QRT v JBE

A litigant seeking an adjournment must prove that inability to attend or participate is genuine and that an adjournment is necessary. Medical evidence that a party is unfit for work may not establish inability to participate in a hearing. Where participation remains possible, the court exercises its discretion under the overriding objective.

Serious non-compliance with disclosure orders does not automatically justify striking out a defence or summary judgment. The court should consider whether those remedies advance the proceedings and may instead impose a further unless order requiring compliance, supported by appropriate sanctions.

The claimant sought final injunctive relief concerning a sexually explicit video and related material which he alleged the defendant had created and threatened to disclose without consent. An interim injunction had been granted in March 2022. The proceedings were delayed by disputes concerning the identification, preservation and inspection of the defendant’s electronic devices.

The claimant applied for a terminating ruling, relying on alleged breaches of device-related orders. The defendant applied to adjourn the hearing, relying on medical circumstances, lack of consultation, difficulty obtaining legal assistance and bail restrictions arising from related private criminal proceedings. The issues were whether the hearing should be adjourned, whether the defendant had failed to identify a relevant device, and what procedural or coercive response was appropriate.

1. Adjournment. The adjournment application was refused. Although ECHR art 6 was engaged, the defendant did not prove that he was genuinely unable to attend or participate. The medical evidence established that he was unfit for work, not that he was unfit to participate in a hearing. Remote participation was a reasonable adjustment. The remaining discretionary factors favoured proceeding, given the substantial delay and the need to advance the litigation. The approach in Teinaz v Wandsworth LBC [2002] EWCA Civ 1040 and the evidential guidance in Decker v Hopcraft [2015] EWHC 1170 (QB) were applied.
2. Compliance. The evidence showed that the defendant had acquired and used a phone during the relevant period which was not the Samsung Galaxy Ace he had disclosed. He was therefore in breach of the order of 8 September 2022. The meaning of “used” was to be construed objectively in light of the purpose of the electronic-devices regime. It was not confined to calls and text messages and could include internet-based communications such as WhatsApp.
3. Strike-out and summary judgment. Strike-out was refused. The defence contained a straightforward denial of responsibility for the video and was not abusive merely because the defendant wished to preserve the parties’ relationship while disputing responsibility. Strike-out would not materially determine the claimant’s need to prove liability and was better reserved as a sanction for further non-compliance.
4. Summary judgment was also refused. Non-compliance might justify an adverse inference at trial, but such inferences arise from common sense and context and have no special legal force: Efobi v Royal Mail Group Ltd [2021] UKSC 33, [2021] 1 WLR 3863. The defendant had not yet served trial evidence or been cross-examined, so a realistic prospect remained that he could resist the inference. The threshold in CPR 24.3(a), applying the principles discussed in EasyAir Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch), was not met.
5. An unless order was to require a further witness statement identifying the concealed phone and any other relevant devices, delivery of devices within the defendant’s possession or control for imaging and inspection, and compliance with the existing expert regime. The specified sanction was strike-out of the defence, with a penal notice and potential contempt consequences. Costs were provisionally ordered against the defendant, with the claimant’s application costs to be assessed on the indemnity basis.