Powell v Watford BC, QBD, 10/7/2017


The claimant had badly injured his hand on some broken glass whilst playing football in a park managed by the defendant and brought a claim for damages in the region of £200,000.

Prior to trial the district judge noted that the documents that had been provided by the defendant appeared incomplete so an order was made for the defendant to carry out a search of policy documents by a specified date. The defendant failed to comply with the court order and the claimant applied for an ‘Unless Order’ for them to disclose the policy documents, failing which the claim would be struck out.

The defendant’s solicitor wrote to the claimant advising that although the defendant had carried out a full search they could not locate any of the requested documents. On 28 July 2016 the judge made an ‘Unless Order’ that unless the defendant complied with the disclosure order then judgment would be entered against them. The defendant failed to provide any of the requested documents but successfully applied to set aside the judgment that had been entered against them.

The trial took place in October 2016 and the trial judge dismissed the claim.

The claimant appealed against the decision to set aside judgment submitting that the defendant had breached an ‘Unless Order’ which was a final order that could only be set aside in exceptional circumstances. It was argued that the judge had been wrong to have taken the view that the defendant’s letter providing that no disclosure documents could be located was sufficient to comply with the ‘Unless Order’.

The claimant also appealed against the trial judge’s decision to dismiss their claim on the basis that they had failed to consider the deficiencies in the defendant’s pleaded case because there was no evidence that the defendant had carried out any adequate risk assessment and the fact that there were no supporting documents should have led to an inference against them.


The High Court held that the defendant’s letter was not compliant with the Civil Procedure Rules and the defendant had not complied with the ‘Unless Order’. It was concluded that the defendant’s letter, advising that the requested documents could not be located, was unparticularised and inadequate and was merely a blanket statement providing that no records had been located.

It was specifically concluded that the letter did not state who carried out the search, the extent of the search, or who had ordered the search and merely amounted to hearsay on the part of the defendant’s solicitor which was not sufficient evidence.

The High Court noted that whether or not the defendant had an adequate system in place was relevant to liability consideration and there was at least one document relevant to the issue of risk assessments that could have aided the court and should have been disclosed.

It was noted that the trial judge had accepted oral evidence that there had been a reasonable and proper system in place in relation to the risk of injury at the park, which consisted of a weekly inspection of the park and further inspections if any member of the public reported broken glass or rubbish. Also, the High Court found that the trial judge had noted the absence of documentary evidence but had accepted that the oral evidence was comprehensive, and that it showed that the system had been properly implemented on the day of the accident.

The High Court stated that the trial judge should have questioned the extent to which the defendant’s failure to carry out a risk assessment might have been causative of the accident. It was concluded that the trial judge had not dealt properly with the issue in respect of the lack of risk assessments.

As a result, the claimant successfully appealed against the defendant setting aside judgment in default and also successfully appealed the trial judge’s decision in respect of liability.

What this means for you

This case serves as a reminder that it is crucial to comply with ‘Unless Orders’ because they are made as a last resort and the parties should know the risk of non-compliance with such an order. In particular, it was seen that the defendant’s letter was not sufficient to comply with the ‘Unless Order’ because it was not a disclosure statement. Also, the court was aware that the defendant had failed to disclose at least one document that was relevant to the issue of risk assessments and this was favourable to the claimant’s case.

It is easy to fall into the trap of thinking that disclosure of documents is a routine and dull task in litigation and is something to “get out of the way”. However, disclosure and inspection of documents enables the parties to ascertain what documentation they and their opponent(s) have and whether this documentation supports or adversely affects their case. This is therefore an essential part of the litigation process because it enables the parties to assess the available evidence and consider the strengths and weaknesses of their case and their opponent’s case.

The courts are focussed on dealing with cases justly and at proportionate cost and if a party’s lack of disclosure is hindering the progress of the claim and potentially prejudicing an opponent, then there is the real risk that the party in breach will not be allowed to rely upon disclosure documentation or will face the prospect of their case being struck out or judgment being entered against them.