Kruger Tissue (Manufacturing) Ltd v QPS Consultants Ltd

On a renewed application for permission to appeal, permission should be granted where the proposed ground raises an arguable point with sufficient merit to warrant consideration by the full court.

In relation to an unless order requiring further particulars, the relevant question may be whether the party served a document in good faith which could fairly be described as particulars. It is not necessarily whether every individual demand for particulars was substantially answered.

Requirements concerning future loss of profit may raise issues more suitable for expert evidence. By contrast, an appellate court will not interfere with a case-management discretion concerning late amendments where the judge properly evaluates the burden imposed, trial preparation and the evidence available.

QPS Consultants Ltd applied for an order debarring Kruger Tissue (Manufacturing) Ltd from defending the claim and pursuing its counterclaim after alleged non-compliance with an unless order requiring further and better particulars. The Technology and Construction Court activated the sanction and struck out substantial parts of the defence and counterclaim.

Kruger Tissue sought permission to appeal, including grounds concerning the proper approach to compliance with the unless order, particulars of future loss of profit, documents not yet in existence or possession, and amendments alleging defects in an effluent treatment plant. The application also concerned a proposed amendment updating the period and figures of claimed losses.

The central issues were whether the proposed grounds were arguable and whether the judge's refusal of particular amendments involved an appealable error.

1. Permission to appeal. The renewed application raised an arguable issue concerning the scope of the judge's power or discretion to activate the unless order. The authorities cited included Reiss v Woolf [1952] 2 QB 557, Grand Metropolitan Nominee (No 2) Co Ltd v Evans [1992] 1 WLR 1191 and Realkredit Danmark v York Montague Ltd (unreported, Ref No FC2 98/7480/1). They supported an arguable distinction between failure to serve particulars and failure to satisfy every request for particulars.
2. The proposed ground concerning further particulars of future loss of profit was arguable because such matters might more appropriately be addressed by expert evidence. Permission was therefore granted in relation to that issue, and it was considered illogical to refuse permission on related grounds concerning the loss-of-profits claim and the proposed amendment to schedule 3.
3. The challenge to the refusal of amendments concerning alleged defects in the effluent plant failed. The judge had properly considered the competing arguments and the circumstances as they stood, including the burden on the claimant, the imminent trial, the absence of disclosed expert evidence supporting the counterclaim, and the risk that the claimant could not deal with the new allegations in time. His exercise of discretion was not shown to be assailable.
4. The judge's discretion might only be revisited by the full court if other grounds succeeded and the case thereby materially changed. That observation was provisional and gave no expectation that the point would be reopened. The application concerning the effluent-plant amendments was disallowed. Costs were awarded to the claimant, with an agreed minute of order to be lodged.

• Technology and Construction Court, Queen's Bench Division: His Honour Judge Gilliland QC activated an unless-order sanction and struck out substantial parts of the defence and counterclaim. He refused the proposed amendments concerning updated loss claims and alleged effluent-plant defects.
• Court of Appeal (Civil Division): The renewed application for permission to appeal was allowed on arguable grounds concerning compliance with the unless order and particulars and amendment of future loss claims, but disallowed in relation to the effluent-plant amendments.