AZT v The Home Office

A party’s repeated and serious failures to comply with disclosure obligations may justify indemnity costs where the conduct takes the case out of the norm. A debarring or conditional strike-out order is a more severe sanction. It should be made only after careful consideration of all the circumstances and where the sanction is appropriate and proportionate. The court should consider whether a fair trial remains possible and whether less severe measures, including costs orders, adequately address the default.

The claimant brought linked false-imprisonment claims concerning periods of detention. He alleged breaches of the Hardial Singh principles approved by the Supreme Court in Lumba v Home Secretary [2012] AC 245.

The claimant applied for further disclosure and related case-management orders. He also sought an order debarring the defendant from defending the claims if the agreed disclosure obligations were not met, together with indemnity costs. The issues were whether the defendant’s disclosure failures justified indemnity costs and whether the high threshold for a debarring order had been reached.

1. The defendant was ordered to pay the claimant’s costs of and occasioned by the application on the indemnity basis. The defendant had repeatedly failed to comply with standard disclosure processes and court orders. The failures caused substantial additional cost and delay, including movement of the trial window. That conduct took the case out of the norm for the purposes of the costs jurisdiction under CPR 44.2(4) and CPR 44.3.

2. The defendant should have appreciated from the inception of the claims that relevant material was likely to be found in emails. Its disclosure lists and disclosure statement were inadequate. The electronic documents questionnaire did not adequately explain the refusal to search email, and the witness statement supplied under an earlier order did not provide sufficient reassurance that disclosure obligations had been met.

3. An unless order preventing the defendant from further defending the claims would operate as a conditional strike-out order. Under Marcan Shipping Ltd v Kefalas [2007] EWCA Civ 463, such an order has potentially very serious consequences and requires careful consideration of all the circumstances. It is not appropriate merely for good housekeeping purposes.

4. Serious disclosure failures can justify a conditional or actual strike-out order, as illustrated by Workman v Forrester [2017] EWCA Civ 73 and Hayden v Charlton [2011] EWCA Civ 791. Conversely, lesser sanctions may be proportionate where the defaults have not made a fair trial impossible, as illustrated by Candy v Holyoake [2017] EWHC 373 (QB).

5. The high threshold for debarring had not yet been met. The defendant had begun to engage with agreeing search parameters and had committed to an achievable timetable for full disclosure. A fair trial remained possible, the trial fixture had not yet been lost, and there was no finding that the defendant had acted to manipulate the court process for its own advantage. The debarring application was therefore refused, while the indemnity costs order remained in place.

First-instance decision on an interlocutory application. No prior appellate decision is stated in the judgment.