Candy v Holyoake & Ors

Striking out a defence for disclosure failures is an exceptional sanction. The court must apply the overriding objective and impose a just and proportionate response, considering whether a fair trial remains possible and whether alternative sanctions are available. Serious and significant breaches do not automatically justify judgment without trial, particularly where deliberate suppression has not been established and the deficiencies have substantially been rectified. Costs orders and, where appropriate, contempt proceedings may provide suitable sanctions. A claim for misuse of private information or breach of confidence must identify the information for which protection is sought and explain why it is private or confidential. Information does not become protected merely because it was disclosed or recorded in a private setting.

The claimant brought claims for breach of confidence, misuse of private information and breach of the Data Protection Act 1998 concerning recordings made at the first and second defendants’ home. He applied to strike out the defences of the initial defendants and obtain judgment because of admitted disclosure failures. He also sought default judgment against two additional defendants and challenged the adequacy of the claimant’s response to a Part 18 request.

The central issues were whether the disclosure failures justified judgment without a trial, whether further particulars were required, and whether the additional defendants were in default.

1. Strike-out and sanctions. The application to strike out the initial defendants’ defences and enter judgment without trial was refused. Under CPR 3.4 and the overriding objective, the court had to select a just and proportionate sanction. Striking out was the ultimate sanction and was appropriate only in an extreme case. The court had to consider whether a fair trial remained possible and whether alternative sanctions were available.
2. The disclosure breaches were serious and significant. Applying the three-stage approach in Denton v TH White Ltd, the explanations were not good explanations because they involved serious oversights, but they were innocent explanations which could not fairly be rejected on the documents alone without cross-examination. Deliberate suppression was not established.
3. The case remained capable of fair and efficient trial. The issues were narrow, the disclosure deficiencies had substantially been rectified, and costs sanctions and possible contempt proceedings were available. The appropriate response included indemnity costs for the abortive disclosure exercise and specified applications. The claim was to proceed to trial without undue delay.
4. Part 18 request. The claimant’s response was struck out and a further response ordered. A claim concerning a recording must identify the information for which protection is claimed, describe its nature, and specify the circumstances said to make it private or confidential. It was insufficient to assert generally that the recording and everything captured by it were protected.
5. Privacy and confidentiality were not established merely because information was disclosed or recorded during a private occasion. The nature of the information was an essential part of a confidence claim and a relevant factor in assessing whether information was private.
6. No substantive view was formed on the merits of the application for default judgment against the additional defendants; that issue was left to be addressed, so far as necessary, on costs.

Not stated in the judgment.