The UK Ministry of Defence (“MoD”) lost a high-profile case after failing, first, to comply with a trial judge’s disclosure order and failing to meet a deadline for compliance with the court’s “Unless Order” which warned that non-compliance would result in MoD having its defences struck out and judgment entered for the claimant. The day before the Unless Order’s 21 October 2016 compliance deadline, the MoD applied for an extension of time and relief from the sanctions, but The Honourable Mrs. Justice Andrews of the High Court of England and Wales saw no reason to ignore or delay the sanctions.
The landmark case, Eaglesham v The Ministry of Defence, was brought five years ago by former Royal Marine commando corporal Philip Eaglesham, who alleged that the MoD had failed in its duty of care in treatment when he became ill with what is known as “Q Fever” (Coxiella Burnetti) as he was traveling back to the UK after service in Afghanistan. Eaglesham contracted the chronic condition two days before he was due to return home from a tour of duty in 2010. He first experienced flu-like symptoms which escalated into muscular weakness, and Eaglesham now requires a wheelchair. The quantum of his claim is estimated to be in the order of £6 – £8 million — soon payable by the MoD because of the disclosure failures. In addition, Eaglesham’s victory could pave the way for Q Fever claims by other MoD veterans.
The “Unless Order” followed a series of disclosure deadlines missed by the MoD, and compelled the MoD to meet disclosure obligations originally ordered for September 2015. The volumes involved were not large at all — the Unless Order required the MoD produce approximately 600 previously identified documents on a rolling basis by 21 October 2016. In total, 239 documents were produced by the deadline (179 on the last day). Before the Court denied the application for an extension on 24 November 2016, the MoD had disclosed a grand total of 477 documents and promised the rest in January 2017, effectively delaying trial and adjudication until 2018 according to the Court.
For US practitioners, it is interesting that the Court chastised the MoD for delivering what documents they disclosed “unhelpfully”, citing Eaglesham’s counsel complaints that:
“[T]he documents were provided in random order, with no explanation as to where they have come from, no explanation of the context in which they were prepared, and no explanation of the acronyms/abbreviations used in them…There has been no attempt by the Defendant to give even a broad range of dates or details of where the undated documents were found or which department they came from.”
“This point — the convenience or lack of it in the provision of disclosed documents — is something that matters,” explains Chris Dale in his E-Disclosure Information Project blogpost on Eaglesham, that helpfully places the decision in the context of Lord Justice Scott Baker’s 2009 Court of Appeal decision in Al-Sweady & Ors, R (on the application of) v Secretary of State for the Defence, in which he castigated a Minister, the Treasury Solicitor, and a serving army officer by name, for disclosure failures in a judicial review application derived from the Iraq war.
Mrs. Justice Andrews refrained from castigating individuals at the MoD in her decision, and one can only imagine the difficulty of moving a multi-part identification, search, review, PII and security sensitivity analysis through the MoD’s bureaucracy at a time of military austerity. As Chris Dale aptly put it: “Those of you with nice shiny information systems, centrally co-ordinated and governed, might spare a thought for those in government departments required to give disclosure from a set of legacy databases constructed over many years on an ad hoc basis, with genuine requirements of secrecy and no capital budgets to fix the inheritance.”