HAVE YOU COMPLIED WITH AN ORDER FOR DISCLOSURE? THE APPROPRIATE TEST: AN OBJECT LESSON ON LITIGATION TACTICS IN A POST-MITCHELL WORLD

 With relief from sanctions being notoriously hard to obtain the question of whether a party has complied with an order, particularly an unless order, is now of critical importance. In Dinsdale Moorland Services Ltd –v- Evans 2014] EWHC 2 (Ch) Judge Behrens (sitting as a judge of the High Court) considered the test for compliance.  The case is an object lesson in the tactics that are likely to employed in the post Mitchell world of litigation.

DINSDALE: THE FACTS

This was an action concerning the dismissal of two former employees and alleged breach of covenant.  The Defendants’ solicitor had filed one list of documents for three of the defendants. This was held to be inadequate because three separate lists were needed. At a case management hearing, the District Judge made a peremptory order in relation to the filing of a list of documents.

THE ISSUE BEFORE JUDGE BEHRENS

The claimant complained that the Defendants had not given full and proper disclosure. Consequently the action stood automatically struck out as a result of the defendant’s failure.  Prior to the case management conference where the order was made the claimant had made general complaints about inadequate disclosure but those complaints were never particularised.

The documents which the claimant said was not disclosed were, in fact, copies of the documents that the claimant already had.  The issue was whether these documents were relevant and whether, in not disclosing them, the defendants had breached the peremptory order.

THE RELEVANT TEST

Judge Behrens considered the law in relation to peremptory orders:

“11.4 The Law

Unless Orders

123. I was referred to two cases on the effect of an “unless order” – Hytec v Coventry City Council [1997] 1 WLR 1666 and Marcan Shipping v Kefalas [2007] 1 WLR 1864.

124. In Hytec Auld LJ said at 1677F that:

… that the essential notion in play is whether a party’s failure to comply with an order is without fault or is inexcusable, the latter in the sense of being without a reasonable excuse.

In my judgment, there is no need to confine the test to that of an intentional disregard of a court’s peremptory order, whether or not it is characterised as flouting, contumelious, contumacious, perverse, obstinate or otherwise. Such an intent may be the most usual circumstance giving rise to the exercise of this jurisdiction. But failure to comply with one or a number of orders through negligence, incompetence or sheer indolence could equally qualify for its exercise. It all depends on the individual circumstances and the existence and degree of fault found by the court after hearing representations to the contrary by the party whose pleading it is sought to strike out.

125. In Marcan the Court of Appeal made clear that in accordance with CPR 3 the sanction embodied in an “unless” order took effect without the need for any further order if the party to whom it was addressed failed to comply with it in any material respect. I was referred to paragraphs 34 to 36 of the judgment of Moore-Bick LJ:

34. In my view it should now be clearly recognised that the sanction embodied in an “unless” order in traditional form takes effect without the need for any further order if the party to whom it is addressed fails to comply with it in any material respect. This has a number of consequences, to three of which I think it is worth drawing particular attention. The first is that it is unnecessary, and indeed inappropriate, for a party who seeks to rely on non-compliance with an order of that kind to make an application to the court for the sanction to be imposed or, as the judge put it, “activated”. The sanction prescribed by the order takes effect automatically as a result of the failure to comply with its terms. If an application to enter judgment is made under rule 3.5(5), the court’s function is limited to deciding what order should properly be made to reflect the sanction which has already taken effect. Unless the party in default has applied for relief, or the court itself decides for some exceptional reason that it should act of its own initiative, the question whether the sanction ought to apply does not arise. It must be assumed that at the time of making the order the court considered all the relevant factors and reached the decision that the sanction should take effect in the event of default. If it is thought that the court should not have made an order in those terms in the first place, the right course is to challenge it on appeal, but it may often be better to make all reasonable efforts to comply and to seek relief in the event of default.

35. The second consequence, which follows from the first, is that the party in default must apply for relief from the sanction under rule 3.8 if he wishes to escape its consequences. Although the court can act of its own motion, it is under no duty to do so and the party in default cannot complain if he fails to take appropriate steps to protect his own interests. Any application of this kind must deal with the matters which the court is required by rule 3.9 to consider.

36. The third consequence is that before making conditional orders, particularly orders for the striking out of statements of case or the dismissal of claims or counterclaims, the judge should consider carefully whether the sanction being imposed is appropriate in all the circumstances of the case. Of course, it is impossible to foresee the nature and effect of every possible breach and the party in default can always apply for relief, but a conditional order striking out a statement of case or dismissing the claim or counterclaim is one of the most powerful weapons in the court’s case management armoury and should not be deployed unless its consequences can be justified. I find it difficult to imagine circumstances in which such an order could properly be made for what were described in Keen Phillips v Field as “good housekeeping purposes”.

UNLESS ORDERS IN RELATION TO DISCLOSURE REQUIREMENTS

 “Unless orders in relation to disclosure

130. I was referred to two authorities – Realkredit Danmark v York Montagu reported in Westlaw at [1998] WL 104421 and Re Atrium [2013] EWHC 2882.

131. Realkredit involved the dismissal of a claim for failure to comply with an “unless order” for discovery. A list was provided within the relevant time but it was alleged to be deficient. At first instance it was held that the list was woefully inadequate. There was no evidence that satisfied the judge that it had been undertaken in careful fashion and large gaps remained. Accordingly he held there was a failure to comply with the “unless order” and struck the case out. The Court of Appeal allowed the appeal. A number of passages from the judgment of Toulson LJ show the basis of the decision:

There was nothing unclear about the order made in this case, in that it required service of a list of documents. But a list was served so, prima facie , the order was complied with. Interestingly there is no reported case of an action being struck out as a result of a list being incomplete. But there is in the much litigated field of Further and Better Particulars where, in Reiss v Woolf [1952] 2 QB 557, at pages 559–560, the Court of Appeal approved a passage from the judgment of Devlin J who said:

“So construed, ‘default’ refers to default in the delivery of a document within the specified time. I do not, of course, mean that any document with writing on it will do. It must be a document made in good faith and which can fairly be entitled ‘particulars’. It must not be illusory; … That is the test, in my judgment, and not as the plaintiff contends, whether each demand for particulars has been substantially met.”

… In the present case the court was only concerned with whether the unless order had been complied with. The lenders had conceded that the valuers’ affidavits would have justified the making of an order for specific discovery. But no such order was sought or made. Had the judge been asked to make such an order he would have had to consider in relation to each category of documents identified in the application the arguments about relevance and necessity which are deployed at length in the skeleton arguments for this appeal and were deployed before the judge.…

Applying the language of Reiss v Woolf , I think the lenders’ list could fairly be described as a list. It was not illusory. It would still be a list even if a subsequent application for specific discovery had elicited further documents. So I think the judge was persuaded to adopt the wrong approach and applied the wrong test to the valuers’ application to dismiss the claim and therefore his decision cannot stand. This was not simply an exercise of the judge’s discretion. In my judgment if he had approached the question he had to decide in the way I think he should have done he would have decided that the lenders had complied with the unless order.

I do not think that the conclusion I have reached will mean that unless orders for discovery are worthless. In many cases where they are made no list is served at all. Both counsel conceded, rightly in my judgment, that a court could infer lack of good faith where it was obvious from patent deficiencies in the list that it had been prepared in apparent but not real compliance with the obligation to give discovery.

132. Re Atrium involved an unless order in relation to an unless order requiring the liquidators to conduct a search for documents falling within CPR 31.6 by a specified date. In the course of his judgment Birss J referred to a classification of the authorities by Counsel which he did not, in the end find helpful. In paragraph 30 he referred to the decision in Realkredit and pointed out it had been followed in two subsequent Court of Appeal cases. In paragraph 31 he explained Realkredit thus:

There the Court held that since a list had been served, prima facie the relevant order had been complied with. The remedy, if a party is dissatisfied with a list already provided, was an application for further disclosure. The question of compliance with the court order was not simply an exercise of the court’s discretion. In the case before the court the list provided could not be called illusory.

133. In paragraphs 33 and 40 he made the point that in order to determine if there is a breach one needs to determine exactly what the order requires the party to do. He had to consider whether the liquidators had carried out a reasonable search. This could be done on inference but the deficiencies would have to be so significant that it could be said that a reasonable search had not been carried out.”

THE ALLEGED BREACH IN THE CURRENT CASE

The judge went through the claimant’s objections and found that some of the documents complained of were not relevant, or that there had been accidental omissions.   However lists of documents had been provided and, on the facts of this case, this was sufficient.

“11.6 Discussion and conclusion.

146. I propose to follow the approach of the Court of Appeal in Realkredit. This is a case where lists have been provided. It is plain that there are some defects in the lists. However the fact that an application for specific disclosure would or might elicit further documents does not mean it is not a list. I am not satisfied that there was a lack of good faith by the Relevant Defendants in preparing the lists. Equally I am not satisfied that the lists are illusory. The final test suggested by Toulson LJ is whether “it was obvious from patent deficiencies in the list that it had been prepared in apparent but not real compliance with the obligation to give discovery”.

147. To my mind it is far from obvious that this is the case. In forming that view I have taken into account the correspondence both before and after the order of D J Jordan. The criticism of the lists before D J Jordan was that there were not separate lists for each of the Relevant Defendants. It is to my mind relevant that Mrs Chamberlain sought to co-operate with Mr Kirkby in relation to disclosure, that despite requests Mr Kirkby did not particularise the respects in which the list was defective until 6^th September 2013 when he raised one of the matters relied on at the hearing. It is relevant that detailed particulars of alleged breaches were not given until 26^th November 2013. It is relevant there was no suggestion that there was a breach of the unless order until 6^th September 2013 and that between 1^st July 2013 the Defendants had been actively preparing for trial. For my part I would have expected any application for a declaration that the defence had been struck out to have been brought promptly. It is relevant that despite references in the correspondence no actual application for specific disclosure was made.

148. In all the circumstances the Claimant’s application for a declaration that the has been struck out is dismissed.”

 YOU ARE STRUCK OUT NOW! A FEATURE OF MODERN LITIGATION

One, perhaps unintended, result of the Mitchell decision is that arguments such as this – where a party argues that there has been non-compliance and their opponent needs relief from sanctions – are going to be a central feature of litigation.  The difficulties in obtaining relief from sanctions mean that there are strong incentives for litigants to argue that there has been non-compliance. The litigant will argue that that there is a sanction, and that their opponent requires relief from sanctions.

Some District Judges inform me that applications for extensions, for relief and/for declarations that there have been a breach are taking up major parts of their daily lists.

How this has led to the saving of court time and judicial resources is a mystery. We have that wonderful scenario of lawyers arguing between themselves on abstruse points of law and procedure whilst the merits of the case themselves are totally forgotten. How this leads to saving of costs is even more of a mystery.

(It should be noted that a peremptory order was made in the case not because of any particularised allegation of failure to disclose documents but because the defendants’ solicitor (in an effort to reduce costs) had filed one generic list for three defendants and not one.)

THE LESSONS TO LEARN: BE PREPARED OR PREPARE: BUT FORGET THE MERITS OF THE CASE FOR THE TIME BEING

Every litigator should read this case just to understand that tactics that are now going to be employed.

1. Forget the merits of the case. (Or maybe be aware that your own case has no merits and your only hope lies in a procedural knockout).

2. Hope that your opponent will have overlooked some issue of procedure, disclosure or a time limit.

3. Argue they are in breach.

4. Argue they should not have relief from sanctions.

This is not a criticism of any litigators involved or those taking those points. Indeed those running those arguments are most probably bound to pursue these issues since it may be negligent not to do so.

(It should be noted that a peremptory order was made in the case not because of any particularised allegation of failure to disclose documents but because the defendants’ solicitor (in an effort to reduce costs) had filed one generic list for three defendants and not one.)

DISCLOSURE

Disclosure is an area rife for argument about compliance. It is unlikely that this will be the last case on this issue.  Handle all issues of disclosure with extreme care.

FINDING THE CASE

The case can be found at http://www.bailii.org/ew/cases/EWHC/Ch/2014/2.html

RELATED POSTS

The issue of a failure to comply with disclosure requirements is considered at http://civillitigationbrief.wordpress.com/2013/10/04/have-you-complied-with-an-unless-order-guidance-in-the-context-of-e-disclosure/