In Azeez v Momson – Butterworths Law Direct 19.3.09 the Claimant had obtained an order debarring the Defendant from defending the proceedings unless a consent order relating to disclosure had been fully complied with by a certain date.

The Defendant appealed, alleging that the order debarring him from defending the action fell to be set aside on the basis that the judge had failed to properly address the relevant considerations set out at CPR 3.9.

The Court of Appeal found that disclosure of the specified documents had been accepted before the High Court judge as necessary for the fair trial of the Claimant's various claims, and therefore a different view of the facts could not be taken. It held that the judge had been correct in finding that a trial without the requested disclosure would have been manifestly unfair to the Claimant and that therefore the Defendant would not be granted relief from sanction.