Test for an order to strike out for failure to comply with a disclosure order


A consent order was made requiring the defendant to give standard disclosure and inspection by an extended deadline. When the defendant failed to comply with that order, its defence was struck out and judgment entered against it. The defendant applied to set aside that judgment.

The case largely turns on its particular facts, but Smith J examined the relevant test for compliance with an order like the consent order in this case. He concluded as follows: "Hence various tests are mentioned in the authorities: whether the prima facie compliant document is "illusory", whether it can fairly bear its description, and whether it is made "in good faith". The tests are different, and it is not clear to me whether the authorities regard them as reflecting alternative or cumulative requirements. For my part, I find it difficult to accept that a document provided in "good faith" will always be either necessary or sufficient to comply with an unless order, and in particular I would think that a litigant who deliberately did not disclose a document of marginal significance – perhaps because of some embarrassing content unrelated to the litigation - but otherwise made full and proper disclosure would not fail to comply with a typical "unless" order for disclosure".

On the facts of this case, although there had been deficiencies in the defendant's disclosure, it could not be said that its list had been illusory or served in bad faith. Accordingly, judgment was set aside.