Scottish & Newcastle Plc v Raguz

A claim should be struck out only where procedural failures justify that extreme sanction and prevent a fair trial. Defective disclosure that has been cured, or disclosure given in good faith and which is not illusory, does not justify striking out. Standard disclosure under Civil Procedure Rules 1998, rule 31.6, concerns specified categories of documents. It does not extend generally to documents merely providing a train of inquiry. The court should not impose a prospective unless order requiring compliance with an order already satisfied, or prescribing how a party must plead to amendments not yet allowed.

The claimant sought to recover sums paid under statutory notices from the defendant, following assignments of leasehold interests and the insolvency of a subsequent tenant. Earlier proceedings had produced limited summary judgment, while questions concerning later liabilities and the claimant’s conduct remained for trial.

The defendant applied to strike out the claim, alleging persistent disclosure failures, defective formal documents and withholding of relevant information. Alternatively, he sought unless orders requiring further disclosure and prescribing the claimant’s future reply to an amended defence. The central issues were whether the claimant had breached the disclosure order and whether its procedural conduct justified the ultimate sanction of strike-out.

1. Strike-out. The application to strike out the claim was dismissed. Earlier disclosure defects had been admitted and cured. The remaining complaints did not show conduct making a fair trial impossible or justify the extreme sanction of striking out.
2. Compliance with the disclosure order. Applying by analogy Reakredit Danmark A/S and Others v Your Montague Ltd and Others (unreported, 26 November 1998) and Reiss v Woolf [1952] 2 QB 557, the relevant question was whether disclosure had been given in good faith and was not illusory. The claimant’s disclosure satisfied that test.
3. Scope of standard disclosure. Under CPR 31.6, standard disclosure is confined to documents on which the party relies, documents adversely affecting its own case or another party’s case, documents supporting another party’s case, and documents required by a practice direction. It does not require general disclosure of wider relevant or train-of-inquiry documents. Until the defence is properly defined, a claimant cannot be required to anticipate ingenious arguments.
4. Unless orders. No unless order requiring full compliance with the disclosure order was appropriate because that order had already been complied with. The claimant remained subject to its continuing duty under CPR 31.11, and the defendant could seek specific disclosure under CPR 31.12. A prospective order governing the claimant’s reply to amendments not yet permitted was also inappropriate.

Earlier summary judgment was given by His Honour Judge Norris QC. The Court of Appeal did not disturb the relevant conclusions, and permission to appeal to the House of Lords was refused. The present court dismissed the defendant’s strike-out application and refused the proposed unless orders.