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Articles | Tue 6th Dec, 2016
Eaglesham v Ministry of Defence  EWHC 3011 (QB) – Defendant’s application for extension of time for compliance with unless order and relief from sanctions refused.
This was an application by the Defendant for an extension of time for compliance with an Unless Order and for relief from sanctions. The claim concerns a Royal Marine who became ill with Q fever in October 2010 and developed serious chronic fatigue syndrome as a consequence. He claims he should have been given antibiotic doxycycline as a prophylactic before he went to Afghanistan and/or as soon as his symptoms materialised and the failure to do so was a breach of the Defendant’s duty of care. The issues in this case surrounded the Defendant’s knowledge in 2010 regarding Q fever and, given that knowledge, the basis for the treatment chosen for the Claimant.
This case had a long history of issues surrounding disclosure from the Defendant. Following standard disclosure the Claimant issued an application for specific disclosure. The Defendant consented, prior to the hearing, to give disclosure by 18th September 2015 and consequently the trial had to be relisted for early October 2016.
The Defendant applied for an extension of time in May 2016, over eight months after the date on which it had agreed to provide the documents, to 21st October 2016. That application, as well as the current one, had been supported by a statement from an MOD official, setting out a timetable for compliance which the Defendant described as “realistic” and allowed for PII (Public Interest Immunity) considerations. By the hearing before Mrs Justice Laing J in July 2016 the documents should have been identified and processed and nothing was said to indicate to her that there had been any slippage. Laing J allowed the application and made an Order requiring the Defendant to comply with the previous Order of September 2015 regarding the full disclosure of various documents by 4pm on 21 October 2016 and provide disclosure on a ‘rolling’ basis as documents became available. The consequence of failing to comply was that “the Defence shall be struck out and Judgment shall be entered for the Claimant for damages to be assessed by the Court”. The trial date was also vacated and a CMC listed for 11 November 2016.
The Defendant issued its application for extension and relief from sanctions on 20 October 2016, notably at the last minute. The Court was not satisfied with the reasons provided for that delay and said it must have been obvious that the Defendant was not going to be able to comply long before that date. The late issuing of the application meant it could not be heard before the deadline for compliance expired. Indeed, by the date of the hearing the Defendant had still not fully complied with the Order and sought a further two months’ extension to comply.
The first disclosure was sent to the Claimant’s solicitors in mid-September 2016, with further disclosure sent on 12 October and 20 October 2016. There were issues about how the documents were presented to solicitors – being in a random order, undated, no provenance, duplication and no context provided. The Defendant also asserted more documents had been found in searches, over 5,000 when it had been said in May 2016 there were 3,624. The new timetable proposed was non-PII disclosure by 23 December 2016 and 23 January 2017 for those which might attract a PII claim.
Although this was not technically an application for relief from sanctions, as those sanctions had not yet been enforced, the court still applied the reasoning provided in Denton v TH White Ltd  1 WLR 3926. The court also considered recent cases involving non-compliance with an Unless Order, such as Jackson LJ in Oak Cash & Carry Ltd v British Gas Trading Ltd  EWCA Civ 153 and Suez Fortune Investments Ltd and others v Talbot Underwriting Ltd and others  EWHC 1085 (Comm).
The court was fairly critical of the Defendant, stating that the Order was not for it to use its “best endeavours” and there was an expectation that the Defendant would concentrate resources and comply with the Order, especially as the Court had previously been reassured that this was a realistic timetable. Andrews J accepted that this was not a deliberate flouting of the order, but rather that more documents than envisaged needed to be processed and efforts had been made to comply. Nevertheless, the failure to disclose the balance of documents seemed to be entirely resource-driven which “is not and never has been a sufficient excuse”. Andrews J was unimpressed by the excuses for non-compliance: the pressures of other work and demands on staff was also an insufficient excuse.
The court gave particular consideration to the factors in CPR 1.2(d),(e)and (f), and commented that an Unless Order is a last resort and the Defendant had been provided clear warning by Laing J that further indulgence was very unlikely to be given. She had classed the previous breach as serious, significant and long-standing. In considering the third factor in Denton, Andrews J noted the trial date would now be unlikely to take place until 2018 which is five years after the claim form was issued. The Claimant was still suffering from a depressive disorder, his CFS has a poor prognosis and he was faced with the claim hanging over him even longer. The claim did have reasonable prospects of success and the disclosure may support the claim further. The Defendant argued it had a good arguable defence.
Ultimately, the court held that “Unless Orders should mean what they say”. The Defendant knew the risk and whilst they were not deliberately flouting the order it was not appropriate to provide any further indulgence. The application was refused and judgment on liability entered in favour for the Claimant with damages to be assessed.
This case serves as a clear reminder that applications for non-compliance should be made at the earliest possible opportunity and are not going to be treated lightly. Furthermore, this is a stark reminder that Unless Orders are likely to be strictly enforced by the court even where a party has a good arguable defence and there has not been a deliberate breach of a court order.