Breaches not trivial – but strike out would be disproportionate

PI_Nicola_Philipson Nicola Phillipson

McTear v Englehard

[2014] EWHC 722 (Ch)

14th March 2014

The Defendants were in breach of Orders re: witness statements and disclosure, and had sought to adduce expert evidence without leave, all 3 weeks before trial. Their (not prompt) applications to extend time/obtain relief were (unsurprisingly) refused, but it was held that it would be a disproportionate response to strike out the Defendants’ pleaded case and the trial proceeded.

… it seems to me to be a disproportionate response to all their defaults to strike out a pleaded case that was placed on the record before any of the recent failures to comply with court orders and the CPR occurred. The Defendants may be hindered in their ability to make good their case by the orders that I have made on their applications, which, on my rulings, are the product of their conduct of this litigation. However, I am not persuaded that it is right to go further and deny them the opportunity to defend the claim altogether.

A detailed summary of the case can be found on the Jackson Corner here

The Judgment is available here

One comment

  1. […] My colleague Nicki Phillipson, writing in Zenith’s Personal Injury blog, considers the McTear case in Breach not trivial – but  strike out would be disproportionate  […]

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: