Wahid & Anor v Skanska UK Plc & Anor

An application challenging a confirmatory order should not be used to reopen an earlier automatic strike-out or the unless order which triggered it. A party disputing the validity of an unless order or consequential strike-out should appeal that order, or promptly apply to the original court to vary or revoke it. An order requiring standard disclosure by lists remains an order for standard disclosure, even where it particularises documents to be listed. The disclosure list must state what happened to documents no longer within the party’s control. Failure to provide an accurate medical mandate and to give the required information about an unavailable medical report constituted non-compliance.

The claimants appealed from the dismissal by His Honour Judge Gerald of their applications to set aside orders confirming that their personal injury claims had been automatically struck out, or alternatively to obtain relief from sanctions. The claims arose from a road traffic collision. An unless order required disclosure by lists, specified information about previous road traffic accidents and medical reports, and signed mandates for release of clinical records.

The claims were struck out automatically after the claimants failed to comply by the specified date. On appeal, Mr Shadkam withdrew his appeal. Mr Wahid argued that he had substantially complied, that his mandate was accurate, and that the order concerning the earlier medical report required specific rather than standard disclosure.

1. The appeal was dismissed. The application before His Honour Judge Gerald challenged only the later order confirming the automatic strike-out. It did not challenge the automatic strike-out itself or the unless order pursuant to which it occurred. No permission had been given to appeal the refusal of relief from sanctions.
2. The medical mandate requirement had not been complied with by the deadline. The information then available showed that the surgery named in the mandate had stated that Mr Wahid was not its patient. The later confirmation that he was a patient could not retrospectively establish compliance. Nor had the respondents misstated the position to the judge.
3. The order requiring the claimants’ disclosure lists to include medical reports was an order for standard disclosure, not specific disclosure. It particularised the contents of the lists required by the standard-disclosure order. Under CPR 31.10(4), the list had to identify documents no longer within the party’s control and explain what had happened to them. Mr Wahid’s list did not do so in relation to the report concerning his 2005 accident.
4. The argument that no search was required under CPR 31.12(2)(b) therefore failed. No application for specific disclosure had been made, and the relevant requirement arose from standard disclosure.
5. Following Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, a challenge to the unless order or automatic strike-out had to be made by appeal or, exceptionally, by an application under CPR 3.1(7) to vary or revoke the order. Finality, delay and the undesirability of allowing two attempts at the same issue required a principled approach. The application had also been made four months after the strike-out and challenged the wrong order.
6. The judge below had not erred, and his decision was not unjust because of a serious procedural irregularity under CPR 52.11(3)(b). The automatic strike-out therefore stood.

• High Court (Queen's Bench Division): appeal from the Central London County Court dismissed. The appeal against the dismissal of the applications to set aside the confirmatory strike-out orders failed. Mr Shadkam’s appeal was withdrawn.
• Central London County Court: His Honour Judge Gerald dismissed the applications to set aside the confirmatory orders and for relief from sanctions.