Cerys Ashley v Benedict Cela Musa

HHJ PAUL MATTHEWS:

1. This is an informal application by the petitioner in her unfair prejudice petition under the Companies Act 2005, section

994. It is important that I first outline some of the procedural history of this case. In the course of this litigation the first respondent gave disclosure during the latter part of last year and that was received by Ms Ashley, I think at the latest by 25 October 2024. Witness evidence should have been exchanged rather earlier than it was, but Ms Ashley was not ready. Time was extended by me, and it was eventually exchanged on I think 26 February 2025. By that stage however the petitioner had applied by notice dated 11 January 2025 for various matters. One of them was to extend the deadline for the exchange of witness statements (which as I say I did). The second was for permission to serve further particulars of the petitioner’s claim. The third thing was for directions for further evidence to be given. Fourthly, directions were sought as to the time estimate and listing of the trial. I may say that the current listing of the trial is for 1 to 4 July 2025, which begins four weeks yesterday. So that is just under four weeks from now.

2. The application of 11 January was I think originally listed for hearing on 4 February. But the petitioner applied for an adjournment, which I granted, over two weeks to 19 February 2025. On that day there was a remote hearing, at which both the petitioner and Mr Ascroft, counsel for the first respondent, appeared. Both of them addressed me. By my order of that date, although it was not sealed until March, I made some directions in relation to expert evidence, I granted the petitioner relief from sanction, and I extended the deadline for witness statements (and that was complied with), but otherwise I dismissed the petitioner’s application.

3. Last week, on 27 May 2025, I heard the pretrial review in this matter. At that pretrial review the petitioner raised the question of a further application that she wished to make (i) for permission to amend her claim, (ii) for permission to adduce further evidence (in particular that a Mr Mahoney should be called to give evidence) and also (iii) for disclosure of further documents from the first respondent. These matters appear to have been first raised with the respondent in an email sent by the petitioner on 19 May 2025.

4. Also at that hearing (the pretrial review), the petitioner sought I think for the first time in this litigation to rely on the provisions of the Equality Act 2010 in relation to her own disabilities. The disabilities that she is referring to there are dyslexia and anxiety and depression. I will come back to those.

5. However, although the petitioner wanted to raise these questions in a further application at the PTR, they were not available to the parties in any written form, in the sense that the petitioner had not filed an application notice in form N244, nor had she filed or served any evidence in support of the application. It is fair however to say that she did prepare a draft amended petition, a copy of which she gave or sent to the respondent’s solicitors on about that day, 27 May. I have not seen this document, but apparently it proposes to make extensive amendments to the petition.

6. I was unhappy at dealing with applications in the abstract, without seeing more concrete evidence of them. So what I said was that I would not dismiss those applications there and then. I directed instead that the petitioner should issue and serve an application notice and evidence in support, and a draft order, and also a skeleton argument dealing with her arguments on the Equality Act 2010, by 4 pm last Friday, 30 May. At the time the petitioner made no objection to this, although she has told me today that she was suffering very strongly from her symptoms of anxiety, and that she just wanted that hearing to be over.

7. Soon after the hearing was over, she wrote to the court seeking an extension of the time for preparing, filing and serving the documents I have referred to, to last Monday at 10 am. After inviting comments from the first respondent, I granted that extension of time. On the Monday, 2 June, the petitioner emailed the court very early to say that she had been unwell since the previous week. She asked for a further extension of seven days to lodge the various documents to which I have referred, and to relist the hearing itself seven days later.

8. On the same day, indeed during the same morning, the court staff responded to the effect that “If you want to apply for an adjournment you will need to file a formal application in form N244.” So that was on Monday. We are now on Wednesday, 4 June. Today the petitioner sent three emails to the court. The first one was timed at 04.27 this morning. The petitioner has told me that she has been suffering from insomnia, so it is not perhaps surprising that her emails are timed so early in the morning. That email was copied to the respondent’s solicitors. It said that the petitioner would try to attend today at 11 o’clock. The second email was sent at 05.29. That was not copied to the respondent’s solicitors, but so far as I can see it is the identical email that was sent at 04.27. So, there is no need for me to be concerned about that.

9. The third email was sent, or at any rate it was received by the court, at 09.00. It was headed, “Confidential personal medical data”. It was not copied to the respondent’s solicitors. It attached a number of photographs. When we started the hearing this morning, which is a remote hearing, I invited the petitioner to address me on the matters that she wished to raise. She did so at some length, and in some detail, and I am very grateful to her for that further information, much of which I was not aware of before.

10. In relation to the email which had been sent at 9 o’clock containing personal medical data, the position we reached after discussion was that I would forward that email to the respondent’s counsel but without the photographs. Counsel helpfully said that he did not think the photographs were going to make any difference anyway. So that was easy. The petitioner had in fact read out the substance of that email to me in the hearing.

11. But, at the end of the day, there is still no clear application, no application notice, no evidence in support, no skeleton argument on the Equality Act, and so on. The upshot of the address from the petitioner is that she would now like, as a first line order, a stay of the proceedings for three months. This is, firstly, so that she can get better, and, secondly, so that she can engage with other possible sources of assistance such as pro bono legal services. But, if I am unwilling to accede to that, then she seeks at least a further adjournment of this hearing to allow her formally to prepare, or rather to finish off, the half prepared documents that she already has, and to make a formal application.

12. So, first of all, I am going to deal with this matter without engaging directly with the Equality Act issues. Then I will bring in the Equality Act and see what difference that makes. The first point is the question of adjournment and the evidence that you need if you base your adjournment on medical questions. The authority that is always cited is a passage in the judgment of Norris J in a case called Levy v Ellis-Carr [2012] EWHC 63 (Ch), [36]. It reads like this: “But I will consider that additional evidence. In my judgment, it falls far short of the medical evidence required to demonstrate that the party is unable to attend a hearing and participate in the trial. Such evidence should identify the medical attendant and give details of his familiarity with the party’s medical condition detailing all recent consultations. It should identify with particularity what the patient’s medical condition is and the features of that condition which in the medical attendant’s opinion prevent participation in the trial process, it should provide a reasoned prognosis and should give the court some confidence that what is being expressed is an independent opinion after a proper examination. It is being tendered as expert evidence. The court can then consider what weight to attach to that opinion and what arrangements might be made short of an adjournment to accommodate a party’s difficulties. No judge is bound to accept expert evidence even a proper medical report falls to be considered simply as part of the material as a whole including the previous conduct of the case. The letter on which the appellant relies is wholly inadequate”. Of course that was the letter in that case.

13. I should say that that statement of principle has been followed in many cases since. In particular it was endorsed by the Court of Appeal as embodying the correct principle in both Forrester Ketley v Brent [2012] EWCA Civ 324, [26], and in a more recent case, Bruce v Wychavon District Council [2023] EWCA Civ 1389, [36].

14. I may say also that I was referred by Mr Ascroft on behalf of the first respondent to an earlier decision in the Forrester Ketley v Brent litigation, a decision of the Court of Appeal in 2005, the neutral citation of which is [2005] EWCA Civ

270. In that case there was an appeal brought by Mr Brent against two decisions of High Court judges. What Neuberger LJ says is this: “3. Mr Brent does not appear but he has made fairly voluminous submissions in writing. He has applied for an adjournment of the hearing of this appeal on the grounds of his ill health. Normally this court is sympathetic to an application for an adjournment on grounds of ill health however in this case it appears to me that it would be quite inappropriate to accede to the application.

4. The most recent medical report provided by and in respect of Mr Brent suggests that he is suffering from a degree of stress but it seems to me that if this court was to agree an adjournment simply because a litigant was suffering stress most appeals would be adjourned. It may be said that at least part of the stress in many cases is caused by the existence of the appeal and one would therefore be doing a favour to the applicant by hearing the appeal rather than by adjourning and thereby prolonging the stress.

5. Furthermore this case has a history of Mr Brent applying for adjournments on the grounds of his health, in most cases with medical certificates which do not justify an adjournment. Of course one must be sympathetic to any litigant particularly a litigant in person who says he is unable to attend but equally one has to bear in mind the position of the other party”. I need not read any more from that judgment.

15. The medical evidence in the present case falls into two sections. First of all, there is a report from an educational psychologist dating from 2008. This makes clear that the petitioner does indeed suffer from dyslexia. There is then a letter from her GP dated 11 November 2022, written in relation to earlier different litigation in which the petitioner was involved. That letter says that the petitioner was then suffering from anxiety and depression since the illness and death of her mother in 2018 and 2019. It also referred to the medication being prescribed for her. Now, neither of these two pieces of evidence is up to date. Judged by reference to the principles set out by Norris J in Levy v Ellis-Carr, neither of them, in my judgment, is sufficiently particular. Neither of them gives a prognosis. In my judgment, neither of them is sufficient evidence to justify an adjournment.

16. I should go on, I think, to make this point in relation to the nature of the application which the petitioner wishes to make, namely, to amend apparently quite substantially her statements of case in this litigation. As I have already said, this matter is listed for trial starting four weeks yesterday so we are now very close to that date. If there is to be a stay for three months, then the trial will have to be vacated. Even if I do not grant a stay but grant an adjournment of some time so that a formal application could be made, there is still obviously a risk that the trial would have to be vacated.

17. There are a number of authorities which deal with what the court should take into account in considering such a case. One of the well-known judgments is in a decision of Carr J as she then was (she is now the Lady Chief Justice), in a case called Quah v Goldman Sachs [2015] EWHC 759 (Comm), [38]. A second one is in a case called Vilca v XSTRATA Limited [2017] EWHC 2096 (QB), [27]-[30]. A third one is in a case called CIP Properties v Galliford Try [2015] EWHC 1345 (TCC), [19].

18. I mention that third one because that is one which was recently approved by the Court of Appeal in a case called ABP Technology v Voyetra Turtle Beach [2022] EWCA Civ

594. I will read out paragraph 19 from CIP Properties v Galliford Try: “In summary therefore I consider that the right approach to amendments is as follows: (a) The lateness by which an amendment is produced is a relative concept … An amendment is late if it could have been advanced earlier or involves the duplication of cost and effort or if it requires the resisting party to revisit any of the significant steps in the litigation such as disclosure or the provision of witness statements and expert’s reports which have been completed by the time of the amendment. (b) An amendment can be regarded as very late if permission to amend threatens the trial date … even if the application is made some months before the trial is due to start. Parties have a legitimate expectation that trial dates will be met and not adjourned without good reason … (c) The history of the amendment together with an explanation for its lateness is a matter for the amending party and is an important factor in the necessary balancing exercise … In essence there must be a good reason for the delay … (d) The particularity and/or clarity of the proposed amendment then has to be considered because different considerations may well apply to amendments which are not tightly drawn or focused … (e) The prejudice to the resisting parties if the amendments are allowed will incorporate at one end of the spectrum the simple fact of being ‘mucked around’ … to the disruption of and additional pressure on their lawyers in the run up to trial … and the duplication of cost and effort … at the other. If allowing the amendments would necessitate the adjournment of the trial that may be an overwhelming reason to refuse the amendments … (f) Prejudice to the amending party if the amendments are not allowed will obviously include its inability to advance its amended case but that is just one factor to be considered … Moreover if that prejudice has come about by the amending party’s own conduct then it is a much less important element of the balancing exercise … ” That is all I need to read from that judgment.

19. I am not today making any decision about what would be the result if an application were made for substantial amendments to be made to the petition. That is because there is no such application before me, I do not know what the amendments look like and I have not heard the arguments put forward for and against that. I simply point out that there are principles which have to be applied. They suggest that it will not be easy to obtain permission to amend in this case. But I put that on one side.

20. Apart from the arguments under the Equality Act 2010 (which I am going to come on to in a moment), in my judgment, it would not be appropriate to order a stay of these proceedings for three months. I am very sorry that the petitioner is unwell, but I simply do not have the medical evidence needed in order to vacate this trial and start listing again. The petitioner can still instruct another lawyer to conduct the litigation or appear at the trial, for example, direct access counsel. That is of course a matter for her.

21. The fall-back position which the petitioner puts forward is that I should give her extra time for making the present applications, or rather completing and making the present applications. The problem here is rather open-ended. We have had a situation in which the petitioner intimated her intention to apply for permission to amend her case on 19 May. There was then (a week later) the pretrial review, but she was not ready at that stage to put forward the application. I allowed her a further week in order to prepare the documents. Unfortunately, she has not been able to do it in that time, because she has been unwell, and now she is asking for further time.

22. The problem as I see it is that we have moved on and on and on, and we really do need to have some finality here. In my judgment, there is nothing to stop the petitioner from producing a formal application to amend her claim for disclosure, to call witnesses and so on, right up to and indeed including the trial itself. However, she has to understand that the window of opportunity is already pretty close to closing and that, if I judge any application she makes by the tests that I have referred to in cases like CIP Properties v Galliford Try, it may well not succeed. So, the Equality Act aside, what I would say is that I would not adjourn this hearing again. I would just leave it so that if the petitioner wished to put forward her formal application she could, but she would have to bear in mind that she risked failing.

23. That is my view without the Equality Act. Now I have to take into account the provisions to which I have been referred. These provisions are as follows. First of all, section 15 of the Equality Act 2010 says this: “(1) A person (A) discriminates against a disabled person (B) if – (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2) Subsection (1) does not apply if A shows that A did not know and could not reasonably have been expected to know that B had the disability.” Obviously, subsection (2) has no application in the present case, because I do know about the petitioner’s disabilities.

24. She also relies on section 29 of the Act which provides: “(1) A person (a ‘service provider’) concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service. (2) A service provider (A) must not, in providing the service, discriminate against a person (B) – (a) as to the terms on which A provides the service to B, (b) by terminating the provision of the service to B, (c) by subjecting B to any other detriment. (3) A service provider must not, in relation to the provision of the service, harass – (a) a person requiring the service, or (b) a person to whom the service provider provides the service. (4) A service provider must not victimise a person requiring the service by not providing the person with the service. (5) A service provider (A) must not, in providing the service, victimise a person (B) – (a) as to the terms on which A provides the service to B, (b) by terminating the provision of the service to B, (c) by subjecting B to any other detriment. (6) A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation. (7) A duty to make reasonable adjustments applies to – (a) a service provider (and see also section 55(7)), (b) a person who exercises a public function that is not the provision of a service to the public or a section of the public. [ … ] (9) In the application of this section, so far as relating to race or religion or belief, to the granting of entry clearance … it does not matter whether an act is done within or outside the United Kingdom.

10. Subsection (9) does not affect the application of any other provision of this Act to conduct outside England and Wales or Scotland.”

25. Now the petitioner did not refer to or rely on this, but I need just to refer briefly to section 149 of the Act. This is the public sector equality duty. I am going to read a couple of subsections: “(1) A public authority must, in the exercise of its functions, have due regard to the need to – (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act, (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it, (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. (2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).” I am not going to read the rest of the section, but I treat it as incorporated into this judgment.

26. Then I must refer to Schedule 3 to the Act. Paragraph 3 of that schedule reads as follows: “Subsection (1) of section 29 does not apply to (a) a judicial function; (b) anything done on behalf of or on the instructions of a person exercising a judicial function; [ …].” I do not need to read any more.

27. I also need to refer to Schedule

18. Paragraph 3 of that schedule again says this in subparagraph (1): “Section 149 does not apply to the exercise of – (a) a judicial function, (b) a function exercised on behalf of or on the instructions of a person exercising a judicial function.” I do not need to read any more.

28. It will be seen that paragraph 3 of Schedule 18, so far as I have read it out, is in practically identical terms to paragraph 3 of Schedule

3. The reason why that matters is that, in the short time that I had this morning after the argument, I tried to look and find any authority, any decision of the courts, that dealt with the question of the application of any of the sections of the Equality Act to court decisions. I found one authority only. It is a decision of Stadlen J in a case called R (on the application of Amanda Howard) v The Official Receiver [2013] EWHC 1839 (Admin), [2014] QB

930.

29. I will just read out part of the first paragraph because that tells us what the litigation was about. It begins in this way: “This is a claim for judicial review of a decision by the Official Receiver (‘the OR’), made on 6 December 2011 to revoke a debt relief order (‘DRO’), which had been made in respect of the claimant on 26th May 2011. The claimant asserts that she is a person with severe and longstanding health problems which rendered her ‘disabled’ for the purposes of section 6 and schedule 1 of the Equality Act 2010 (‘the 2010 Act’). The ground of her challenge is that the decision to revoke the DRO, the debt relief order, is said to have been unlawful in that in taking it the OR, the Official Receiver, failed to comply with the public sector equality duty set out in section 149 of the 2010 Act. In reaching her decision the OR accepted that the claimant was ‘disabled’ within the meaning of section 6 and schedule 1 of the 2010 Act. However, she denies that the decision was unlawful for two principal reasons. First, she contends that in making the decision to revoke the DRO she was exercising a judicial function within the meaning contemplated by paragraph 3(1)(a) of schedule 18 to the 2010 Act so that by reason of that paragraph section 149 did not apply to the making of the decision … ” We can stop there, because then the judge goes on to deal with the second reason.

30. So, that was a case where the claimant said that the Official Receiver’s decision was unlawful because it did not take account of the public sector equality duty in section 149, and the Official Receiver’s answer was, “Well, that does not apply to me because I am exercising a judicial function”. So the argument in the case really was about the scope of this exception. The judgment is a very long one. The paragraphs which actually matter, in which the judge expresses his view on the law, are paragraphs 154 through to

163. It is about two pages of A4. I am not going to read them all out, but I am going to give you what I would say are the most important points that come out of that. Obviously, you can read them for yourself afterwards.

31. Paragraph 154 says this: “Section 149(6) provides that compliance with the public sector equality duties may involve treating some persons more favourably than others. Although the duty is not framed in terms of achieving a particular outcome it is thus expressly contemplated that compliance with the duties set out in section 149 may involve and thus arguably require not only a different outcome to that which would have occurred in the absence of the duty but an outcome which involves treating some persons more favourably than others. Thus, for example, the duty to have due regard to the need to take steps to meet the needs of a disabled person includes having due regard to the need to take steps to take account of a disabled person’s disabilities”.

32. Then paragraph 155 says this, and I think this is quite important: “It is not difficult to see why it was considered inappropriate as a matter of policy for such a duty to be imposed on judges in the exercise of their function of deciding civil or criminal cases before them. Inherent in the rule of law is the proposition that it is the function of a judge to apply the relevant law to the facts of a particular case in front of him or her and to do so even-handedly without regard to the nature, identity or particular characteristics of any of the parties or persons appearing in front of him or her”. Then the judge expands on this reasoning. He says that in some cases the law requires a particular answer and in other cases it confers a discretion. He deals with the cases where the law requires a particular answer, and then he goes on to discuss the cases where it confers a discretion on the court.

33. At paragraph 160 he says this: “It would certainly offend common sense to suggest that a judge deciding a case expressly on the basis of the exercise of a discretion was for that reason not exercising a judicial function. A decision to refuse an application for an injunction on the grounds of delay is no less an exercise of a judicial function than a refusal of an injunction on the ground that the claim discloses no reasonable cause of action”.

34. And in 161 he says this: “It is of course open to Parliament to fetter judicial discretion or to require it to be exercised in a particular way or indeed to remove judicial discretion and require a judge to reach particular conclusions in particular situations in accordance with statute. Indeed that happens all the time. However that is very different from requiring judges as would have been the case but for the exclusion of paragraph 3 of schedule 18 to have regard to a particular set of matters in every single decision in every kind of case which they ever have to decide”.

35. Then he goes on to discuss further matters. Then at 163 (which is the last of the paragraphs which I think is relevant) he says this: “It is in the nature of civil litigation that it is the judge’s duty to determine the rights and liabilities of the parties in accordance with the relevant law and the parties are entitled to expect and the rule of law depends on the certainty that the judge will do so. In that vital respect the process by which a person’s rights and/or liabilities are determined with binding legal effect is, in my judgment, materially different from the very many situations in which in the public sector public bodies take decisions which may foreseeably or even inevitably have an impact on or effect one or more individuals. Often such decisions involve difficult questions of allocating scarce resources. The application to such decisions of the public sector equality duty does not involve the same conflict as that to which I have referred in the context of judicial decision making”.

36. The actual decision in the case does not matter for our purposes. But what is significant is the explanation given by the judge as to why it is appropriate to exclude judicial functions from the public sector equality duty. I cannot help thinking, given the way in which both paragraph 3 of Schedule 18 and paragraph 3 of Schedule 3 are worded, that the same reasoning applies in relation to section

29. Accordingly, the section does not apply to the exercise of a judicial function.

37. The petitioner submitted that that was not the case, because the purpose of section 29 was not to protect the court but to protect the individual judges. But I agree with the submission of Mr Ascroft that in that case it would have been worded in very different terms. Moreover, the comments of Stadlen J in the Howard case would be inconsistent with that interpretation. For those reasons, therefore, I consider that section 29 simply has no impact in the present case.

38. But that leaves section

15. There is no relevant exception to that section for judges or judicial functions that I have found. Moreover, I have not found any decision of any English court dealing with section 15 of the Equality Act in the context of civil or criminal litigation, and (for example) saying that the judge does not have to obey the non-discrimination prohibition in section

15.

39. That means that we have to look very carefully at the terms of section 15 itself. I remind myself that it says that a person discriminates against a disabled person if A treats B unfavourably because of something arising in consequence of B’s disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim. I have no doubt in this case that, if the court refuses a stay or an adjournment to the petitioner that will be treating her “unfavourably”. I have also no doubt that dyslexia is a disability, and that the petitioner suffers from it. I know she suffers also from stress and depression, and they may also be disabilities for this purpose, but I am making no decision on that. It is the dyslexia that matters, because that is the disability that gives rise to the need for an adjournment, that is to say, for more time. You need more time to absorb information and to prepare documents compared with someone who does not suffer from dyslexia. However, it does not automatically follow, in my judgment, that any refusal of a stay or adjournment is because of something arising in consequence of the petitioner’s disability. It must depend, I think, on the circumstances of the individual case.

40. Here an application, although not yet formally made has at last been intimated, for a stay or for an adjournment. But it is extremely late; it is less than four weeks before the trial starts. A stay will undoubtedly require the vacation of the trial. Even an adjournment might well do so. The problem, as I see it, for the petitioner in this case is that she has in fact had a lot of time already to prepare. The applications that she wants to make include an application for disclosure, but she has had the respondent’s disclosure since October last year. She wants to have another witness called, but the witness evidence was exchanged in February this year, that is nearly four months ago. So far as concerns her wish to amend her claim, she first informed the respondent’s solicitors of her wish to do so on 19 May. Although she has prepared a draft proposed amended petition, and apparently provided it to the respondent, she has not provided it to the court, and the formal applications are still not prepared.

41. So, let me suppose that this application were dismissed because it is so late, because there is so much prejudice to the respondent, to the court and to other court users who will find that their cases are delayed (because this time being reserved for this trial cannot now be used by them, but further time in the future will have to be used for the purposes of this trial and cannot be used for their case). It seems to me that, if that application were dismissed for those reasons, it would not be because of the petitioner’s need for more time, but because she has already had a lot more time which she has not used as profitably as she might. So I do not accept that the premise of section 15(1)(a) is made out. The unfavourable treatment is not because of something arising in consequence of her disability.

42. But, even if I were wrong about that, then it seems to me that my decision to dismiss the application or refuse the stay would be a proportionate means of achieving a legitimate aim. That is, of ensuring a fair trial of the petition as it currently stands. Therefore, I do not consider that the duty under the Equality Act makes any difference to the decision I would have reached in the absence of the Equality Act.

43. For those reasons, therefore, I am not prepared to grant a stay of this petition for three months, or any lesser period, and I am not prepared at this stage to adjourn further this hearing in the hope that the petitioner will produce a formal application. However, I make crystal clear that there is nothing to prevent the petitioner from putting forward her formal notice, N244, seeking the various relief that she does. But, if she does, she must be on notice, for the reasons that I have already given, that the likelihood of the court acceding to such an application at this late stage of the proceedings must be very small. —————