Sheeran & Ors v Chokri & Ors

An answer stating only that a party is not entitled to provide information is a non-answer. It cannot comply with an order requiring a complete and sufficient response to a Part 18 request.

A party wishing to challenge the propriety, scope or proportionality of a request must use the available procedure to object to it or apply to set aside or vary the resulting order. In deciding whether to extend time or grant relief from procedural consequences, the court applies the Denton stages together with CPR 3.9 and the overriding objective. Serious and significant non-compliance without good reason does not determine the outcome where the request itself appears to seek premature, fragmented evidence or disclosure and the opposing party identifies no real prejudice.

The claim concerned alleged copyright infringement relating to the composition “Shape of You”. The Defendants served a Part 18 request seeking information from the Claimants. The Claimants did not object within the period specified and did not apply to set aside or vary an order requiring responses by 15 May 2020.

The Claimants later served answers to requests 1–18 stating only “not entitled”. The Defendants applied for an order requiring complete and sufficient responses, with an unless sanction. At the hearing, the central issues were whether that answer complied with the order and whether the Claimants should receive an extension of time to challenge the order and respond.

1. Non-compliance. The starting point was the order dated 27 April 2020, not a renewed consideration of whether the Part 18 request should originally have been made. The order provided a mechanism for applying to set it aside or vary it. The Claimants had not used that mechanism.
2. Meaning of a sufficient response. The authorities established that a response must be complete and sufficient having regard to the order and the request. The answer “not entitled” did not engage with any request and was plainly inadequate. It was a breach of the order, rather than an attempted response requiring expansion or elucidation. The approach in Fearis v Davies [1989] 1 FSR 555 remained good law. The approach under the CPR was confirmed in QPS Consultants Ltd v Kruger Tissue (Manufacturing) Ltd [1999] C.P.L.R. 710 and The Owners of the Motor Vessel 'Gravity Highway' v The Owners of the Motor Vessel 'Maritime Maisie' [2020] EWHC 1697 (Comm).
3. Part 18 and proportionality. A party must object to a request within the relevant period if it considers that the request is improper, unnecessary or disproportionate. The CPR provides opportunities to challenge an order made without notice. Although compliance with an order is important, the court must still consider whether the request appears to seek early, fragmented or out-of-sequence witness evidence or disclosure. Such requests require particular caution under CPR 18 and the overriding objective.
4. Relief and extension of time. The breach was serious and significant. Covid-19 and illness did not provide a good reason for the prolonged failure to apply to set aside or vary the order. Applying the three-stage Denton test, CPR 3.9 and the overriding objective, however, the court took account of the apparent nature and limited utility of the request, the agreed disclosure and witness timetable, and the absence of identified prejudice to the Defendants.
5. The Claimants were granted an extension of time until seven days after hand-down to apply to set aside the 27 April order. Time for compliance with the request was extended until the date for disclosure. No unless order was made.

The judgment records that an earlier application to strike out parts of the Claimants’ reply to the defence to counterclaim was partially successful in June 2019. The Claimants’ appeal was dismissed by Nugee J in December 2019, and permission for a second appeal was refused in February 2020.