Goodacre v Montfort International Ltd, QBS (Comm) 22/8/2017
In this case, the court had ordered the parties to provide disclosure by April 2017 and for witness statements to be exchanged by June 2017.
The defendant did not meet their disclosure obligations or produce any witness statements. The claimant put the defendant on notice that they needed to make an application for relief from sanctions in respect of their failure to disclose the required documents and that the court’s permission would be required for them to rely on any witness statements.
The defendant’s counsel accepted that he had been lax in complying with court deadlines due to ill-health and on the day of the hearing of their application for relief, they provided the claimant with a USB stick containing the defendant’s disclosure documents.
The court applied the three stage test as set out in Denton v TH White Ltd  EWCA Civ 906 and concluded that the breaches were serious and significant because the trial was due to start in approximately two months and no proper disclosure or witness statement(s) had been provided. The court commented that it was hard to see how a more serious default could exist and although the defendant’s counsel was in ill-health, this was not a good enough reason for the breach. It was found that there were a number of fee-earners in the defendant's legal team who could have carried out the steps on behalf of the defendant if they had been engaged in the process and had been given proper instructions.
The court assessed all of the circumstances of the case and held that the defendant’s reliance on the fact that the claim was only worth approximately £50,000 in value did not make it just and proportionate for its application to be permitted. Also, the court held that even though the defendant would not be able to file any evidence in respect of quantum, it could still cross-examine the claimant’s expert at trial so it would not be sufficiently prejudiced.
As a result, the defendant’s application for relief from sanctions was refused, the defence was struck out and judgment was entered for the claimant in respect of liability.
What this means for you
This case again highlights the importance of complying with court orders, rules and practice directions. It should be noted that the defendant failed to comply with more than one court direction and even though their counsel was in ill-health, there was evidence that other fee earners could have assisted on the case. Also, there was no evidence to show that attempts were made to try and comply with court deadlines.
Here, the application hearing for relief from sanctions was close to trial and at this stage the defendant had done very little to try to rectify the breaches because they had failed to provide adequate disclosure and had not served any witness evidence. Also, there was no evidence that the defendant was in the position or when they would be in the position to serve witness evidence.
The decision reached by the court was not surprising and serves as a reminder of the importance of compliance and promptly making an application for relief from sanctions in the event that a court deadline cannot be met. It also highlights that ill-health alone will unlikely be a good enough reason for non-compliance under stage two of the Denton test.