Philip Morris v Knights Professional Services Limited & Ors

An unless order must clearly identify what compliance requires. Its terms are construed restrictively, but good faith does not prevent a sanction taking effect where the order has not been complied with. Where a court order already prescribes the consequence of non-compliance, CPR r 3.10 does not provide an alternative validation route. The court must address relief from sanctions under Denton and CPR r 3.9. Material failures in search-based disclosure, including inadequate search-certification, defective document lists, non-native electronic production and late disclosure of relevant documents, may be serious and significant. Late attempts to cure such failures will not necessarily justify relief, particularly where they jeopardise a fixed trial timetable and reflect marked carelessness or misunderstanding of disclosure obligations.

The claimant brought professional negligence proceedings against solicitors and counsel arising from advice concerning a share sale agreement and subsequent litigation. At a case management conference on 8 April 2025, the court ordered the claimant to provide Model D extended disclosure under Practice Direction 57AD by 3 June 2025. An unless order provided that failure to comply would automatically strike out the claim.

The defendants alleged defects in the claimant’s disclosure certificate, document list and production of electronic documents, together with failures to disclose relevant documents. The claimant sought an extension of time for witness statements and, if necessary, relief from sanctions. The central issues were whether the disclosure order had been breached, whether CPR r 3.10 applied, and whether relief should be granted.

1. Construction of the unless order. The order was clear. Its purpose and the litigation history, including the claimant’s repeated last-minute approach and the imminent trial, were relevant context. The principles collected in Midland Premier Properties Ltd v Doal supported restrictive construction, clarity of obligation and the conclusion that good faith does not prevent an unless order taking effect when its terms have not been satisfied.
2. CPR r 3.10. The court accepted that “error of procedure” might have a wide meaning, but found it unnecessary to decide the point. Once the court had made an order under CPR r 3.1(3) prescribing the consequence of breach, CPR r 3.10 could not be used as an alternative, lesser validation test. The issue was instead relief from the sanction under CPR rr 3.8 and 3.9. This approach was supported by analogy with Walsham Chalet Park Ltd v Tallington Lakes Ltd.
3. Breaches. The claimant’s disclosure certificate failed to state the limits of the searches and to explain limits not contained in the Disclosure Review Document or order. The document list contained significant omissions of dates and inaccurate or misleading descriptions. Electronic documents were produced in a single PDF rather than native format preserving metadata. Relevant fee notes, a bank statement and a professional engagement letter were disclosed only after the deadline. Any one of these breaches was sufficient.
4. Relief from sanctions. Applying the three-stage test in Denton v T H White Ltd, the breaches were serious and significant. The explanations were inadequate and showed marked carelessness and misunderstanding of the disclosure process. The requirements of efficient litigation, proportionate cost and compliance with court orders strongly weighed against relief. Although further material was eventually provided, the defendants could not verify that disclosure was complete and the trial timetable was endangered.
5. The application for relief from sanctions was dismissed. The claim was struck out. Consequential matters were adjourned to the PTR date, which became a consequentials hearing.

First-instance decision. The judgment records earlier procedural decisions in the same proceedings, including [2022] EWHC 3679 (Ch) and refusal of permission to appeal by Arnold LJ on 23 February 2023, but the present applications were determined by the High Court.