Hulley Enterprises Limited & Ors The Russian Federation

An unless order is a final form of procedural control and should be made only as a last resort. The court must identify the purpose of the order and be satisfied that it is proportionate to that purpose.

Where a party has had ample time to comply with directions, provides only generalised explanations for default, and late evidence would threaten a fixed trial or prejudice the opposing party, an unless order may be necessary. This is especially so where expert evidence is involved and ordinary procedural controls would not adequately protect the trial timetable or the opposing party.

The claimants sought an order in enforcement proceedings concerning an arbitral award. The court had directed a preliminary trial addressing whether the Russian Federation was precluded by Dutch judgments from re-arguing its agreement in writing to submit the disputes to arbitration and, if so, whether its jurisdiction challenge should be dismissed.

The defendant had failed to file factual and Dutch law expert evidence by the directed date. It did not appear or have legal representation at the hearing, but made written submissions attributing the default to difficulties caused by sanctions, legal representation and access to expert evidence. The claimants sought an extension to 2 June 2023, coupled with a provision debarring evidence unless that deadline was met.

1. Application granted. The court ordered that the deadline for filing and serving the defendant’s factual and expert evidence be extended to 2 June 2023, with the defendant to be debarred from filing and serving that evidence if the deadline was not complied with.
2. An unless order is a last step in procedural control. Before making one, the court must identify the purpose for which it is required and assess whether the order is proportionate in that context.
3. The explanations advanced by the defendant were wholly generalised and inadequate. They did not identify the steps taken to obtain representation or the reasons why those steps had failed. The defendant had previously obtained representation in the Dutch proceedings, yet gave no satisfactory explanation for its inability to obtain Dutch expert assistance in the English proceedings.
4. The date of 2 June was proportionate. The trial was approaching, and the claimant’s Dutch law expert had limited availability thereafter. The difficulties created by that limited availability resulted from the defendant’s earlier failure to comply with the directions.
5. An unless order was necessary to maintain effective control of the litigation. Without it, the defendant might serve evidence shortly before trial, creating a risk of adjournment or unfairness. CPR 32.10 provided some control over late factual witness statements, but did not adequately address the principal concern regarding expert evidence.