Devoy-Williams & Anor v Cartwright & Anor

An appellate court should interfere with findings of fact only where a critical finding is unsupported by the evidence or plainly wrong. Case-management decisions, including relief from sanctions and striking out, attract a generous ambit of discretion.

An Unless Order takes effect without a further order where there is material non-compliance. Materiality concerns the extent to which the order was breached, particularly whether documents clearly required for its purpose were withheld. The Denton three-stage test applies to relief from sanctions. A Part 36 offer does not override the consequences of an Unless Order or operate as a trump card.

The claimants appealed from an order of the Central London County Court which set aside an order restoring their negligence claim, dismissed their application for relief from sanctions, and allowed the consequences of an Unless Order to take effect.

The Unless Order required documents concerning the quantum and settlement of a counterclaim in separate proceedings. The judge found material breaches, including failure to disclose the relevant documents, and refused relief under the Denton test. The appeal challenged procedural fairness, factual findings, the construction and materiality of the order, the effect of a Part 36 offer, and the refusal of relief.

1. Permission and appellate standards. Permission to appeal was granted because the procedural-fairness arguments and challenge to the finding of intentional non-compliance had a real prospect of success. The appeal court nevertheless emphasised that findings based on witness credibility will rarely be disturbed and may be reversed only where the judge was plainly wrong. Case-management decisions must be respected unless irrelevant matters were considered, relevant matters ignored, the wrong principles applied, or the decision was one no reasonable court could reach.
2. Procedural fairness and intentional non-compliance. There was no material procedural irregularity. The allegation that the claimants had intentionally failed to comply and tampered with the document bundle had been sufficiently identified before the hearing. The first-instance judge was entitled to control cross-examination and oral evidence. She was also entitled to find an intentional breach on the evidence, while her conclusion that the breach was material would have stood even without that finding.
3. Construction and materiality of the Unless Order. Paragraph 3.3(a) required documents evidencing the quantum of the counterclaim, not merely documents generated or produced during settlement discussions. Paragraph 3.3(b) concerned the settlement documents. The order was sufficiently clear. The sanction under an Unless Order takes effect without a further order upon material non-compliance. Materiality is assessed principally by reference to the extent of non-compliance and the purpose of the order, rather than simply by comparing financial amounts.
4. Relief from sanctions and Part 36. The claimants were required to apply promptly for relief once they knew that breach was alleged. The Denton test did not justify relief: the breaches were serious and significant, there was no good reason, and the circumstances as a whole weighed against relief. The Part 36 offer did not make the breaches immaterial and could not be used to obtain relief merely so that the offer could be accepted. The appeal was dismissed.

• High Court (Chancery Division): The court granted permission to appeal but dismissed the appeal against the order made by the Central London County Court on 24 January 2018.