A failure to comply with an unless order may be technical in nature, but can still lead to a claim or defence being struck out.
In Fairacres Ltd v Mohamed, the defendant failed to serve his list of documents in the required format. The claimant requested that the defendant comply with the requirements on three occasions, but the defendant failed to do so. He contended that, although no formal list had been served, the relevant documents had been exhibited to his witness statement which sufficed and there was no need to provide a separate list. The claimant obtained an unless order to the effect that unless the defendant served the list in the requisite format by a certain date, he be debarred from defending and his counterclaim be struck out. The defendant applied to set the unless order aside contending that although he had not complied with the unless order, the default had in effect been remedied by the inclusion of the documents in the witness statement and no prejudice had been caused to the claimant.
The Court of Appeal held that although failure to serve a proper list of documents was a technical breach, the defendant's tactics were simply to delay paying what was due. He had failed to comply with the claimant's requests and had been in serial breach of the unless order. It was therefore appropriate to debar him defending the claim or proceeding with the counterclaim.
Things to consider
The courts will take a robust view of failure to comply with unless orders, particularly where the defaulting party has no good reason for failing to comply. Technical breaches alone will not necessarily save the defaulting party especially where there is a history of disregard for the court rules.