Case Nos: CA-2024-002167 - [2025] EWCA Civ 1230

At the hearing before HHJ Brownhill, there was a good deal of argument about disclosure. XGY complained that disclosure had not been adequate although, as HHJ Brownhill noted, there had been no application for specific disclosure. She concluded that, given the issues that she had to decide, further disclosure would not impact materially on the pleaded relevant facts, nor would the further information highlighted on behalf of XGY meet the arguments relied on by the police and the CPS.

On the application for reverse summary judgment, XGY served no evidence. HHJ Brownhill was entitled to draw inferences from the material before the court, applying the well-known principles identified in EasyAirLtd v Opal Telecom Ltd [2009] EWHC (Ch) 339 as approved by this court in AC Ward & Sons Ltd v Catlin (Five) Ltd [2009] EWCA Civ 1098.

HHJ Brownhill rejected the submission that there was a real prospect of XGY meeting the criterion under section 7. She reasoned that, even taking the pleaded points at their highest, XGY had no real prospect of satisfying the “victim” test at the time of the Hampshire disclosure. By April 2020 XGY had not alleged any contact, whether direct or indirect, from DYP after the end of their relationship in early November 2019, over five months before. While the rape allegation undoubtedly would have brought XGY to the fore of DYP’s mind again in April 2020, the pleaded facts did not come close to suggesting that this would have, objectively, created a real and immediate risk of death or mistreatment to the necessary standard. By the time of the Hampshire disclosure, there had been no recent action or threat or contact from DYP. Given the passage of time and lack of contact in the intervening period, any risk flowing from the events of November 2019 would have dissipated. The Hampshire disclosure did not, of itself, resurrect or create an objective risk near the necessary severity.

To the extent that HHJ Brownhill was making an evaluative decision, the threshold for challenge on appeal is again high: there must be some identifiable flaw in her treatment of the question to be decided, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion: see Re Sprintroom Limited [2019] EWCA Civ 932; [2019] BCC 1031 at [76]. That approach has been restated recently in Lifestyle Equities CV v Amazon UK Services Ltd [2024] UKSC 8; [2024] Bus LR 532 at [46]-[50] and Iconix Luxembourg Holdings SARL v Dream Pairs Europe Inc [2025] UKSC 25 at [94]-[95]. To the extent that she made findings of fact, on appeal it must be shown that there was “no sufficient evidence upon which the decision could have been reached or that no reasonable judge could have reached that decision” (see for example Volpi v Volpi [2022] EWCA Civ 464 [2]-[4] and [52]).