A COURT ORDER IS A SERIOUS, NOT TRIVIAL, MATTER: A PARTY IN BREACH CANNOT ACT AS IF THE ORDER HAD NEVER BEEN MADE: “THAT SHIP HAS SAILED”.

One of the most imprudent things to do in litigation is to let a court order be made, not comply and then respond by arguing that the order should never have been made anyway.  We see an example of this in the judgment of His Honour Judge Hacon in  Richards & Anor v Laser Sailboats Ltd & Ors [2022] EWHC 1320 (IPEC).

“When a court makes an order, it is a serious, not a trivial matter. The party subject to the order has a choice. It may appeal. Where appropriate, it may apply to set aside or vary the order. If it does none of these things, it must comply with the order. Compliance is not optional. In particular, the party may not act as if the order had never been made and reopen argument directed to the grounds on which the order was sought and made.”

THE CASE

The claimants sought, and obtained, an order that the defendants provide certain information. The defendants did not apply to vary or set aside that order.  The claimants took the view that the defendants had failed to comply with the order and sought an order compelling an appropriate response.

THE JUDGMENT ON THIS ISSUE

The judge set out the history of the matter and the defendants’ response to the application.

1. 1. The claimants took the view that this response was not in compliance with my order of 4 April 2022. They have therefore applied for an order specifying in more detail the steps that the first and second defendant must now take in relation to identifying the dates of signature of the various written assignments in issue.

1. 1. The principal argument, advanced by Mr Benzie, was that the claimants’ application is correctly characterised as an application for early specific disclosure; this is not a case in which early disclosure is appropriate.

1. 1. In my view, that ship has sailed. Had the first and second defendants responded to the claimants’ application of 25 March 2022 in due time and argued that early disclosure was not appropriate in this case, I may have been receptive to that argument. They did not. The application was unopposed and the order of 4 April 2022 was made. If at that stage the first and second defendants had applied to set aside or vary the order of 4 April 2022, I may have been sympathetic to such an application. I need state no view. Alternatively, the first and second defendants might have said that, contrary to what one might expect, they were unable to state the dates on which the relevant documents were signed and that it should be sorted out by disclosure in due course. However, the first and second defendants made no such applications. The order stands.

1. 1. When a court makes an order, it is a serious, not a trivial matter. The party subject to the order has a choice. It may appeal. Where appropriate, it may apply to set aside or vary the order. If it does none of these things, it must comply with the order. Compliance is not optional. In particular, the party may not act as if the order had never been made and reopen argument directed to the grounds on which the order was sought and made.

1. 1. The issues before me today are, first, whether the first and second defendants are in breach of my order of 4 April 2022. Secondly, if they are in breach, what order should be made today as a consequence of the breach?

1. 1. I should also make another matter clear. In his skeleton argument, Mr Benzie argued that these proceedings are not appropriate for this court. That may or may not be right, but no application has been made to transfer this case to the general Chancery List. Whether or not the trial should be heard in this court is irrelevant to today’s hearing.

1. 1. It seems to me that the first and second defendants are in breach of the order of 4 April 2022. That order required them within seven days to state the date on which each of the relevant documents were signed. The first and second defendants have not stated the dates and have not said that it is impossible to identify the dates. Instead, they take the position that disclosure should take place in the usual way and that rather than take the trouble to attempt to deduce the dates now, that task should happen later.

1. The agreements concerned must all have been signed by individuals empowered to bind either the first or second defendant or its sister company LPE. It is not easy to see why identifying those individuals should be difficult or why those individuals are unable to do their best to state the dates on which they signed the documents. At the least they must be able to state what they have done in order to find out the relevant dates and set that out in evidence. They must also be able to state what they have done to find documents which may well contain underlying metadata which would reveal the relevant dates. I can see why the claimants are suspicious.

The judge said he would make an order pursuant to the terms of the claimants’ application, and heard counsel on the appropriate terms of the order.