First Property Growth Partnership Llp v Banco Di Roma Spa

Unless Orders are exceptional and should not be imposed routinely for every failure to comply with an earlier order. They are generally appropriate only where there is a history of non-compliance or substantial and significant default. Interlocutory applications should ordinarily be served on all other parties, including applications made on paper. The applicant remains responsible for notification. An Unless Order should not be sought where there is a reasonable prospect of compliance, and the order sought must be proportionate and appropriate. A party whose deficient disclosure caused the application may still avoid an adverse costs order where the applicant’s conduct was disproportionate and inappropriate.

The claimant brought a terminal dilapidations claim exceeding £500,000. The defendant sought specific disclosure of documents relating to remedial works and applied without notice for an Unless Order requiring disclosure by a short deadline, failing which the claim would be struck out.

The court required notification of the application and heard the parties’ positions. By the hearing, the claimant had provided substantial further disclosure and agreed to provide a properly verified supplemental list and witness statement. The central issues were whether the substantive disclosure order should be made, whether the defendant’s procedure and relief sought were appropriate, and how the application’s costs should be allocated.

1. Substantive order. An order was made requiring the claimant to provide the agreed witness statement and a properly verified supplemental list of documents.
2. Unless Orders. Such orders are the most draconian sanction available in interlocutory proceedings. They are ordinarily appropriate only where there has been a previous history of non-compliance with court orders or substantial and significant default concerning a particular order or specific aspect of the litigation. They should not be imposed routinely.
3. Notice of applications. Save in exceptional circumstances, an interlocutory application should be served on the other parties so that they can address its substance. The applicant is responsible for ensuring that the application and supporting documents have been provided and for notifying the court. An application for an Unless Order made without notice will generally be misconceived. Claimed urgency does not justify avoiding notice, since the court will ordinarily require notification before making an order.
4. Prospect of compliance and proportionality. An application for an order based on default should be made only where there is no reasonable prospect of compliance. The relief sought must be proportionate and appropriate. Here, the claimant was addressing the deficiencies in its disclosure, so an Unless Order and the procedure adopted were disproportionate and inappropriate.
5. Costs. The claimant’s original disclosure was deficient, and the defendant’s application helped prompt substantial supplementary disclosure. Nevertheless, the defendant’s conduct in making the application without notice and imposing an unreasonable response period meant that it would not be fair or just to award the defendant its costs. No order as to costs was made, each party bearing its own costs.