Gravity Highway, Owners of the Motor Vessel v Maritime Maisie, Owners of the Motor Vesse

An unless order concerning further information is breached only where the response is plainly incomplete or insufficient in light of the order and the requests it required the party to answer. The court assesses completeness and sufficiency, not the truth of the response, unless incoherence affects that assessment.

Where non-compliance is established, the sanction takes effect subject to relief from sanctions. The proportionality of striking out must be assessed having regard to the extent and importance of the default, the reasons for it, the effect on a fair trial and the availability of less severe measures. Striking out an established claim for damages may be disproportionate where the alleged default affects only part of the claim and causes no material trial prejudice.

The claim arose from a collision between the motor vessels Gravity Highway and Maritime Maisie. Liability had been agreed, with the claimants bearing one-third and the defendants two-thirds of the responsibility. Quantum issues were referred to the Registrar.

The claimants were ordered to answer requests for further information about their repair-cost claim. An unless order provided that Item 1 of the claim would be struck out if the responses were not served by the extended deadline. The claimants served further information, and the defendants applied to strike out Item 1. The claimants appealed against the unless order and sought relief from sanctions. The central issues were whether there had been non-compliance, whether the sanction was proportionate, and whether relief should be granted.

1. Compliance. The further information served by the claimants was not plainly incomplete or insufficient. The order required responses to the defendants’ queries but prescribed no particular degree of detail. The claimants answered all the queries, provided a detailed total of the man-hours, identified the adjustments made by the adjusters, and explained that certain work was treated as shipbuilders’ work. The unless order was therefore not breached.
2. Effect of non-compliance. The court adopted the approach in QPS Consultants Ltd v Kruger Tissue (Manufacturing) Ltd [1999] BLR 366, as applied in the CPR context by Griffith v Gourgey [2014] EWHC 4440 (Ch) and [2015] EWHC 1080 (Ch). The court considers whether the information could reasonably be regarded as complete and sufficient. It does not ordinarily determine the truth of the answers.
3. Appeal. If compliance had not been established, the appeal would have been allowed. The sanction would have struck out the whole of Item 1 whenever the answers were plainly incomplete or insufficient, although the claimants had an established entitlement to recover two-thirds of their damages and no substantial prejudice to a fair trial had been shown. That was disproportionate and outside the Registrar’s discretion, applying the proportionality principles in Summers v Fairclough Homes [2012] UKSC 26 and Alpha Rocks v Alade [2015] 1 WLR 4534.
4. Relief from sanctions. Alternatively, relief would have been granted. The alleged breach would not have been significant or serious. The claimants had made a serious effort to comply, the missing material resulted substantially from limited cooperation and unavailable records, and the October hearing had not been jeopardised.
5. Further orders and disclosure. A further unless order was refused because the claimants had provided the best explanation available. Anonymised payroll records were ordered to be disclosed. The risk of prosecution under foreign law was negligible, and the records might shed light on the calculation of man-hour costs, applying the principles summarised in Bank Mellat v HMT [2019] EWCA Civ 449.

This was a first-instance decision determining three related applications: the defendants’ strike-out application, the claimants’ appeal against the Registrar’s unless order, and the claimants’ application for relief from sanctions. The court held that the unless order had not been breached. It stated that, if necessary, the appeal would have been allowed and relief from sanctions granted.