Carlco Ltd v Chief Constable of Dyfed-Powys

Permission to appeal from a strike-out for non-compliance with a peremptory disclosure order should be granted where there is an arguable issue about whether the disclosure was made by an authorised officer and whether the response amounted to a bona fide substantial attempt to comply. Those issues may materially affect the exercise of the strike-out discretion. Even where compliance is deficient, it may be arguable that the court should allow a further opportunity for final compliance or make an alternative order before striking out the claim.

The claimant company sought permission to appeal against an order made by His Honour Judge Graham Jones at Cardiff District Registry on 8 March 2002. The judge struck out its claim against the police and entered judgment for the defendant because of gross non-compliance with a peremptory disclosure order. The claim alleged misfeasance in public office, defamation and breach of confidence arising from the alleged disclosure of confidential information and damaging statements.

The proposed appeal challenged the findings that the disclosure statement was not made by a properly authorised officer and that the documents supplied were inadequate. The central issue was whether those matters made immediate strike-out an arguable error in the exercise of discretion.

Application allowed. Potter LJ granted permission to appeal. There was no order for costs.

1. Authorised officer. The claimant argued that its corporate structure permitted the company secretary to authorise Mr Ryan to make the disclosure statement. Potter LJ formed a preliminary view that the proposed mechanics were probably inadequate, but held that the point was arguable. The finding had played a substantial part in the judge’s decision and, if erroneous, affected the exercise of the strike-out discretion.
2. Substantial compliance. The statement was deficient, particularly because it did not identify documents which might previously have existed but were no longer in the claimants’ possession or power, or explain what had happened to them. Nevertheless, it arguably constituted a bona fide and substantial attempt to address the disclosure order. The combination of that point with the question of authorisation made it arguable that the judge should have allowed a further opportunity for final compliance or made an alternative order rather than striking out the claim immediately.
3. Scope of the application. The claim was plainly exaggerated and speculative, and the judge had legitimate concerns about disclosure and the company’s ownership and officers. However, no application had been made to strike out the claim on the basis that it had no reasonable prospect of success. The permission application therefore turned on the arguable procedural errors, not on a final determination of the underlying claims.
4. Representation. Potter LJ allowed Mr Francis to address the court for the purposes of dealing with the application, but expressed the view that his recent appointment as assistant company secretary was a device and did not approve his suitability to represent the company at the full appeal.

• Court of Appeal (Civil Division): On 12 September 2002, Potter LJ allowed the application for permission to appeal.
• Cardiff District Registry: On 8 March 2002, His Honour Judge Graham Jones struck out the claim and entered judgment for the defendant after finding gross non-compliance with a peremptory disclosure order. Permission to appeal was refused.