UNLESS ORDERS & RELIEF FROM SANCTIONS

profile_PI_Bronia_Hartley1

By Bronia Hartley

Philip John Eaglesham v Ministry of Defence [2016] EWHC 3011 (QB)

Headline: ‘A party who faces genuine difficulties in complying with a court Order, particularly an Unless Order, should come back to the Court and explain the problems that it is facing as soon as they arise, if those problems are sufficiently serious to give rise to a real risk of non-compliance.’

The Claimant, a Royal Marine, contracted ‘Q Fever’ in October 2010 when he was travelling back to the UK from Afghanistan, as a result of which he developed a very serious chronic fatigue syndrome (a well known consequence of Q Fever). The value of his claim is estimated to be in the region of £6-8 million.

The Claimant was dissatisfied with the Defendant’s standard disclosure and issued an application for specific disclosure, which was due to be heard on 7 September 2015. In the event, the Defendant gave its consent to an order to disclose documents and classes of documents specified in a list attached to the Claimant’s application by 18 September 2015.  The defendant agreed the date of 18 September 2015 notwithstanding the size of the exercise and the need for Ministerial consideration of a large volume of PII material.

The Defendant failed to comply and eventually got around to making an application for an extension of time for compliance on 26 May 2016. On 5 July 2016 Mrs Justice Elizabeth Laing made an Order requiring the Defendant to comply in full with paragraph 1 of an Order of 9 September 2015 by no later than 4pm on 21 October 2016.  The Order provided:

‘Unless the Defendant complies with paragraph 1 of this Order in full by 4pm on 21 October 2016 the Defence shall be struck out and Judgment shall be entered for the Claimant for damages to be assessed by the Court.’

The granting of the extension to 21 October 2016 meant that the trial date in early October was lost.

The Defendant issued an application for an extension of time for compliance with the “Unless Order” and for relief from sanctions on 20 October 2016, the day before the deadline.

Despite four more weeks having passed before the application was heard, the Defendant had still not fully complied and was seeking a further two months in which to do so.

Mrs Justice Andrews found that ‘it must have been obvious to the Defendant long before 20 October that it was not going to comply with the Order’.

In refusing the Defendant’s application and entering judgement on liability with damages to be assessed, Mrs Justice Andrews said the following:

  1. The burden is on the Defendant to persuade the Court that it is an appropriate case in which to grant an extension of time for compliance.
  2. In dealing with the application the Court must bear in mind the overriding objective, including allotting to a case an appropriate share of the Court’s resources and seeking to enforce compliance with rules, practice directions and orders.
  3. An “Unless Order” is an order of last resort.
  4. There had been a substantial and serious breach of an Unless Order made against a background of the Defendant’s failure to comply with its disclosure obligations for over a year, without any real excuse.
  5. The previous breach was regarded as serious and significant.
  6. The effect of acceding to the application would be to grant the Defendant still further time, and even then the Court could not be confident that it would comply.
  7. The litany of excuses put forward for the non-compliance was unimpressive.
  8. The pressure of other work and demands on the time of staff was also an insufficient excuse, since those factors were known when the original estimate was given.
  9. The Defendant’s conduct caused both the trial date to be vacated and a CMC to be postponed, with the likelihood that the trial would not take place until 2018, five years after the claim form was issued.
  10. The Claimant, who was suffering from a depressive disorder, faced the prospect of having the claim hanging over him for at least another year, for reasons which were not his fault.
  11. If the Order was enforced there would be judgment on liability, but the Defendant could still defend on quantum.
  12. Unless Orders should mean what they say. The Defendant knew the risk.
  13. It was not an appropriate case to grant the Defendant any further indulgence.

It is of note that that this was an in-time application, but was dealt with by reference to the Court of Appeal’s reasoning in Denton v TH White Ltd [2014] 1 WLR 3926.

Mrs Justice Andrews stated that had circumstances beyond the Defendant’s control lead to a short delay in meeting the deadline, and had all the documents been disclosed, ‘the Court would be facing a very different situation’.

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