This decision by Hamblen J and reported at  EWHC 275 was dealt with briefly last week. Here we take a detailed look at the case which involves several issues, including:
- Time for compliance with an order.
- The meaning of “trivial”
- Whether the previous conduct of the action by the defaulting party is relevant to the issue of a “trivial” breach.
- The test for “adequate disclosure.
RELEVANT PROCEDURAL HISTORY
The case proceeds in the Commercial Court. The defendants failed to give disclosure in accordance with the original directions and made an application for an extension of time. The court granted the extension on terms.
“Unless standard disclosure is provided on or by 17th January 2013 the Defendants’ defence and counterclaim shall be struck out…”
PROBLEMS WITH THE UNLESS ORDER
- At the relief from sanctions hearing the judge noted that the Unless Order did not specify a time of day by which the order was to be complied with. This was contrary to CPR 2.9 (1) (b) and PD 408 8.1 which provides that orders imposing a time limit for doing an act must include the time of day by which the act must be done.
- However he also noted that the Commercial Court Guide (at D19.2) states that absent specific provision in an order the latest time for compliance is 4.30pm on the day in question. He therefore found that the Unless Order in the current case should be understood as requiring compliance by 4.30pm on 17th January 2014.
THE DEFENDANT’S EXPLANATION FOR THE BREACH
The Defendants’ solicitors argued that they were working on the basis that the deadline was 5.00pm rather than 4.30pm.
- They had been working up to the deadline because of further documents provided by the Defendants that day. This meant the list was not ready until 4.40pm.
- The Defendants’ solicitors offered exchange of lists by email at 4:45 pm on 17 January 2014. At 4:54 pm the Claimant’s solicitors wrote, “There is an argument that this is out of time. We are considering and will revert soonest.”
- Nothing having been heard, at 5:16 pm (46 minutes after 4:30 pm), the Defendants’ solicitors provided standard disclosure by list in any event and asked the Claimant to do likewise. At 5:29 pm the Claimant’s solicitors wrote “We will revert on Monday. We are waiting to speak to Counsel.” No list of documents was provided by the Claimant by 4:30 pm on 17 January 2014 or at all.
THE RELEVANT PRINCIPLES
Mr Justice Hamblin first considered the principles which should be applied to the Defendants’ application.
13. CPR 3.9(1) provides that:
“On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need –
(a) for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, practice directions and orders.”
14. In a case in which I gave judgment last week, Newland Shipping & Forwarding Ltd v Toba Trading FZC  EWHC 210 (Comm), I sought to summarise the approach to be adopted in the light of the Mitchell case as follows:
“39. The leading authority is the Mitchell case. This requires a “robust” approach to be taken. As explained at , “the need to comply with rules, practice directions and court orders is essential if litigation is to be conducted in an efficient manner. If departures are tolerated, then the relaxed approach to civil litigation which the Jackson reforms were intended to change will continue”.
- 40. Under CPR 3.9 the “paramount” considerations are now “the need (i) for litigation to be conducted efficiently and at proportionate cost and (ii) to enforce compliance with rules, practice directions and court orders” .
41. Whilst “regard should be had to all the circumstances of the case…the other circumstances should be given less weight” than the two “paramount” considerations .
42. The “starting point” is that “the sanction has been properly imposed and complies with the overriding objective” . “An application for relief from a sanction presupposes that the sanction has in principle been properly imposed. If a party wishes to contend that it was not appropriate to make the order, that should be by way of appeal or, exceptionally, by asking the court which imposed the order to vary or revoke it under CPR 3.1(7)” .
- 43. In considering whether relief should be granted, “it will usually be appropriate to start by considering the nature of the non-compliance with the relevant rule, practice direction or court order. If this can properly be regarded as trivial, the court will usually grant relief provided that an application is made promptly.” .
- 44. “If the non-compliance cannot be characterised as trivial, then the burden is on the defaulting party to persuade the court to grant relief. The court will want to consider why the default occurred. If there is a good reason for it, the court will be likely to decide that relief should be granted.” . “Good reasons are likely to arise from circumstances outside the control of the party in default” .
- 45. In summary, the importance of the “paramount” considerations means that as a general rule relief will not be granted unless (i) the non-compliance was trivial or (ii) there was good reason for the default. Although all the circumstances of the case are relevant, they are of less weight than the “paramount” considerations. Compelling circumstances are therefore likely to be required if relief is to be granted for a non-trivial default for which there is no good reason”.
15. I would add that, conversely, if the applicant can show that the non-compliance is trivial and/or that there was good reason for the default, relief will “usually” be granted. In such a case compelling circumstances are therefore generally likely to be required if relief is to be refused.
WAS THE DEFENDANTS’ BREACH “TRIVIAL” IN THE LIGHT OF EARLIER
The claimant argued that the defendants’ non- compliance could not be characterised as trivial in the light of the history of earlier defaults by the defendants. However this argument was not accepted.
“16. The Defendants’ disclosure was 46 minutes late although it could have been made only around 15 minutes late if the Claimant had agreed to exchange. It is a delay measured in minutes not hours. It can be said that the Defendants “narrowly missed the deadline” – a circumstance which the Court of Appeal in Mitchell expressly contemplated as being de minimis and usually deserving of relief from sanctions at :
“…the court will usually grant relief if there has been no more than an insignificant failure to comply with an order: for example…where the party has narrowly missed the deadline imposed, but has otherwise complied with the order”
17. That the non-compliance is also trivial is also borne out by its effect. It has caused no prejudice to the Claimant, and none is suggested.
18. The Claimant submits that the non-compliance cannot be characterised as trivial in the light of the history of earlier defaults by the Defendants. However, what matters is whether the non-compliance which resulted in the sanction is trivial and in my judgment that involves a consideration of the default in question, not other defaults at other times. The history of default may be a relevant general circumstance to take into account but it does not affect the characterisation of the relevant non-compliance or metamorphose a trivial default into a serious default.”
HAD THE DEFENDANT PROVIDED ADEQUATE DISCLOSURE?
The claimant also submitted that the disclosure provided by the defendant was seriously deficient.
This was denied by the defendants’ who argued that the disclosure given by the defendants was proper and in real compliance with the requirements of the Order. Even though eight further documents were disclosed on the 23rd January 201 it did not detract from the real compliance made on the 17th January 2014.
The judge was referred to Dinsdale Moorland Services Ltd v Evans  EWHC 2 (Ch) in which HHJ Behrens outlined the authorities relating to adequate disclosure including Realkredit Danmark v York Montagu  WL 104421. He concluded that
“22. The Court of Appeal decision in the Realkredit case indicates that an order to provide disclosure is complied with for the purposes of an unless order as long as a list is provided and that list is not “illusory”. It will be “illusory” if the court can infer “lack of good faith where it is obvious from patent deficiencies in the list that it had been prepared in apparent but not real compliance with the obligation to give discovery”.
23. It is not contended that the list was “illusory” in this sense, nor do I find it so to be.
24. The Claimant stresses that at the time that the list was provided it was stated that there may be some further documents to be disclosed and that a supplementary list was served on 23 January 2014. That contained eight further emails. By contrast, the earlier list had run to 42 pages. Although the Claimant submits that those further emails are significant, even if that be the case it does not mean that the earlier list did not involve “real” compliance. Further, the Claimant admits that it has not yet examined the disclosure provided.”
DID THE DEFENDANTS HAVE A GOOD REASON FOR THE BREACH?
The Judge then went on to consider whether the Defendants had a good reason for the breach.
“26. The default would appear to have occurred for two reasons. The mistake made by the Defendants’ solicitors in thinking that the time for service was 5:00 pm not 4:30 pm and the late provision of documents by the Defendants which meant that the list was not ready by 4:40 pm. Whilst the late provision of documents made the Defendants’ solicitors task more difficult, I find that a list in “real” compliance would have been offered for exchange by 4:30 pm had it been appreciated that that was the deadline. It was this misunderstanding which was the operative and the main reason for the default. A further ½ hour from 4:45 pm was then spent seeing if the Claimant was ready to exchange, although there was no requirement for exchange and the list could simply be served, as it ultimately was.
27. The Defendants’ solicitors’ error is at least understandable given the silence of the Order on this point. Further, from the exchanges at the time referring to the need to check the position with counsel, it appears that the Claimant’s solicitors were also not clear about the deadline. Moreover, they did not serve the Claimant’s list by 4:30 pm either.
28. The Claimant was therefore itself in breach and appears to have taken the view that it was entitled to wait and see what happened.
29. It cannot be said that the delay was due to circumstances outside the control of the party in default. It was due to a mistake rather than extraneous circumstances. In accordance with the guidance offered in the Mitchell case I accept that no good reason for the default has been made out, although there is an understandable explanation for it.”
The claimant also sought to rely on the circumstances set out in the previous version of CPR 3.9 (1). They argued that those factors pointed against the grant of relief even if the non-compliance was trivial.
31. As I stated in the Newland case at :
“87. Given the change in the wording of the Rule I doubt that it is generally appropriate to go through the exercise of considering the previous list of potentially relevant circumstances. No doubt if there is a particular identified circumstance that tells in favour of or against relief then it may be relied upon, but the most relevant circumstances are likely to be the two identified in Mitchell, namely the nature of the non-compliance and the reason for it.”
32. In so far as it is appropriate to consider the previous list of circumstances, my findings under each sub-paragraph of the previous rule are as follows:
(a) The interests of the administration of justice are served by insisting on compliance with court orders, as Mitchell makes clear. However, this is a general point which can be made in all cases. There is no specific further consequence for the administration of justice which arises in this case, as might be so, for example, if the trial or other hearing dates were affected.
(b) The application was made promptly.
(c) The failure to comply was not intentional.
(d) There is an understandable explanation for the failure, although it is not a good reason in the light of the guidance provided in the Mitchell case.
(e) There has been prior non-compliance.
(f) The failure to comply was caused by the Defendants’ solicitors’ mistake.
(g) The trial date can still be met if relief is granted.
(h) The failure to comply has not caused any prejudice to either party.
(i) The granting of relief would not cause prejudice to the Claimant. It would enable the Defendants to defend the substantial claims made on their merits.
33. Most of the listed circumstances therefore favour the grant of relief.
34. The main point made by the Claimant related to prior non-compliance. It submits that it has been apparent throughout this litigation that Mr Su (and hence the companies that he controls) only complies with court orders when he has no other choice; and even then he is cavalier with the truth. It contends that on at least one occasion he has deliberately flouted a freezing injunction against one of his companies.
35. It submits that the Defendants have filed inaccurate affidavits, ignored disclosure obligations, dissipated assets in the teeth of a freezing injunction and failed to pay costs orders.
36. Whilst the Defendants accept that there has been non-compliance in the past they dispute the detail of a number of the matters sought to be relied upon by the Claimant. They point out that nearly all the matters complained of related to the freezing order relief obtained by the Claimant rather than the substantive proceedings. In that connection they point out that the allegations now relied upon are something which the Claimant chose not to take further having abandoned its application for committal after the service of Mr Su’s seventh affidavit. In relation to the alleged breach of the freezing order, this refers to the sale of me “Ducky Spirit”. In his affidavit on 3 April 2013 Mr Su apologised for the omission, volunteered the information about the vessel and explained the basis for the sale which he did not consider to be a breach.
37. In relation to the substantive proceedings the only non-compliance other than that relating to disclosure is late service of an amended defence and counterclaim. The Defendants accept that there is an outstanding costs order of £10,000 relating to the freezing order.
38. It is not necessary to go through the detailed procedural history of the case. I accept that there has been prior non-compliance and that this is a relevant circumstance. However, to a significant extent it has already been taken into account in the imposition of an “unless” order with the severe sanction of striking out the defence and counterclaim.
39. Even if I accept all the complaints made by the Claimant about prior non-compliance I would not regard them as comprising a sufficiently compelling circumstance for relief to be refused notwithstanding the trivial nature of the default in issue.
40. Further, there are a number of other circumstances which favour relief as set out in paragraph 31 above. Of particular importance is the fact that the non-compliance has had no effect on the Claimant or other court users. Further, the Claimant was itself in breach of the Order and, had it provided a list or sought to exchange lists prior to the deadline it is likely that the Defendants would have done likewise. Instead it chose to wait and see. Moreover, it appears that it too was uncertain about the precise deadline for compliance.
41. In my judgment the non-compliance in this case was trivial. A deadline was just missed for reasons which were explicable, if not excusable. It is the type of case in which relief will “usually” be granted in accordance with the guidance provided in the Mitchell case. Having regard to all the circumstances and in the exercise of my discretion I am satisfied that this is a case in which relief should be granted.”
- Be wary of being complacent where the time for compliance is not given on an order. The time may be implied in the rules. Check the relevant Court Guides.
- Avoid running up to or near the limit in any event.
- If another party does not comply with a court order, make sure you do. A court will have little sympathy for a party who fail to comply with a court order, even though they were in a position to do so. For an example of recommended practice previous post Serving Witness Statements Late: An extremely dangerous practice.
- Arguments based on the old CPR 3.9 checklist are unlikely to be successful. The considerations in the new CPR 3.9 are of paramount importance.