For the second time in recent months, the High Court has held that parties to litigation were not in breach of an “unless order” to give disclosure as a result of defects in the lists of documents provided. Since the order was to give “standard disclosure by list” and the defendants had provided lists by the due date, there was prima facie compliance with the order unless the claimant could show that the lists were not made in good faith or could not fairly be described as “a list”: Dinsdale Moorland Services Limited v Evans and others  EWHC 2 (Ch).
Similarly, in the Re Atrium decision last September, the court found that omissions from the claimant’s list of documents did not mean it was in breach of an unless order to conduct a reasonable search (see post).
As these decisions show, in determining whether a disclosure order has been breached, the court will look carefully at what the order required the party to do. Where there is prima facie compliance, the fact that the exercise has been conducted imperfectly will not necessarily lead to a finding of breach. Where however there is a lack of good faith, or where it is obvious from patent deficiencies that there was “apparent but not real compliance”, the court is likely to take a dim view. James Farrell and Maura McIntosh comment further below.
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The claimant brought a claim alleging, in broad summary, breaches of the defendants’ employment contracts and fiduciary obligations. The parties were required to give standard disclosure. The claimant complained about the defendants’ provision of a composite list of documents, as opposed to separate lists for each defendant, and about the content of the list. The district judge made an unless order which required the defendants to ”give standard disclosure of documents by list in accordance with CPR 31″ by a specified date, failing which they would be debarred from defending the claims. There was no appeal against that order.
The defendants served further lists by the required date. Some two months later the claimant alleged that the defendants had failed to disclose certain documents that were fundamental to the case; accordingly they were in breach of the unless order and had been struck out automatically as a result of the breach. The defendants denied that they were in breach of the unless order, or alternatively sought relief from sanction.
The court (His Honour Jedge Behrens sitting as a Judge of the High Court in Leeds) held that the defendants were not in breach of the unless order.
The judge followed the approach in Realkredit Danmark v York Montagu  WL 104421 (which was also referred to in Re Atrium). In Realkredit the Court of Appeal allowed an appeal against the dismissal of a claim for failure to comply with an unless order for discovery. The Court of Appeal drew an analogy with previous case law relating to service of Further and Better Particulars and said the test was whether the plaintiffs’ list had been made in good faith and could fairly be described as a list; it must not be illusory. A court could infer lack of good faith where it was obvious from patent deficiencies that the list had been prepared in “apparent but not real compliance” with the relevant obligation. But the fact that a subsequent application for specific disclosure might have elicited further documents was not sufficient to establish a breach.
In the present case the obligation was to give “standard disclosure by list”. Lists had been provided by the due date. There were some defects in the lists, but the fact that an application for specific disclosure might elicit further documents did not mean it was not a list. In the judge’s view, the deficiencies complained of by the claimant did not begin to show that the lists were not made in good faith or were illusory.
It was also relevant that the claimant made no suggestion that the defendants were in breach of the unless order for two months after the lists had been provided, and did not give detailed particulars of alleged breaches for another two months after that. The judge said he would have expected any application for a declaration that the defence had been struck out to have been brought promptly.
The judge said it “must be doubtful” whether it had been appropriate for the district judge to make the unless order in circumstances where there was no repeated or deliberate disobedience to the court’s initial disclosure order. It seems there had been no written application for an unless order prior to the hearing and the district judge had not been referred to any authorities on the making of unless orders (which emphasise the need for the court to consider carefully whether the sanction imposed for non-compliance is appropriate in all the circumstances).
However, there was no appeal against the district judge’s order and the defendants did not suggest that the court should go behind it. Such a suggestion would have been unlikely to find favour in light of the Court of Appeal decision in Mitchell which states that an application for relief from sanctions presupposes that the order was properly made in the first place; if a party wishes to contend otherwise the appropriate course is an appeal or application to vary or set aside the order (see post).
The judge also commented that, if he had found that the list was illusory or not made in good faith, it was most unlikely that he would have been able to grant relief from sanctions in light of the clear message sent out by the Court of Appeal in Mitchell and Durrant (see post) requiring a robustness of approach in the post Jackson era.