There are many edicts warning against reliance upon judgments that concern permission to appeal.  However the judgment of Mr Justice Fordham in  Harrison v TUI UK Ltd [2022] EWHC 2557 (KB) is of interest in the “Proving Things” series and also because it shows an unusual procedural step being taken.


The claimant was badly injured in an accident in a holiday resort in Portugal. He was found on an emergency road outside his hotel. His case at trial was that the cause of the fall was because he had gone along a corridor and through an emergency door. Outside the emergency door was a path with no handrail.  It was the claimant’s case that he had gone out of the emergency door and the absence of the handrail had caused or contributed to the fall.  The claimant did not have capacity at the time of trial. Evidence was given by his wife. Nobody saw the fall.


The trial judge found that the absence of a fence at the point outside the emergency door represented a breach of duty.  However there was no sufficient evidence to show that the claimant had actually used that door, or that it was in any way relevant to the accident.  The use of the door was an assumption that was not supported by the evidence.

  1. In the First Judgment the Judge found that the Appellant’s case had not been proved on the civil standard. He observed that there was “very limited evidence”. A witness statement by the Appellant was in evidence under the Civil Evidence Act 1995 having been given at a time when the Appellant had capacity. As to that, the Judge said it was clear from that witness statement that much of the Appellant’s evidence was reliant on what others had told him. The Appellant’s wife had made a witness statement and had been cross-examined and re-examined. The Judge accepted that her evidence was truthful and accurate. But the Judge found that the Appellant’s wife could not say, from her own observations, where the Appellant had gone after she got in the lift. The Judge also referred to what he said was “clearly” an “assumption” that had been made, that the Appellant had (or might have) exited the emergency door, but that the “basis” for that was “wholly unexplained”. The Judge referred to the blood and the piece of glass from the Appellant’s glasses, these having been found by a drain in the service road (the drain also being visible in the photographs which I have been shown), which location the Judge said “may represent the site where trauma was sustained”. The Judge referred to evidence as “not inconsistent with” the Appellant’s case but “not proving it either”. The Judge found that it was more likely that the Appellant had gone out for his walk through the door near the lift and not through the emergency door at the end of the corridor. He gave the “basis” for that which was twofold. First, that the Appellant wanted a walk and – after seeing his wife to the lift – was standing virtually next to the external door through which he had just entered and it was more likely that he went out again through that door. Secondly, that even if the Appellant had instead lost his way or even deliberately gone down the corridor leading to the emergency door, it was still more likely that he would have retraced his steps to the door near the lift rather than open an emergency door. The Judge concluded that, “however the incident occurred”, it was more likely than not that it did not happen by the Appellant exiting through the emergency door. Therefore, it did not happen in the way pleaded and the claim must fail. That was the First Judgment.


The claimant made an application, after the judgment, to amend the pleadings to plead an alternative way in which the accident could have happened.  The trial judge refused that application, finding that there was insufficient evidence to show that the accident happened in the way asserted in the proposed amended particulars of claim.

    1. The Second Judgment arose because Counsel for the Appellant made an application on 25 November 2019 to amend the Particulars of Claim, post the delivery of judgment (orally) but prior to the sealing of the Court’s order. As everybody recognised, that was an exceptional course, but it can be appropriate. Reference has been made in the papers to the case of Stewart v Engel [2000] 1 WLR 2268, but it has not been necessary for me to be provided with the authority or taken to it. The basis of the application for post-judgment amendment was that the Appellant ought to be permitted to rely on an alternative way in which the incident could have occurred, namely that without exiting the emergency door, the Appellant had found himself on his walk outside the emergency door – which could not be opened from the outside – and, in the absence of a handrail, had fallen down the rockery onto the service road. The argument was that if that was what had happened, the claim in damages should succeed. The argument moreover was that if either the original scenario (exiting through the emergency door) or the alternative scenario (being outside it and unable to get in through it) had occurred, the claim for damages should succeed.
  1. The Second Judgment dealt with the application. In fact, by then the order had been sealed. As to that, the Judge made clear that this had not been his intention and he considered, on its legal merits, the application for permission to amend the pleaded claim, post-trial and post-judgment. In doing so, the Judge explained that – in light of the application to amend now being made – it was appropriate to address whether the “alternative factual scenario” now being put forward “would be proved” on the basis of “the evidence that was available at the trial”. The Judge encapsulated the Appellant’s position as being that, on the evidence available at trial, it was “more likely than not that [the Appellant] either came out of [the emergency] door or approached that door with a view to going into it”. The Judge referred to the evidence as to the location of the blood and glass, which he said involved “no direct indication” of the Appellant having been in the vicinity of the emergency door or rockery immediately below the path leading from the emergency door. The Judge ruled that, on the basis of the evidence available at trial, had the alternative case of attempted entry through the emergency door been pleaded at the time he gave the First Judgment, he would have made it clear that “neither the original nor the alternative case had been proved on the balance of probabilities”. He said that “the evidence that I heard is at least equally consistent with [the Appellant] simply falling whil[e] walking along the service road and not falling from the door or the path at all”. In those circumstances, the Judge said, “had the pleadings been amended during the course of trial at any time before I had given my judgment the eventual result would have been the same in that I would have dismissed the claim”. In those circumstances, he said, it could not be appropriate to allow the amendment to plead the alternative claim.


The claimant’s application for permission to appeal was unsuccessful.

    1. I have looked, carefully and afresh at all the points being advanced in this case in order to see whether – with Mr Young’s assistance – I can find any arguable ground having a realistic prospect of success either individually or in combination. Having done so, I have reached the same conclusion that was reached by Eady J on the papers. In my judgment, there is no realistic prospect that the various points advanced in this proposed appeal could succeed.
    1. The Judge plainly had the evidence well in mind and evaluated it. Although in the First Judgment on the issue of what had happened on the night in question the Judge ultimately ‘based’ his conclusion on two points which he identified, that was not a “starting point” but was the culmination of the Judge’s evaluation of all the evidence. The First Judgment specifically referred, for example, to the evidence relating to where the blood and glass from the Appellant’s spectacles had been found. That was evidence, moreover, to which the Judge returned in the Second Judgment. The Judge expressly dealt with the question of direct evidence. He dealt with the witness statement which had been put forward by the Appellants and adduced in evidence under the 1995 Act. But the Judge gave a sustainable reason – namely the reliance being placed by the Appellant on what he had been told by others – why he was not able to rely on that as recording the Appellant’s own recollection of what had taken place. Rightly none of the grounds of appeal impugn the way in which the Judge dealt with that aspect of the evidence. The Judge concluded that the evidence of what exactly had happened was “very limited”. That is understandable in circumstances where direct evidence of what had happened would have been a statement from someone recalling it; evidence from an eyewitness; video evidence of the incident; or something else of that nature.
    1. The Judge had heard the evidence – orally in cross examination and re-examination – of the Appellant’s wife and clearly evaluated that evidence. Nothing in the Appellant’s witness statement said that she had ‘seen’ her husband walk down the corridor towards the emergency exit. In cross-examination and re-examination the questions of what had happened when she and the Appellant parted at the lift were probed. I have considered the various passages in the cross-examination and re-examination on which reliance is placed by Mr Young and also those passages to which Eady J referred. The problem is that there is clearly a difference between the Appellant’s wife saying – honestly – that what she thought had happened was that her husband had left her at the lift and then gone down the corridor. As she put it in her oral evidence: “he must have missed the exit where we came in, and he went down the wrong corridor”; agreeing that “he walked down another corridor”; and also “[I] just got to the lift and he walked and I don’t know any more”. But there is a difference between that and evidence that says that she had “seen” him turn away from her and walk down a corridor. Looking at the transcript, I can see no evidence of her saying that that is what she “saw”. The Judge, beyond argument, was entitled to deal with that evidence in the way that he did when he said she could not “say from her own observations” where the Appellant went after she got in the lift. The Judge, moreover, plainly had a considerable advantage over me having heard the three days of trial evidence that immediately preceded the giving of that First Judgment, as well as the submissions about the trial evidence. In any event, the Judge expressly dealt with the possibility that the Appellant had gone down the corridor towards the emergency door, explaining his finding that even if that had happened it was more likely that the Appellant would have turned back and gone through the main entrance (through which he and his wife had just come) rather than proceeding to the emergency exit and pushing through it to go outside.
    1. I have no doubt that the Judge had well in mind the incident report which had been emphasised so strongly in the closing submissions to him. He plainly had in mind the steps that had been taken in the immediate aftermath of the incident, including the fence and then the railing being installed, all of which he had heard and read about in the evidence. The Judge referred, in terms, in the First Judgment to the “evidence of Mr Pereira” about “the installation of a handrail”. Having dealt with the Appellant’s evidence, and the Appellant’s wife’s evidence, the Judge went on to say: “No one else saw what happened”. He then said: “There clearly appears to have been some assumption that [the Appellant] came out to the [emergency] door … or might have done, so but the basis for this is wholly unexplained”. I cannot accept Mr Young’s submission, even arguably, that the Judge in describing an “assumption” was dealing only with the evidence that had been put forward on behalf the Appellant. He had dealt with the evidence of the Appellant and the wife. He gone on to talk about others and that “no one else” had seen what had happened. He did not express his point about the “assumption” by reference to the Appellant’s wife’s evidence. In my judgment, it is clear that the reference to there having “clearly appear[ed] to have been some assumption” was recognising that it had been taken that the Appellant had come out of the emergency door: where the best and most obvious source that the Judge had seen for that was the incident report; and where this and that was the very point being emphasised from that report. The Judge characterised this as an “assumption”. The night manager (who wrote the incident report) had not witnessed the incident. The Judge characterise the basis of the assumption as “wholly unexplained”. Beyond argument, in my judgment, it was open for him to do so. It is not arguable that the Judge overlooked the incident report.
      1. The Judge did not address the ambulance record, which was before him only in Portuguese. But that is entirely unsurprising since no reliance was placed on it and neither of the two points now made were made at trial about its contents. The timing point (“23:41”) would have been open as a point to make on the face of the document, since it is obvious even in the Portuguese version that that document is recording date and time of the call. I agree with Eady J that, in principle, it cannot be open to the Appellant in this case to (have what would be a third opportunity now to) change the shape of the case on appeal, by reference to evidence (the translated document) that was not before the Judge and could have been before the Judge. But in any event the ambulance record, in giving a description of what is said to be a “wall” but more relevantly is said to be “a fall” from “height” is evidence of the same nature as that which the Judge described as involving an “assumption” with a “basis” which is “wholly unexplained”. The position about not taking a point at trial – which I made earlier in relation to what Mr Pedrosa may or may not have been told by the Appellant – applies ‘a fortiori’ in relation to what may or may not have been said to somebody compiling an ambulance record (not relied on at trial or in evidence in translation at trial). So far as the timing is concerned I cannot in any event see how the 20 minutes time lapse is somehow more consistent with the Appellant going down a corridor and pushing through the emergency exit and then falling, rather than his going out of the entrance through which he and his wife had entered and then walking around the outside and falling (it might have been different if the time period had been much shorter). I cannot see that anything material can turn on the ambulance record in the context of the other evidence in the case and the reasons given by the Judge. But in any event, there is the objection of principle which I have identified that this is evidence that could have been adduced and relied on below.
    1. Nor can I accept that the Judge was ‘clearing the decks’ and ignoring all of the evidence when identifying the “basis” for his ultimate conclusion in the First Judgment. The Judge referred to the evidence and the phrase that he used was that he was being left to assess the likelihood on “very limited evidence”. I do not accept the submission that his reasons constituted choosing to give evidence “no weight”. He said that the evidence referred to was “not inconsistent” with the Appellant’s case. He then said that the evidence “did not prove it either”. That was a clear description of the Judge not being satisfied that the evidence that was before him was capable of satisfying the civil standard. What the Judge did, and what he was entitled to do, was to step back and consider – in the light of all of the evidence – the ‘likely probabilities’ given the limited evidence and the limited assistance that it gave. That was clearly what he did when he articulated as the “basis” for his ultimate conclusion the two powerful points he made, relating to the likely probabilities.
    1. I can see no arguable error of approach by the Judge in relation to the First Judgment or the findings made in it. Turning to the Second Judgment, nor – in my judgment – is it arguable with a realistic prospect of success that it was not open to the Judge to conclude that the scenario (iii) of the Appellant falling in the service road was at least as consistent with the evidence as the two other alternatives (i) and (ii) ‘cumulatively’. Based on all the evidence, in my judgment and beyond argument, the Judge was entitled to form that view of the evidence. The remaining question is whether the Judge actually took that approach or whether his approach was vitiated by the ‘error of approach’ identified by Mr Young and recorded earlier. As to that, the Judge referred to whether it could be said on the evidence available at the trial that was more likely than not that the Appellant “either” came out of the emergency door (scenario (i)) “or” approached the emergency door with the view to going into it (scenario (ii)). He went on to say that he would have made it clear, had the alternative been pleaded at trial, that “neither” the original (scenario (i)) “nor” the alternative (scenario (ii)) case has been proved on the balance of probabilities. But importantly he then went on to say this: “It seems to me that the evidence that I heard is at least equally consistent with [the Appellant] simply falling while walking along the service road and not falling from the door or the path at all”. The phrase “not falling from the door or the path at all”, read in context, was clearly a reference to the ‘cumulative’ possibility or likelihood of either of the two other alternatives (scenario (i) or (ii)) having taken place. It is, in my judgment, very clear that the Judge was putting them together ‘cumulatively’ as being within the description of scenarios in which the Appellant had “fall[en] from the door or the path at all”. It is, in my judgment, clear beyond argument that what the Judge was saying was that scenario (iii) was “at least equally consistent with the evidence” as were scenarios (i) and (ii) taken ‘cumulatively’. That meant – as the Judge explained – the claim would not have succeeded on the evidence, to the civil standard, even had the claim been pleaded and advanced on the basis of the two other alternatives. The Judge did not adopt the approach which, it is said by Mr Young, would have been an arguable ‘error of approach’.
  1. I can find in the points advanced on behalf of the Appellant, viewed individually and viewed in combination, no arguable appeal with a realistic prospect of success. In those circumstances I will refuse the renewed application for permission to appeal. There has been no attendance by a legal representative to make submissions for the Respondent at this hearing and there will be no order as to costs.