Marine Rescue Technologies Ltd & Anor v Burchill & Ors

An unless order requiring standard disclosure must be complied with in accordance with the procedural requirements governing disclosure, including service of a proper list and disclosure statement. Earlier disclosure does not satisfy a later unless order where the order requires the exercise to be repeated. Relief from an automatic sanction depends on the factors in CPR 3.9, but the court may give decisive weight to a failure to conduct plainly relevant searches and to explain why those searches would be unreasonable or disproportionate.

The claimants sought reinstatement of proceedings that had been automatically struck out after failure to comply with an unless order requiring standard disclosure. The order required compliance within 14 days and arose from earlier concerns about the adequacy and geographical scope of the claimants’ searches.

The claimants relied on earlier disclosure and correspondence enclosing existing lists, but supplied a fresh disclosure statement only after the deadline. They had not searched the Marshalls’ home, Mr Marshall’s laptop, backup tapes or email servers, and gave no adequate explanation for that omission. The central issue was whether the claim had been struck out automatically and, if so, whether relief from sanctions should be granted.

1. Automatic strike-out. The unless order required disclosure in accordance with the procedure in Civil Procedure Rules 1998, Part 31. A compliant exercise required a list on the appropriate form together with a disclosure statement. Earlier disclosure, or service of lists without the required statement, did not comply with the order. The claim was therefore automatically struck out on 5 March 2007.
2. Relief from sanctions. The court considered the factors in CPR 3.9. The application was prompt and the failure was not a deliberate flouting of the order. However, it was a substantive failure, not merely a formal defect. Responsibility resting principally with the solicitors did not remove the consequences for the clients.
3. The interests of justice required account to be taken of delay, the effect on the overall timetable, and the burden imposed on the defendants. The claimants’ conduct before the unless order and the further delay caused by the application were relevant. The absence of a fixed trial date did not make the delay immaterial.
4. The decisive considerations were the complete failure to search the Marshalls’ home, Mr Marshall’s laptop, backup tapes and email servers, together with the absence of evidence explaining why those searches would be unreasonable or disproportionate. A reasonable search did not require every document to be read, but it required relevant files or categories to be identified and the reason for not searching them to be stated.
5. Relief was refused. The claim remained struck out. Costs were left to be dealt with separately if not agreed.