Mornington 2000 LLP & Anor v The Secretary of State for Health and Social Care

Strike-out for disclosure breaches is an exceptional and proportionate remedy. The relevant relief-from-sanctions principles apply, but the court must separately decide whether striking out is justified. The decisive consideration is whether a fair trial remains possible.

A party’s duty to preserve third-party documents requires reasonable steps to prevent deletion or destruction. It does not necessarily require the party to obtain physical possession of those documents. A binding interlocutory decision on control of documents cannot be reopened in a later application absent a proper basis. Where disclosure is absent, the court may control the evidence that can be called or relied upon instead of striking out the claim.

The claimants brought procurement and contract claims concerning the allocation, rejection and supply of Covid-19 lateral flow tests. A further procurement claim was issued after disclosure in the earlier claims.

Waksman J ordered extended disclosure. Mr Coppel KC later held that documents held by MP Bio and Boson were within the claimants’ control for disclosure purposes: [2024] EWHC 1708 (TCC). The claimants had not carried out a disclosure exercise in respect of Boson’s documents, which Boson declined to provide.

The court determined whether the breaches justified striking out the first two claims, whether disclosure guidance should be given, and how the third claim should be managed.

1. Strike-out principles. The Mitchell and Denton principles, as explained in Walsham Chalet Park Ltd v Tallington Lakes Ltd, were applicable. The court had to consider the seriousness and significance of the default, any good reason, and all the circumstances. Strike-out remained a highly exceptional sanction. It had to be proportionate and just, and was not justified unless a fair trial was impossible or the court could not otherwise do justice.
2. Preservation. The claimants had not been shown to breach the obligation under paragraph 4.2(3) of Practice Direction 57AD to take reasonable steps to prevent relevant documents held by third parties from being deleted or destroyed. That obligation did not require them to obtain physical possession of Boson’s documents.
3. Binding interlocutory decision. Mr Coppel’s decision that Boson’s and MP Bio’s documents were within the claimants’ control resolved the disclosure issue between the parties. It was binding and could not be circumvented. The claimants had not carried out the required disclosure exercise concerning Boson’s documents.
4. Application of the test. The breach was serious and significant in its effects. The claimants had not established a good reason for it, particularly because their earlier case had relied on voluntary cooperation which had proved unavailable. The absence of Boson disclosure created a risk of an unfairly one-sided trial if Boson witnesses gave evidence.
5. Relief. Strike-out was nevertheless disproportionate. The court varied the earlier order so that the claimants could not call Boson witnesses without permission. Undisclosed Boson documents could not be relied upon without agreement or express permission. The strike-out application therefore failed.
6. Other applications. The court declined to give disclosure guidance because no useful further step had been identified. The third claim could be brought with the existing procurement claim, and all three claims should be heard together. The July 2025 trial was vacated and refixed for June 2026.