Judgment for non-compliance with disclosure unless order (Eaglesham v MOD)

Judgment for non-compliance with disclosure unless order (Eaglesham v MOD)

46414989 - legal law concept imageThe Queen’s Bench Division refused the defendant’s application for a (further) extension of time in which to comply with an unless order for disclosure. Consequently, judgment was to be entered on liability with damages to be assessed.

In coming to its decision, the court applied the Denton guidelines (even though this was not technically a relief from sanctions application) and, in doing so, took into account the defendant’s behaviour, the timing of the application, the effect granting the application would have on the case and the overriding objective. This case offers many practical tips on disclosure and on complying with orders generally and unless orders specifically.

This was originally published Lexis®PSL on 29 November 2016. Discover how Lexis®PSL can help you stay on top of the latest developments and find the answers you need fast, click here for a free trial to access

What are the practical implications of this case?

Practical implications arising from this judgment include:

  • act promptly—'a party who faces genuine difficulties in compliance 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' (para [4]). Further, where your application for an extension of time is made close to the deadline for compliance, ensure you can evidence and explain the lateness of the application
  • relief may be granted if the 'relevant default has been cured' (ie there is actual or anticipated compliance) or compliance can be dispensed with without doing injustice between the parties (para [6])
  • when providing disclosure, try to do so in a helpful way—here, the documents provided were criticised by the claimant as being 'in random order, with no explanation as to where they have come from, no explanation of the context in which they were prepared, and no explanation of the acronyms/abbreviations used in them. She says that some are duplicates, and that many of them are undated—which as Ms Bowler points out, is singularly unhelpful in a case in which the Defendant’s state of knowledge at particular dates is crucial. There has been no attempt by the Defendant to give even a broad range of dates or details of where the undated documents were found or which department they came from' (para [21])
  • think carefully about appropriate search terms—here, the court expressed surprise that further search terms now identified had not been used in the first place as it suggested the 'original electronic search was not carried out as carefully or conscientiously as it should have been'. Further, take time to liaise with relevant stakeholders as to different terminology and/or code names that may have been in use to ensure they are also searched for (paras [26] and [31])
  • the court is unlikely to be sympathetic to arguments that disclosure is a resource-heavy and time-consuming task, particularly where this is not the first application for an extension of time and where those facts were known previously
  • using best endeavours to comply will not usually satisfy the court that there has not been a breach of an order (para [36])
  • failing to comply due to a lack of resources 'is not and never has been a sufficient excuse'—'the pressure of other work and demands on the time of staff, including [subject matter experts], is also an insufficient excuse, since those factors were known at the time when the original estimate was given and were built into the supposedly “realistic” timetable put before Laing J.  If a team of six counsel was insufficient to carry out the filtering exercise in time, the Defendant could and should have instructed more. I am not persuaded that the time and effort involved in educating new team members would outweigh the efficiencies to be gained by bringing them on board if further human resources became necessary' (paras [38] and [42]). Arguably, this is even more so where the deadline has already been extended as processes, resources, technical issues, etc ought already to have been factored into the revised deadline (para [36])
  • it is for the applicant to persuade the court that it is an appropriate case in which to grant an extension of time for compliance (para [39])
  • the court is unlikely to be sympathetic to 'excuses' that the volume of documentation could not have been foreseen. It may also consider carefully whether delays relied on truly were beyond the applicant's control, whether the searches were conducted in a 'sufficiently thorough manner' and whether the court was presented with a 'realistic timetable on the basis of what was known at the time' (para [41])
  • this seems to be another decision, in an increasing line of authorities, indicating that the courts are unlikely to grant relief where there has been a beach of an unless order—see, for example:

 Further Guidance

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About the author:

Virginia specialises in general domestic and international commercial litigation, arbitration and alternative dispute resolution.

Virginia trained, qualified and practiced with Pinsent Masons before moving to Marriott Harrison where she continued in practice for a further seven years.

In practice, Virginia acted in a variety of general commercial disputes covering areas including  intellectual property, fraud, defamation, misrepresentation, breach of contract, debt recovery, breach of restrictive covenants and company and shareholders’ disputes.

Virginia is Head of Dispute Resolution at Lexis®PSL and, when not focused on the strategic development and operational requirements of the Dispute Resolution module, her content work focuses on case management and evidence in civil litigation. She also regularly contributes to the LexisNexis Dispute Resolution Blog.