Al-Subaihi & Anor v Al-Sanea

An unless order leading to strike-out should be made only where the sanction would be justified in all the circumstances. Its automatic operation makes it one of the court’s most powerful case-management measures, unsuitable for mere housekeeping. Serious past non-compliance does not compel the order where the disobedience is no longer continuing and special circumstances create a real risk of non-compliance for reasons outside the litigant’s control. The court must assess proportionality, including whether a lesser sanction or a later application would adequately protect the other party.

The defendant applied for an order that the second claimant’s claim be struck out unless he complied with disclosure obligations imposed by the Teare Order. The second claimant accepted that his earlier disclosure was seriously deficient but stated that he intended to complete it by 15 January 2021 through his family. He was detained in Saudi Arabia, had limited communication, and faced practical difficulties in locating, extracting and translating documents. The central issue was whether compliance should be required on terms making failure automatically fatal to the claim.

1. The application for an unless order was dismissed. The second claimant had seriously breached his disclosure obligations, and the breach had initially been unrepentant. Had those circumstances continued, an unless order would probably have been made.
2. The court applied the principle in Marcan Shipping (London) Ltd v Kefalas [2007] EWCA Civ 463: because an unless order operates automatically, the court must consider whether the eventual sanction is justified in all the circumstances. Strike-out is a particularly powerful remedy and should not be imposed for routine case-management purposes.
3. Global Torch Ltd v Apex Global Management Ltd and Others (No.2) [2014] UKSC 64 did not require a sanction in every case of breach. Its observations concerned the near inevitability of sanctions where disobedience persists, especially where it threatens a fair trial, subject to special circumstances.
4. The relevant circumstances had materially changed. The second claimant now accepted the deficiency and intended to comply. His detention, restricted ability to communicate, the location and language of the documents, technical access problems and Covid-related difficulties created a real possibility of non-compliance for reasons beyond his control. In that setting, the nuclear sanction of strike-out would be disproportionate and inappropriate.
5. The order was to require production by the agreed date and prompt notification of any anticipated difficulty. If production did not occur, a further unless application would be expected, ordinarily with a short period for compliance unless there was an extraordinarily good excuse.