Byers & Anor (Liquidators of Saad Investments Company Ltd) v Samba Financial Group

On an application to extend a disclosure deadline, the court should impose a timetable that is realistic, proportionate and consistent with a fair trial. Serious default and delay in applying for relief are relevant, particularly to costs and future case management, but do not automatically justify refusing a reasonable extension where proper disclosure remains in the interests of justice. An unless order should not ordinarily be imposed as the first extension where the evidence shows that the delay is not wholly inexcusable and there is sufficient time before trial. The court may instead impose a shorter deadline and warn that further serious non-compliance will attract more rigorous sanctions.

The defendant applied to extend the deadline for final disclosure from 27 September 2019 to 6 January 2020. It relied on the need to obtain conditional consent from SAMA, the Saudi regulator, before external consultants and solicitors could search its systems and before disclosure could be provided. The claimants alleged deliberate obstruction, sought completion of disclosure by 15 November 2019 and asked for an unless order debarring the defendant from defending liability.

The court considered the disputed explanation, the parties’ duties in relation to compliance with court orders, the prejudice caused by delay, the practical disclosure timetable and whether immediate sanctions were justified.

1. The application was allowed in part. The disclosure deadline was extended to 13 December 2019. No rolling disclosure order was made.

2. The court could not determine on the interim evidence that the defendant had deliberately obstructed disclosure or that Mr Al-Missaind had fabricated his explanation. It nevertheless found that the defendant had not acted with sufficient urgency and should have returned to court earlier when compliance became doubtful.

3. The defendant’s failure to notify the court promptly was relevant to case management and potentially to costs. It was not, by itself, a sufficient reason to refuse a reasonable extension. Proper disclosure was in the interests of justice, and defaulting the defendant risked depriving the claimants of documents relevant to a fair trial.

4. The proposed date of 15 November was unrealistic. The court accepted that the first phase of searching could not finish before 13 November and that the remaining review and regulatory process required further time. It also found that the timetable contained some scope for acceleration, including by using more lawyers and managing SAMA’s approval process more efficiently.

5. An immediate unless order was refused. Although there had been serious default, the delay was not wholly inexcusable on the evidence then available, the defendant was acting reasonably towards completing disclosure, and the trial was not due until October 2020. If the extended deadline was missed, the claimants could apply urgently for an unless order.

6. The defendant was warned that any further application for an extension must be made promptly and supported by full evidence. If reliance was placed on SAMA, the relevant communications with SAMA would have to be disclosed.