Tonstate Group Ltd & Ors v Wojakovski & Ors

Where a party repeatedly fails to comply with an order requiring factual schedules, and the default is not reasonably justified, the court may extend time on an unless basis. Relevant considerations include the quality and duration of the default, the party’s previous opportunities and assistance, the adequacy of the explanation, and the risk of prejudice to the trial date. A litigant in person is not automatically entitled to indulgence, particularly where the task requires factual information within the party’s own knowledge. The court may provide a final period for compliance while making clear that the defence will be struck out if the order is not obeyed. Any lesser sanction may be sought through an application for relief from sanctions.

The claimants applied for an unless order in proceedings concerning alleged misappropriated payments and related accounting obligations. At an earlier case management conference, the defendant was ordered to complete schedules identifying payments admitted or denied and to particularise allegations that payments were authorised or known about.

The defendant failed to comply within the original period and was granted substantial further time. He subsequently acted in person for part of the period, complained about access to documents and the claimants’ offices, and referred to attempted mediation. His response remained inadequate, and no proper response had been provided to one of the schedules.

The court was required to determine the length of any further extension and whether compliance should be secured by an unless order. It also considered the appropriate basis of assessment and interim payment of the claimants’ costs.

1. Unless order. The court granted a further four-week extension for compliance with both schedules, but ordered that it operate on an unless basis. Failure to comply would result in the defence being struck out.
2. The defendant’s status as a litigant in person carried little weight. He had been represented when the order was made and for almost all of the original compliance period. The task principally involved marshalling factual information, rather than specialist legal work, and the relevant information was substantially within his own knowledge or control.
3. The complaints about inadequate documents and lack of access to the claimants’ offices did not reasonably justify non-compliance. The defendant already possessed relevant accounting records and completion files. The USB stick supplied by the claimants was not provided pursuant to a disclosure obligation, and physical copies remained available if properly arranged and paid for.
4. Attempted mediation did not justify abandoning compliance with a court order. In any event, the mediation discussions occupied only a short period and left most of the delay unexplained. The defendant had not complied to the best of his ability: the email response was woefully inadequate and there had been no attempt to complete the personal payment schedule.
5. In fixing the further period, the court balanced the need for proper compliance against the risk that delay would prejudice the trial date. The repeated failure without reasonable justification made an unless order appropriate to focus the defendant’s attention on compliance.
6. The court considered that the defence as a whole could be struck out for non-compliance with an order relating to part of the claim. It remained open to the defendant to seek relief from sanctions and to argue that a lesser sanction should be imposed.
7. Costs. The application was a case of woeful and prolonged non-compliance, so indemnity costs were appropriate. The costs schedule was insufficiently detailed for summary assessment, particularly given the change of solicitors and counsel. Nevertheless, the court ordered an interim payment of £50,000, representing approximately half of the non-VAT sum claimed and a sum expected to be awarded on detailed assessment.

First-instance decision. The judgment does not state any prior appellate decision.