Eaglesham v Ministry of Defence

Relief from the consequences of an Unless Order requires the default to have been cured, or compliance to be capable of being dispensed with without injustice. The court applies the Denton approach to an application made before the sanction technically takes effect where non-compliance is inevitable. A serious and substantial breach will ordinarily justify enforcement, particularly where the order followed earlier lengthy default and a clear warning. Pressure of work, limited staff resources and foreseeable document-processing difficulties are insufficient excuses. Unless Orders must be given practical effect where further indulgence would cause substantial delay and prejudice.

The claimant, a Royal Marine suffering from chronic fatigue syndrome following Q fever, brought a negligence claim concerning the Ministry of Defence’s alleged failure to prevent or treat the illness. The defendant had consented to extensive specific disclosure. After earlier delay, an Unless Order required full compliance by 4pm on 21 October 2016, failing which the defence would be struck out and judgment entered on liability.

The defendant applied shortly before the deadline for an extension of time and relief from sanctions. It remained substantially in default and sought several further months to complete disclosure. The central issue was whether the court should grant that further indulgence.

1. Application of the relief principles. Although the application was made before the sanction technically took effect, the reasoning in Denton v TH White Ltd [2014] 1 WLR 3926 applied. The distinction identified in Hallam Estates Ltd v Baker [2014] EWCA Civ 661 did not alter the appropriate approach.
2. Following Suez Fortune Investments Ltd v Talbot Underwriting Ltd [2016] EWHC 1085 (Comm), the underlying assumption was that relief could be granted only if the default had been cured or was about to be cured, or if compliance could be dispensed with without injustice.
3. The breach was serious, substantial and continuing. It followed more than a year of inadequate compliance with disclosure obligations and an earlier extension granted reluctantly. The defendant had received a tailor-made Unless Order and an express warning that further leeway was unlikely.
4. The defendant’s explanations were inadequate. Technical problems had caused only a minor part of the delay. The volume of documents, competing work, scarce subject-matter experts and the need for redaction were foreseeable and did not justify non-compliance. The defendant had also failed to conduct its searches sufficiently thoroughly or to provide a reliable timetable.
5. Under the third stage of Denton, and having regard to the overriding objective in CPR 1.2(d), (e) and (f), further indulgence would prejudice the claimant, consume court resources and delay the claim substantially. The application was refused. The defence was struck out and judgment was to be entered for the claimant on liability, with damages to be assessed.