DENTON, DOCUMENTS AND DELAY: FAILURES IN DISCLOSURE LEAD TO APPEAL BEING STRUCK OUT
In Walton -v- Allman  EWHC 3325 (Ch) Mr Justice Snowden upheld a decision refusing relief from sanctions. It is a case that shows the importance of considering, and making full disclosure and the dangers of taking a “wrong-headed” view of the duties of disclosure.
“ There is a new climate arising out of the revision of CPR 3.9. Decisions such as Mitchell, and as Denton, show that the court will be far less tolerant of breaches that it has been in the past. Parties and practitioners must understand that they must obey court orders and comply with them, or promptly apply for relief from sanction. This is not a prompt application. It is made on the morning of the hearing.”
- An application for relief from sanctions made on the morning of an appeal was refused.
- The appellant had failed to comply with a peremptory order to disclose relevant documents.
- This breach was serious and significant.
- There was no good reason for the breach.
- The judge had been correct in finding that all the circumstances of the case did not dictate granting relief from sanctions. In fact the circumstances of this case dictated the opposite.
- This case is as important in relation to the nature of the duty of disclosure as it is in relation to relief from sanctions.
- The case emphasises the needs to look at the terms of a peremptory order and ensure that they are fully complied with.
- It is, albeit on a different scale, akin to the decision in Smailes -v- McNally  EWHC 1755 (Ch) where relief from sanctions was refused after failure to give disclosure in accordance with a peremptory order.
The case involved a dispute over the sale of a pony.
- Mrs Walton issued proceedings against Mrs Allman.
- In those proceedings Mrs Allman sought an order for security for costs against Mrs Walton.
- Mrs Walton served a witness statement in response which stated “I verily believe that by virtue of marriage my contribution to the marriage, both as a wife and a mother, I have an equitable interest in the property and there is nothing that renounces this equitable interest”.
- Mrs Walton’s action was unsuccessful and costs were awarded to Mrs Allman.
- The costs were not paid and Mrs Allman made an application for a charging order against the property that Mrs Walton had stated she had an equitable interest in.
- Mr Walton disputed that his wife had an equitable interest and he was given given permission to intervene.
- At the trial of this issue Mrs Walton did not give evidence (even though she was present). Mr Walton gave evidence but the judge disbelieved that evidence and and a further order for costs was made.
- The Waltons appealed and it was ordered that appeal be heard by way of a rehearing before a Circuit Judge (the trial having been before a District Judge).
THE DIRECTIONS MADE FOR THE APPEAL
One point that had been made at the initial trial was the Waltons’ failure to disclose relevant documents. When granting permission to appeal the judge made directions to deal with this.
“3. Mr and Mrs Walton must by 4.00 pm on 3 November 2014 give disclosure of all documents which have been in within their possession or control relating to,
a. the circumstance in which Mr Walton acquired the property;
b. all dealings by either of them with the property since Mr Walton acquired it including any dealings by the creation or satisfaction of charges, the making of or paying for improvements to it and the provision of purchase money if any;
c. any applications for planning permission made in respect of the property since Mr Walton acquired it;
d. any other matters relevant to the beneficial ownership of the property.
THE FAILURE TO COMPLY WITH THE ORDER
The Waltons gave disclosure of some documents but these did not include any bank statements or a number of other categories of documents. There was then a chain of correspondence with Mrs Allman’s solicitors seeking those documents, in particular bank statements. The bank statements were disclosed the week before the appeal (on the 29th January 2015).
THE DECISION OF THE JUDGE AT FIRST INSTANCE
The judge held that there had been a breach of the order for disclosure and that, consequently, the appeal stood struck out.
THE APPLICATION FOR RELIEF FROM SANCTIONS
The judge gave the appellants an opportunity to apply for relief from sanctions.
HHJ Godsmark QC then indicated that he had allowed Mrs Bailey-Harris time to make an application for relief against sanctions and to obtain a witness statement from Mr Brook. HHJ Godsmark QC summarised that evidence in a way which, in my judgment, was entirely accurate. He said,
“11. I hope I do not do injustice to the witness statement if I say that in essence Mr Brook says that he felt that there had been compliance at the time of disclosure. He did not think that bank statements were particularly necessary, and so had not requested them. Indeed he accepts that when pressed by the other side, by Mrs Allman’s solicitors for bank statements, he responded to say he did not think they would take matters any further. The witness statement is silent as to the reason for non production of a witness statement dealing with the absence of documentation, which is referred to elsewhere in Mr Brook’s witness statement. For example, there are no invoices in relation to improvements of the property, there are no accounts for the businesses which are run by either one or both Mr and Mrs Walton. There is no explanation for the absence of these documents.“
HHJ Godsmark QC then dealt with the application for relief from sanctions on the basis suggested by the Court of Appeal in Denton v TH White Limited  1WLR 3926. He did so in the following terms:
“12. I have to deal with the application before me on Denton terms. There is a three stage test. The first part of the test is to consider whether or not the breach is serious or significant. I have no hesitation in concluding that this was both a serious and significant breach of the order of Judge Inglis. It was late disclosure, there has been failure to disclose, there is no witness statement of explanation for the lack of possession of documentation. This is a hearing which is dependant upon disclosure. It is disclosure which is lacking, and which has caused the major problem in any potential for pursuing this hearing today. So I certainly categorise the breach as serious and significant.
13. Stage two of the test is to go on and consider why the default arose; was there a good reason? The conclusion that I come to is that no good reason is advanced. Mr Brook says that he thought that there had been compliance, but as I say, it is difficult perhaps to understand that given that the need for disclosure of bank statements had been raised in Counsel’s skeleton argument for the first instance hearing, let alone the appeal. It is also at the centre of any exploration such as this. The Court would need to know what financial arrangement there were between the parties, what contributions each made financially to the expenditure, particularly expenditure on the property under consideration. One cannot do that without looking at bank statements. There is in addition, as I say, no explanation for the failure to file a witness statement of explanation as to the absence of any documentation. So the second stage is fulfilled also.
14. So far as the third step is concerned, I need to evaluate all the circumstances of the case. The requirement that litigation be conducted efficiently and at proportionate cost, and of course, the interests of justice. I am afraid this case has been an example of how litigation is conducted inefficiently. Disclosure is still not complete. The Santander bank account statements have not been disclosed in their entirety, we have a mini statement, a snapshot on one particular date. That discloses the existence of a bank account, and nothing more. Today, we have heard of funding which came from an inheritance. That is the first I have heard of that. The disclosure, and indeed the witness statement of the parties, are silent as to how much and how it was used, and when. There is still no witness statement explaining the absence of documents to be expected. I say no witness statement, no witness statement from either Mr or Mrs Walton. There is some discrepancy perhaps in that I am being told in one sense that improvements to the property have been paid for in cash, and in another, in the witness statement of Mr Brook, that the Intervenor, Mr Walton, undertook them himself. It is not clear to me whether that means with his own hands, or whether it means with his own financial resources. But if it is with his own hands, it needs explanation. If it is his own financial resources, there needs to be a witness statement or disclosure.
15. I marry into this the fact that there has been a history of breaches, as set out in the judgment by District Judge Davies. He did not allow relief from sanctions on the day of his hearing, and the late production of documents at that stage.
16. It is suggested that I allow this application for relief from sanctions. It is conceded that inevitably today’s trial will have been aborted, and that we will have to adjourn off to another day, in effect to give the Appellants a third bite of the cherry. That means that further work is going to have to be done to get this case into a ready state for trial. It should have been ready back in November, or December. It is still not ready in January. This is not the efficient conduct of litigation, and it is to be deprecated.
17. There is a new climate arising out of the revision of CPR 3.9. Decisions such as Mitchell, and as Denton, show that the court will be far less tolerant of breaches that it has been in the past. Parties and practitioners must understand that they must obey court orders and comply with them, or promptly apply for relief from sanction. This is not a prompt application. It is made on the morning of the hearing.
18. I have no hesitation in coming to the conclusion that this is a prime example of a situation where relief from sanctions should not be granted due to the rather haphazard way in which this matter has been prepared for trial today. The application is refused. The order of [District] Judge Inglis dismissing the appeal will stand.”
THE DECISION ON APPEAL
Mr Justice Snowden held:
- The decision that the breach was serious and significant was entirely appropriate.
- There was no good reason for the breach.
“The history of the matter which I have set out shows that the need for disclosure of the relevant bank statements had been raised between the parties at a very early stage. They were obviously relevant documents and it is apparent from the correspondence and the evidence of Mr Brook that both Mrs Walton and her solicitor took a wrong-headed view as to whether they were required to be searched for or produced from the outset.”
- The application in relation to the third stage had been entirely appropriate.
At this stage of the enquiry it should be borne in mind that this is a dispute over an appeal against a charging order in respect of what was initially an order for payment of £30,000 of costs. At the time of HHJ Godsmark QC’s ruling, the outstanding amount of costs outstanding had increased to over £42,000. The defaults in disclosure inevitably resulted in further costs being wasted that would also have been ordered to be paid by Mr and Mrs Walton in any event. None of the costs outstanding have been paid. Those factors must tell heavily against permitting relief from sanctions so as to require yet more costs to be spent on the issue of the charging order.
It also appears that there had been significant delay caused by the previous breaches and failures to comply with court orders in the past by Mrs Walton. To allow Mrs Walton relief against sanctions would have resulted in more delay and, as I have indicated, there was still no assurance that all the relevant documents had been or would be disclosed or their absence explained.
The judge then dealt with the question of whether a charging order could be made without the court ascertaining the degree of the beneficial interest. The judge held that it could.
Nearly all the important decisions on relief from sanctions (and the posts on them in this blog) are in the Sanctions: Case Watch section.
[…] complicated, both in the judgment itself and in Gordon Exall’s helpful summary (see Denton, Documents and Delay: failures in disclosure lead to appeal being struck out). This is partly because it was a case derived from the outcome of another case, and partly because […]