Griffith & Anor v Gourgey & Anor

An unless order requiring a full and complete response to each request for information must be complied with according to its terms. A response which is plainly incomplete or insufficient breaches the order. Where the order expressly excludes more lenient approaches, a party cannot rely on a merely genuine attempt, on answers which might reasonably be expanded, or on substantial compliance viewed globally. The court may consider whether a response was genuinely attempted when assessing completeness, but later evidence cannot ordinarily cure an inadequate response. Repeated, serious and evasive failures concerning matters central to the litigation justify striking out a defence. Relief against sanctions will generally require compliance with the order or a material change of circumstances or misleading of the earlier court.

The petitioners brought three unfair prejudice petitions under section 994 of the Companies Act 2006 concerning Bankside Hotels Ltd, Pedersen (Thameside) Ltd and G&G Properties Ltd. The respondents had been ordered to provide further information under CPR Part 18. A previous unless order and subsequent relief order required a full and complete response to each request, failing which the amended defence would stand struck out.

The petitioners challenged the respondents’ further response. The respondents sought relief against sanctions. The central issues were whether the response complied with the relief order and, if not, whether relief should be granted.

1. The respondents had failed to provide full and complete responses to each and every request. The relief order was clear and expressly required compliance in all respects. The court therefore did not apply the more flexible approach suggested in QPS Consultants Ltd v Kruger Tissue (Manufacturing) Ltd where the answers were plainly incomplete or insufficient and the order imposed stricter requirements (paras [52]–[56]).
2. The court was not concerned with the truth of the responses at this stage. Nor was logical coherence ordinarily relevant unless it bore on the fullness and completeness of the answers. Evidence served months later could not supplement material which should have been included in the response (paras [57]–[61]).
3. The failures were substantial and concerned matters at the heart of the petitions. Several responses were evasive, including failures to produce documents, identify intercompany balances and set-offs fully, identify services said to justify management charges, and particularise fees and services relating to sale proceeds (paras [68], [79], [91], [98]).
4. The amended defence therefore stood struck out under the relief order. A further application for relief could not succeed because there had been no material change of circumstances and no suggestion that the earlier judge had been misled. The history of repeated defaults and the importance of compliance with court orders supported refusal of relief under CPR Part 3.9 (paras [103]–[106]).
5. The failure concerning Request 22 was separately a serious timing failure. The documents remained outstanding at the hearing, without sufficient explanation, so relief would also have been refused in relation to that failure (para [107]).

The judgment describes earlier procedural orders, including a decision granting conditional relief against sanctions in [2014] EWHC 4440 (Ch). This judgment determined compliance with the subsequent relief order and refused further relief.