NON-COMPLIANCE WITH PEREMPTORY ORDERS: THE FULL JUDGMENT IN POWELL -v- WATFORD BOROUGH COUNCIL

I have written before about the judgment of Mr Justice Jay in Powell -v- Watford Borough Council [2017] EWHC 2283 (QB). The full transcript has now become available. It deals with an important point about the need to follow the rules and practice directions when complying with an order for disclosure. In this case the defendant failed to comply and the defence was, therefore, struck out  -regardless of the fact that the defendant had successfully defended the action at trial.  (As it happens the decision of the judge at trial was also overturned on appeal)

“In my judgment there was not compliance with the Rules and the Practice Direction. There was an obligation to specify in line  with the Practice Direction and the Rules themselves the identity of the person making the disclosure statement, the position within the local authority, name and address etcetera, and what we have instead is a hearsay statement, entirely unsatisfactory in my view, from the defendant’s solicitor, stating what she may or may not have been told by others”

SUMMARY OF THE FACTS

• The claimant, then aged 12 was injured by broken glass when playing in the grass play area a park operated by the defendant.
• Proceedings were issued and a defence filed which denied liability and asserted that the defendant was not aware of any problems in the park in particular.
• after a peremptory order was made the defendant gave disclosure.
• The disclosure list was sparse, only listing “inspection records”, it was signed by an “insurance officer”. It did not state why that person was the appropriate person to sign the disclosure list.
• The action was allocated to the fast track and listed for trial.
• At trial it became clear that the damages were more serious and for this, and other reasons, the trial – listed before a district judge – was adjourned.  The case was re-allocated to the multi-track.
• At that stage the judge observed that the defendant’s disclosure appeared inadequate and that other documents would be expected in relation to the defendant’s policy in relation to health and safety in the parks.
• An order was made that the defendant give disclosure of all relevant policy documents. The order stated “The Defendant shall carry out a search for any policy documents relating to inspection regimes applicable to its public open spaces and shall provide disclosure of any such documents by 1 June 2016.”
• The defendant did not respond and a peremptory order was made.
• The defendant then wrote a letter stating that a search had been made. The letter asserted that there were no such documents.
• The claimant argued that this was not satisfactory and that the order  for specific disclosure had not been complied with.  The claimant applied for judgment on liability (disclosing with that application a copy of the defendant’s letter of “compliance”).
• Judgment was entered on liability by the circuit judge on the claimant’s application.
• The defendant applied to set aside judgment on the basis that the letter meant that they had complied.
• The claimant opposed the application on the basis that the letter was not compliance. Further a search of the internet had disclosed one policy document which was clearly relevant and that the defendant should have disclosed.  These documents included a clear indication that the defendant should carry out risk assessments and have written policies in place.**
• The circuit judge set aside the order holding that the defendant’s letter could have constituted compliance.
• The action was listed for trial on liability a few days after the setting aside was heard. The claimant indicated that an appeal would take place and asked for the trial to be adjourned.
• The judge refused the claimant’s application. An appeal on this point was refused.
• The matter went to trial on the issue of liability. The claimant lost.  It became clear at the trial that the defendant was well aware of the problems with broken glass in the park and its defence was that workmen regularly cleared up that glass.
• The claimant appealed to the High Court judge both the interlocutory decision in relation to setting aside the judgment and the decision at trial.
• The claimant was successful on both aspect of the  appeal.

THE JUDGMENT ON THE PEREMPTORY ORDER ISSUE

Mr Justice Jay considered the issue relating to the making (and setting aside) of the peremptory order.

“13. But it is necessary first of all to consider the first appeal, which is against the order of 18 October 2016. The backdrop for the consideration of the first appeal is the relevant rules and practice directions set out in Part 31. There is an obligation under Rule 31.7 to carry out a reasonable search, and various factors are there stated. Under Rule 10, which is the Rule dealing with standard disclosure, there is an obligation to provide a disclosure statement. Under sub-rule (6), a disclosure statement must set out the extent of the search that has been made to locate documents which the party is required to disclose, a certificate that that party understands the duty to disclose and certifying to the best of that party’s knowledge he, she or it has carried out that duty. The statement must also identify the person making the statement and explain why he or she is  the right and appropriate person: that is sub-rule (7).

14. Rule 31. 12 is also germane since this in essence was the basis for the order made by District Judge Wood on 4 May. This is the Rule which deals with specific disclosure. Under sub-rule (2):

“(2) An order for specific disclosure is an order that a party must do one or more of the following things –

[…]

• carry out a search to the extent stated in the order;

• disclose any documents located as a result of that ”

15. If an order for specific disclosure is made, then by necessary implication there is an obligation to comply with Rule 10, which specifies, as I have already said, how the disclosure statement must be prepared and filed. Practice Direction 31A is also relevant.   This is the general Practice Direction dealing with disclosure and inspection. Under Rule 4, further information is supplied as to what the disclosure statement should contain. It must include the name and address and the office or position of the person making the statement in the case of an entity such as this, namely a corporation sole. The disclosure statement must also state that the disclosing party believes the extent of the search to  have been reasonable in all the circumstances. Specific disclosure is dealt with by paragraph 5 of the Practice Direction (it does not in  my view add much),  and the annex is the standard form for a disclosure statement.  The standard form does not have to be used. In my view the substance of the matters set out in the form must be covered.

16. What is said here by Mr Gordon Exall on behalf of the claimant is that there has been a complete failure to comply with the Rules and the Practice Direction. He relies on failure to comply with Rule 31.10 and 31.12, failure to comply with a practice direction, in particular paragraph 4 and the substance of the annex. Secondly, the letter itself (that is to say, the letter of 4 July) is woefully unparticularised, which is true.  I am not sure  that adds much to the  first point. The letter does not say, for example, who carried out the search. It does not say who gave instructions to the author of the letter. It does not comply with the letter or the spirit of the Rules or the Practice Direction.

17. Thirdly, the point is made that in any event there was material before HHJ Harris on 18 October; that there were documents, or at least one document which had not been disclosed, so that was proof positive that the letter of 4 July was Reference here is made to a document entitled “Watford Borough Council Green Spaces Strategy, January 2007 to March 2012”. It is to be noted first of all that the document ended in temporal terms 13 days before this accident. Ms Allen submitted that it was therefore irrelevant, but I cannot agree for two reasons. First of all, it was relevant to the system or lack of it which was in place or not in place at all material times until 31 March 2012; and secondly, in the absence of other evidence, one would have  thought that the document continued to be in place from 1 April 2012 and, if it  was not, then one asks forensically: where was the relevant document?  None has been provided.  So,either way, the defendant is  caught on Morton’s fork.

18. We did examine the document in oral argument, in particular page 215. Policy 20 is It deals with health and safety. There is an obligation to maintain inspection records. That in my judgment is  not the  real point here since we do have some  inspection records provided in the standard disclosure list. I am not sure point 20.2 is relevant, but 20.3 is certainly relevant: “The Council will maintain up-to-date operational risk assessments and codes of practice”. Then there is reference to health and safety training. That would be of marginal relevance. Then there is reference to general compliance with health and safety requirements.  It is true that the primary focus of this document is the safety of staff, but it does apply equally (or perhaps not with the same force; it does apply, though) to “individuals that use our parks” (see eight or nine lines down page 215). So it applies to  visitors, of which of course the claimant was a paradigm example.

19. Ms Allen submitted she accepted that the letter of 4 July was not strict (to use her epithet) compliance with the Rules and the Practice Direction. However, she relied on the witness statement at page 143 (I have already read it out), which she said did amount to  compliance. She also took a textual or semantic point in relation to District Judge Wood’s order, that there was only an obligation to furnish and disclose policy documents relating to inspection regimes and, strictly speaking, she submitted, the document we have been considering did not fall within the ambit of that order. In the alternative Ms Allen submitted that this was tantamount to an application for relief from sanction and that in essence, although she cannot recall having made a submission to that effect, HHJ Harris relieved the defendant from sanction on 18 October.

20. In my judgment the legal principles governing this first appeal are clear.  My attention was drawn by Mr Exall to a decision of the Court of Appeal in Smailes v McNally & Ors [2014] EWCA Civ 1299. That is authority for the proposition (if authority were  required) that compliance with a court order is not a matter of discretion for  the lower court.  It is really a matter of law for any subsequent court considering the issue.  To use a term which is quite fashionably deployed nowadays, which I do not shrink from using, compliance or non- compliance is binary. Either there has been compliance or there has not been. The adjective “strict” does not add anything, although it could be relevant at a second stage of the analysis, namely whether there should be relief from sanction. So the question then for me  is whether there was compliance with the order of District Judge Wood in the form of the letter of 4 July 2016, and I am prepared to accept for these purposes the witness statement which is appended to the application notice.   That in  fact is being very generous to the defendant.

21. In my judgment there was not compliance with the Rules and the Practice Direction. There was an obligation to specify in line  with the Practice Direction and the Rules themselves the identity of the person making the disclosure statement, the position within the local authority, name and address etcetera, and what we have instead is a hearsay statement, entirely unsatisfactory in my view, from the defendant’s solicitor, stating what she may or may not have been told by others. Furthermore, the letter of 4 July does not stipulate in any meaningful sense what searches were carried out. There is  just a blanket assertion that no documents were located. In my judgment that was wholly inadequate; and it was all the more inadequate in the face of evidence which was relevant evidence, namely the document at page 181, which I have already carefully considered, to the effect that there was at least one relevant document which had not been disclosed. I cannot accept Ms Allen’ submission that the document is of tangential relevance. One can debate perhaps philosophically whether tangential relevance means not relevant or means just about relevant, but it is unnecessary as it were to explore that interesting question. In my judgment it is clear, looking at the document, that it was relevant to the issue in particular of risk assessment, and what had to be done (or not done, as the case may be) by the local authority in relation to known risks.

22. I fully understand the point that all of this sounds rather technical, and there may be something in the objection which came from HHJ Harris that a modicum of common sense  had to be applied. In my judgment all of that would be relevant to a submission or an application which was not in fact made by the defendant, namely that the defence should have relief from What the outcome of such an application would have been in the circumstances of this case is something which in my view is entirely speculative. It may well be before this judge that Ms Allen would have achieved the outcome she desired, but I cannot accept that such an application was made, nor can I accept that in some way HHJ Harris can be treated as having acceded to such an application because that is what common sense required. If there were to be an application for relief from sanction, that had to be carefully and properly advanced, and carefully addressed by a relevant submission dealing with the three heads of the test laid down in Denton and Mitchell.  None of that occurred.

23. Nor can I say in all conscience that the outcome of the application would inevitably have inured to the defendant’s benefit. One simply does not know.  If I had thought that the outcome was so obvious that the defendant had to win an application which was not in fact made, I might have come to a different conclusion, but for the avoidance of that doubt, that is not my view at all.

24. I am therefore driven to accept the claimant’s appeal on the first appeal. The case should not have proceeded to hearing before HHJ Melissa Clarke, and – regardless of the merits of the claimant’s second appeal – he is entitled to The defence should have remained struck out.”