The High Court has granted a defendant relief from the sanction of striking out its defence following errors in compliance with an “unless order” to give e-disclosure: Wyche v Careforce Group PLC (unreported, QBD, 25 July 2013). This decision illustrates that, despite the court’s increased focus on compliance as a result of the Jackson reforms, the court can still make allowance for human error and grant relief in an appropriate case.
Nonetheless, given the court’s broad discretion on such matters and the general trend toward a strict approach, parties would be well advised to comply carefully with rules and court orders so as to avoid falling foul of tough decisions under the new regime.
A number of decisions since 1 April this year have highlighted the court’s increasingly strict approach toward failures in compliance as a result of changes brought in by the Jackson reforms (see for example our posts Fons, Venulum and Atrium).
These changes include an amendment to Civil Procedure Rule (CPR) 3.9 which governs applications for relief from sanctions imposed for failure to comply with any rule, practice direction or court order. The amended rule requires the court to consider all the circumstances of the case including the need “for litigation to be conducted efficiently and at proportionate cost” and “to enforce compliance with rules, practice directions and orders”. These two factors replace the previous (non-exhaustive) list of nine circumstances the court would consider on such applications, which included whether the application for relief had been made promptly, whether the failure to comply was intentional, whether there was a good explanation for it, and the effect of both the failure and the grant of relief on each party.
In Wyche, the defendant was subject to an “unless order” requiring it to comply with certain e-disclosure orders, failing which it would be debarred from defending the claim. The defendant purported to comply with the orders, but subsequently admitted that there had been a number of failures including an incorrect keyword search, the omission of a keyword search, and the miscategorisation of a number of documents as privileged. The defendant applied for relief from sanctions under CPR 3.9 and the claimant applied to strike out the defence on the basis of the non-compliance.
The court (Walker J) granted the defendant relief from sanctions, rejecting the claimant’s submission that whether the mistakes were inadvertent or deliberate was irrelevant in considering whether to grant relief from sanctions under CPR 3.9. Nor was the court persuaded that steps taken when the mistake was identified were irrelevant.
Here the errors had been inadvertent, they had been speedily remedied once they came to the defendant’s attention, and they had not affected the scheduled trial date. In the circumstances, the claimant’s application to strike out the defence ought not to have been brought. The defendant was entitled to relief from sanctions under CPR 3.9.