Midland and Premier Properties Limited & Anor v Rakesh Singh Doal & Ors

Unless orders must be construed restrictively because their sanctions operate automatically and may deprive a party of its defence. The order must clearly identify what the party must do. Compliance is assessed by the order’s natural and ordinary meaning in context. Good faith does not itself establish compliance, although it may be relevant to relief from sanctions. Where an order requires a party to instruct an expert or contractor to undertake specified work and to provide the resulting material, it does not necessarily make the party responsible for the completeness or accuracy of that work. Debarring a party from defending is a draconian remedy of last resort. Before imposing it, the court must consider whether a further unless order or another proportionate measure can secure compliance and preserve a fair trial.

Sanman Property Management Limited claimed that 2020 Living Limited had breached a lending agreement concerning the redevelopment and sale of a Birmingham property, and that the other defendants had induced the breach or participated in an unlawful means conspiracy.

At a case management hearing, the High Court ordered a split trial and later made detailed disclosure orders concerning electronic devices and online accounts. An unless order provided for the defendants’ defences to be struck out unless they instructed an e-disclosure provider to undertake specified steps, complied with reporting obligations, and served a schedule. The defendants’ defences were struck out and they were debarred from defending. After a trial at which they could not defend, the High Court entered substantive findings against them and adjourned quantification issues.

The defendants appealed against the debarring decision and against the adjournment of counter-factual issues. The central questions were whether the unless order had been breached, whether striking out was proportionate, and what consequence followed for the second appeal.

1. First appeal allowed. The defendants had complied with the relevant unless order. Paragraph 4(b) of the 3 July 2024 order required them to instruct Consilio to produce a schedule and to provide Sanman with a copy of the schedule produced. It did not require them to guarantee the completeness or accuracy of Consilio’s work. The defendants had given the required instructions, including taking account of Sanman’s comments on the draft instructions, and had supplied the schedule.
2. The defendants had also complied with paragraph 3(a)–(e) and paragraph 5 of the 3 July order. Those provisions required instructions to Consilio and service of its report. They did not make the defendants responsible for ensuring that the forensic images were complete or that Consilio had carried out every step successfully. The fact that some accounts had not been fully imaged did not prevent the defendants from giving the required instructions.
3. The Court drew together the governing principles. An unless order must be strictly and restrictively construed. It must make clear what the party must do. Its meaning is determined by the natural and ordinary meaning of its words in context, including its historical context and purpose. A party’s good faith does not prevent an order taking effect if, properly construed, it has not been complied with, though good faith may be relevant to relief from sanctions. The terms of the particular order remain decisive.
4. The appellate court may interfere with an evaluative decision where an identifiable flaw, such as a gap in logic, inconsistency or failure to consider a material factor, undermines the conclusion. The alternative decision to strike out the defences under Civil Procedure Rules 1998, rule 3.4 was unsustainable. Debarring a defendant from defending is draconian and a remedy of last resort. The Judge had failed to consider a further unless order allowing the defendants an opportunity to complete whatever disclosure was properly required within a timetable compatible with the trial.
5. The order striking out the defences and debarring the defendants was disproportionate. The orders of 13 September 2024, 23 September 2024, 24 December 2024 and 23 January 2025 were set aside insofar as they affected the appellants, and the matter was remitted for retrial before a different judge. The second appeal did not require determination because the success of the first appeal required a retrial.

• Court of Appeal (Civil Division) — [2026] EWCA Civ 117: allowed the first appeal, set aside the specified High Court orders insofar as they affected the appellants, and remitted the matter for retrial before a different judge. The second appeal was not addressed because a retrial was required.
• High Court of Justice, Business and Property Courts in Birmingham — His Honour Judge Rawlings, sitting as a High Court judge: struck out the second to sixth defendants’ defences, debarred them from defending, subsequently made substantive findings after a trial at which they were debarred, and adjourned counter-factual issues to a quantification hearing.