before Her Honour Judge Baucher on 20 November 2020. The Defendant was not required to, and did not, attend. Judge Baucher granted the Claimant permission to appeal out of time and ordered that she file a transcript of the 19 February hearing by 4pm on 22 January 2021, recognising that her complaints were about the conduct of the hearing itself.

21. On the 15th of January 2021 the Claimant submitted a form requesting the preparation of a transcript at public expense which was subsequently approved. She was informed of this by letter from the court dated the 28th of January 2021.

22. His Honour Judge Lethem made an 'unless' order on 27 May 2021, requiring the Claimant to file and serve a transcript of the 19 February 2020 hearing by 4pm on 16 July 2021 following non-compliance with the previous order made by Judge Baucher.

23. On 30 June 2021 the Claimant wrote to Judge Lethem as follows: “I think there is some mistake in that: the transcripts were not complete and a copy was returned by myself via email to Mr Alfonso and yourself - beyond which I have had no further notification that the full transcript of the hearing (where I broke down) and was severely disadvantaged (as I could not represent myself adequately) and it is this part of the hearing which was not included on the transcripts. This missing part of the hearing is what my appeal is based upon, and a full transcript needs to be delivered to you so you can make the correct judgement in whether reasonable adjustments were made to me as I qualify under The Equality Act, 2010, for protected characteristics.”

24. The Claimant failed to comply with HHJ Letham's unless order by the deadline of 16 July 2021. The County Court communicated to the Claimant on 22 July 2021 that HHJ Lethem was of the view that the claim had been struck out by operation of his 27 May 2021 order. This “decision” of 22 July 2021 is the subject of the Claimant's judicial review claim. The letter to the Claimant set out Judge Lethem’s response to the email of 30 June as follows: "l have read the email of the Appellant sent on 30th June 2021 @ 12:28 and copied into BLM solicitors. The history of the matter is that the complaint is of the conduct of the hearing at the lower court. This is neatly summarised by the Appellant in her email when she points out that she broke down, was severely disadvantaged and could not represent herself adequately. She makes the point that this is the part of the hearing that is the basis of the appeal and that there is no transcript of this part of the hearing, which is essential. This is the root of the issue and why this appeal has now been struck out. HHJ Baucher recognised that she needed a transcript of the hearing not the judgment. (see her order of 20th November 2020). On the 27th of January 2021 it was agreed that this could be provided at public expense. The transcript provided (and I assume requested) was not of the hearing but of the judgment. ln short the Appellant provided the wrong transcript. On the 27th of May 2021 the file was referred to me to consider the application for permission to appeal. I appreciated that there had still been no compliance with the order of HHJ Baucher. I pointed out the error and wanted to achieve two ends: (a) to give the Appellant a proper chance to rectify the error with the transcribers, now she knew of the problem and (b) to provide a proper timetable in accordance with the Overriding Objective for a matter that had been going on for far too long. Thus, I made the order I did. It is clear that the Appellant has not complied with my order, and I am afraid it took effect and the appeal has been struck out." The Judicial Review Proceedings

25. The Claimant's initial judicial review claim form was dated 15 February 2022. However, it appears the Claimant had made several unsuccessful attempts to file her judicial review Claim Form with the Administrative Court Office (“ACO”) prior to this. Her first attempt appears to have been in October 2021. Subsequent attempts in February and March 2022 were returned unissued by the ACO, primarily because the Claim Form referred to a decision of 20 July 2021, and no such document had been provided.

26. The Claimant's Judicial Review Claim Form was finally issued by the ACO, on 4 July 2022. The Defendant was served on 12 July 2022. The Defendant filed and served its Acknowledgment of Service and Grounds of Defence on 2 August 2022.

27. The Claimant's Application for judicial review was refused on paper by Deputy High Court Judge Dexter Dias KC (as he then was) on 7 October 2022. He found that the Claimant had brought the claim against the wrong defendant. He observed that any challenge to the County Court would, at the time the claim was brought, have already been out of time. Permission was also refused because there was no prospect whatsoever of any public law remedy against Network Rail Infrastructure Limited in respect of HHJ Letham's decision. The Claimant was ordered to pay the Defendant's costs summarily assessed in the sum of £1,406.00. The Renewal Application

28. On 17 October 2022, the Claimant sought to renew the application for permission. The Form 86B, seeking a renewal, was initially sent by email as a photograph and was served out of time when a hard copy was received by the ACO on 27 October 2022. The Claimant objected to the costs order in emails sent on 10 October and 20 October 2022.

29. On 8 November 2022, the Administrative Court issued standard directions for the renewed application, ordering a 30-minute hearing and requiring the Claimant to lodge an electronic bundle within 14 days. The Claimant stated she could not meet the deadline due to her health.

30. The matter was subsequently referred to Deputy High Court Judge Jonathan Moffett KC due to the Claimant's failure to file the bundle. On 27 June 2023, DHCJ Moffett KC made an unless order requiring the Claimant to file and serve an electronic bundle by 21 July 2023, or her claim would be struck out. The Claimant made an application seeking further time to lodge the bundle, stating it was 'in store' until September 2023. The Defendant responded on 15 August 2023, requesting the claim be dismissed pursuant to DHCJ Moffett KC's order.

31. By an order dated 6 November 2024, Mr Justice Foxton granted relief on the Claimant's application for an extension of time to lodge the bundle. He made a series of orders to ensure that the application could procced without delay. He ordered that the Defendant should prepare the electronic hearing bundle and directed that the costs order made by DHCJ Dexter Dias KC was stayed. He further ordered that the Claimant's emails of 10 and 20 October 2022 should stand as her written cost's objections, that the Defendant should serve any response, and that the Claimant's objections to costs would be considered at the oral hearing for renewal. He also observed that it would be open to the court at the renewal hearing to consider giving directions for the amendment of the Claim Form, if appropriate, to identify the Central London County Court as the Defendant with Network Rail as an Interested Party.

32. On 26 November 2024, an email was sent listing the renewal hearing for 25 March 2025. On 11 February 2025, the Claimant emailed the Court stating she did not have counsel yet and the hearing might need to be put back. On 21 March 2025, I gave a preliminary written ruling refusing the Claimant's application to adjourn mainly because very little information had been provided and the Claimant appeared to be proceeding on the basis that her application would be allowed without question because she was a litigant in person.

33. The hearing was originally listed for 25 March 2025. The Claimant did not appear, although the Defendant was represented. Prior to the hearing, the Claimant had again requested an adjournment. In the circumstances, I put the hearing back to 10:30 am on Friday 28 March 2025. The period for filing the Claimant's skeleton argument was extended until midday on Thursday 27 March 2025.

34. On 26 March 2025, I refused the Claimant's further application to adjourn. The Claimant had already, in effect, procured the adjournment sought and had given an ever-shifting account of when funds for counsel would be available. I observed that the Claimant had known about the hearing date since November 2024 and had not provided any information about steps taken by her to instruct counsel. I indicated that it was not in the interests of justice or fair to the Defendants to embark upon rolling adjournments for unexplained reasons.

35. At the hearing on 28 March 2025, the Claimant attended in person and applied for another adjournment. I reluctantly acceded to that request and adjourned the hearing until 30 April 2025. Directions were given for the filing of a witness statement by the Claimant regarding the steps taken to secure counsel and for the filing of skeleton arguments. The hearing on 30 April 2025 was listed with a half-day time estimate. In the event, the Claimant gave a limited explanation of the steps she had taken to instruct counsel but appeared at the hearing to represent herself. She did not, in my estimation, have any difficulty in doing so and was afforded the adjustments I have referred to earlier. Discussion

36. The renewed application for permission relates to a County Court’s decision to strike out the claim for failure to comply with an unless order (as opposed to an application substantively refused after consideration). The Court of Appeal has emphasised in Sivasubramaniam v Wandsworth County Court [2002] EWCA Civ 1738 , Gregory v Turner [2003] EWCA Civ 183 and Strickson v Preston County Court & others [2007] EWCA Civ 1132 that the scope for judicial review of decisions of the County Court is very narrow and restricted to exceptional circumstances. I have carefully considered the Court of Appeal’s recent judgment in R (Koro) v County Court at Central London [2024] EWCA Civ 94 , which concluded [83-84] that a real prospect that a claimant had been denied a fair hearing may be an ‘exceptional circumstance’. The relevant context in the present case is that a County Court Judge had directed that a transcript needed to be obtained in order for the Claimant's application for permission to appeal to be considered.

37. The Claimant’s submissions before me were principally directed at the confusion regarding the obtaining of a transcript as well as her more general submissions about her state of health and her position as a litigant in person.

38. It might fairly be said, in her favour, that the court's response of the 22nd of July from HHJ Lethem to the Claimant's email of the 30th of June (see above) came after the expiry of the deadline in the unless order and that the Judge may have been under the impression that the Claimant was at fault for seeking a transcript of the judgment rather than the entire hearing. In fact, it is clear on the request document that the Claimant had sought a “whole hearing” transcript.

39. However, the Claimant knew shortly after the 27th of May, if indeed she did not know before, that the transcript obtained was incomplete. She appears to have done nothing to obtain a further transcript. There is nothing in the documentation to suggest that the Court was in error in completing the request for a transcript at the public expense. The Judge was well aware of the purpose of the transcript and, as he explained subsequently, intended by his order to give the Claimant a chance to rectify the error within a reasonable time period. This latter aspect of the decision was hardly surprising given the litigation chronology and the Claimant’s approach which has, to a large extent, been replicated in her conduct of the judicial review proceedings.

40. The test for granting permission is whether there is an arguable ground for judicial review with a realistic prospect of success. I am satisfied that the Claimant's application fails to meet this threshold for the following reasons.

41. First, the claim is out of time and no extension was sought. A judicial review claim must be filed "promptly" and no later than three months after the grounds first arose. HHJ Lethem's decision, the subject of the judicial review application, was dated 22 July 2021. The Claimant's Judicial Review Claim Form was filed on 15 February 2022, almost seven months after the impugned decision. The Claimant has offered explanations for this delay, citing ill health and papers being returned by the Court for correction. However, as the Supreme Court made clear in in Barton v Wright-Hassall [2018] UKSC 12 , unrepresented litigants are generally not entitled to a lower standard of compliance with procedural rules than represented parties, unless the rule is inaccessible or obscure. By 2021 the Claimant was a not a newcomer to the court process and I conclude that there is no "good reason" for the extensive delay.

42. Secondly, the responsibility for providing the correct transcript lay with the Claimant to ensure compliance with the 'unless order'. The Claimant has not demonstrated any jurisdictional error on the part of HHJ Lethem, nor a procedural irregularity that amounts to a denial of her right to a fair hearing, sufficient to satisfy the "exceptional circumstances" test. The unless order made by the Judge was made for good reason and the Claimant allowed it to expire without taking steps to comply with it. If the Judge was under any misapprehension as to whether she had ordered the right transcript then I am by no means persuaded that she could not have sought to set aside the order or ask for it to be reconsidered; requests to which the County Court had been amenable when she had made them earlier. In any event she has not sought to appeal. Judicial review is a remedy of last resort. I note that the underlying appeal against District Judge Avent's order had already been determined by HHJ Monty KC to have "no real prospect of success" so that there must be a real likelihood that these proceedings would simply be satellite litigation about an underlying issue of dubious merit.

43. Thirdly, Network Rail Infrastructure Limited is not the proper defendant in this judicial review claim. The challenged decision was made by HJJ Letham in the County Court, not by Network Rail. Network Rail's role in the underlying appeal proceedings was a passive one. While it was open to the Court to consider directions for amending the Claim Form to name the Central London County Court as the defendant with Network Rail as an interested party, I conclude that, for the reasons already stated, the claim is not arguable on its merits and out of time, irrespective of the correct party.

44. Finally, there has been a significant and persistent lack of procedural rigour on the Claimant's part. Despite numerous orders and extensions granted by the Court, the Claimant has repeatedly failed to comply with directions for filing essential documents, including her electronic Permission Hearing Bundle, witness statements, skeleton arguments, and authorities. This consistent non-compliance has placed an "unnecessary drain on the Court’s scarce resources" and caused the Defendant to incur continuing legal costs. As the Court of Appeal noted in R (Spahiu) v Secretary of State for the Home Department: Practice Note [2019] EWCA Civ 2064 , there is "increasing concern about the need for appropriate procedural rigour in judicial review cases". Costs

45. DHCJ KC's initial costs order of £1,406.00, awarded to Network Rail for preparing its Acknowledgment of Service and Summary Grounds of Defence, was in his view "entirely reasonable" and proportionate. The Claimant objected, stating that "1406 pounds seems unreasonable when a para legal submitted the acknowledgement of service and summary grounds of opposition" and questioned whether she had "ever even seen them". I do not consider that there is any merit in these objections. The Grounds of Opposition were emailed to the Claimant on 2 August 2022, and the Statement of Costs on 10 October 2022. The documents were not simply prepared by a paralegal. I therefore see no reason to disturb the existing costs order.

46. The Defendant has also applied for costs in relation to the adjourned renewal hearings of 25 March 2025 and 28 March 2025. While a defendant who successfully resists permission at a renewal hearing will not usually recover costs from the Claimant, the Court has a broad discretion to depart from this general principle in "exceptional circumstances". I find that such exceptional circumstances exist here. The Claimant's judicial review claim is demonstrably hopeless, yet she has persisted with it despite being alerted to its weaknesses both procedurally and substantively. Her repeated non-compliance with Court orders, requiring multiple adjournments and substantial Court resources, further demonstrates the exceptional nature of this case. It would be unjust to the Defendant to leave it to bear the costs occasioned by the Claimant's continued pursuit of an unarguable and procedurally irregular claim pursued in the manner I have set out earlier.

47. I am prepared in those circumstances to award the Defendant its costs of the original substantive hearing listed for the 25 March 2025. The Defendant's cost schedule indicates that virtually all of the solicitor work carried out on the case was performed by a Grade A fee earner. This includes work which might fairly be described as routine preparatory work or administrative in nature and might have been carried out by a lower grade fee earner or paralegal. One such lower grade fee earner is named on the schedule but appears to have done only one hour of work. I accept that some of the work at least was generated by the Claimant’s requests for adjournments and the order requiring the Defendant to bear the bulk of the work of preparation which would otherwise have been carried out by the Claimant herself. I can conclude that a fair summary assessment would be to reduce the Defendant’s costs schedule by approximately one third to £5,250 (excluding Vat, which should be added). Conclusions

48. For the reasons elaborated above, I conclude that permission to apply for judicial review must be refused. The Claimant's application is both out of time and not arguable on its merits, and her conduct of the litigation has displayed a pronounced lack of procedural rigour. The costs order made by DHCJ Dias KC is upheld, the stay is removed, and the Claimant is further ordered to pay the Defendant's costs of the renewal hearing as assessed herein. END Postscript This judgment was circulated to the parties on Monday the 7 July requesting corrections, on the usual basis, by 12:00 PM on Wednesday the 9 July. On the 8 July my Clerk reiterated to Ms Bell-King that the purpose of circulation was to provide typographical or factual corrections to the judgment and was not an opportunity for further submissions. On the same day the Defendant’s counsel told Ms Bell-King that he was happy to share proposed typographical corrections before formally submitting them to the court. He did so on the same day and also shared a proposed draft order. On the morning of the 9 July Ms Bell-King indicated that she was unwell and had a medical appointment at 11:30 and so doubted that she would make the deadline. She complained that reasonable adjustments were not being made. She did not say when she would be in a position to deal with the corrections and draft order. I extended the deadline for corrections and a draft order to 4:00 PM. At 3.21 PM Ms Bell-King emailed saying “…I am unwell today and had a medical appt at 11.30 and could not respond by 4 pm today, and given that under EA, 2010, I qualify for reasonable adjustments, the notice period for the deadline was unreasonable.” The Defendant identified two minor corrections to the judgment. The draft order was short and carried into effect the matters decided on the appeal. I was not, in the circumstances, prepared to further extend the deadline and delay the handing down of this judgment. Ms Bell-King has been able to read and respond to emails and, it is clear, has read the draft judgment. I do not consider that it was beyond her to consider typographical errors or that it was unreasonable to ask her to do so in accordance with the extended timetable. She did not in any event explain what the impediment to her doing so was or propose any further timetable.