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The Defendant had applied for an extension of time to give disclosure. The Court vacated the trial date (a move of great significance) and granted an extension of time by way of a tailored unless order providing for a rolling programme of disclosure. The timing was based upon what the Defendant had said was a realistic timetable. Before the unless order expired the Defendant came back to court seeking a further extension of time. That application meant that a case management conference had to be vacated.

Notwithstanding that the court could be expected to be more generous where an application for an extension was made before expiry of the time granted, the court acted on the basis that Denton applied.

Taking the lead offered in Suez Fortune Investments Ltd and others v Talbot Underwriting Ltd and others [2016] EWHC 1085 (Comm) at paragraph [50], Andrews J. refused to grant further time- meaning that the sanction would take effect.
Andrews J. said,

“37. [Counsel] submitted that this is not a case of deliberate flouting of a court order, which of course I accept. He relies on the fact that the Defendant has processed far more documents than it envisaged it was going to have to process before the deadline, that SME resources are scarce and hard to come by, and that there has been an effort to comply. [Counsel] assured me that the Defendant is not seeking to be granted a privileged status by reason of being a public body, and he submitted that it has put in as many resources as possible… He further submitted that the Defendant in this case was faced with unique factors generated by matters of National Security which necessarily slowed down the process.
38. …. The failure to disclose the balance of the documents seems to be entirely resource-driven, and that is not and never has been a sufficient excuse.
39. The burden is on the Defendant to persuade the Court that this is an appropriate case in which to grant the extension of time for compliance. In dealing with this application I must, of course, bear in mind the overriding objective. In the present context the factors listed in CPR 1.2(d)(e) and(f) are of particular importance. The Court must endeavour to ensure that cases are dealt with expeditiously and fairly; it must allot to a case an appropriate share of the court’s resources, whilst taking into account the need to allot resources to other cases; and it must seek to enforce compliance with rules, practice directions and orders. An “Unless Order” is an order of last resort and the nature of the Court’s indulgence to the Defendant in the present case was underlined by Laing J’s warning that if the Defendant did not comply it was very unlikely to be given any further leeway to do so.
40. The starting-point, as [Counsel] conceded, is that there has been a substantial and serious breach of an “Unless Order” made against the background of what was accepted before [the first judge] to be the “highly regrettable” failure by the Defendant to comply with its disclosure obligations for over a year, without any real excuse. The previous breach was… as serious, significant and long-standing and she regarded the explanation for it as inadequate. She was reluctantly persuaded to give the Defendant a further 3½ months for compliance. As at the time of the hearing of the application there still has not been full compliance and the default cannot be described as “trivial”. The effect of acceding to the application would be to grant the Defendant another 3 months and even then the Court could not be confident that it would comply.
41. I have already indicated that I am unimpressed by the litany of excuses put forward for non-compliance, apart from the failures of technology which appear to have played only a minor role in the delay. This is not a case, in my judgment, in which the volume of documentation generated by the searches could not have been foreseen and in which the delay has been caused by matters beyond the Defendant’s control. I am not persuaded that the Defendant went about the searches in a sufficiently thorough manner to begin with and I am highly sceptical as to whether [the first judge] was presented with a realistic timetable on the basis of what was known at the time…
42. The pressure of other work and demands on the time of staff, including SMEs, is also an insufficient excuse, since those factors were known at the time when the original estimate was given and were built into the supposedly “realistic” timetable put before Laing J. If a team of six counsel was insufficient to carry out the filtering exercise in time, the Defendant could and should have instructed more…
43. I turn, therefore, to the third factor in Denton. The failures of the Defendant in this case have already undermined the conduct of the litigation by causing the trial date to be vacated, and now they have caused the CMC to be postponed until 2017 with the likelihood that a trial would not take place until 2018, five years after the claim form was issued and four years after the issues crystallised.
44. The Claimant is suffering from the depressive disorder to which Laing J alluded in paragraph 29 of her judgment, and his CFS has a poor prognosis. He faces the prospect of having the claim hanging over him for at least another year, for reasons which are not his fault. On the face of it the claim stands a real prospect of success; the disclosure… may well support it. It is said, on the other hand, that the Defendant has a good arguable defence which is supported by the evidence of an eminent expert in the field of Tropical Medicine…
46. …At the end of the day, Unless Orders should mean what they say. The Defendant knew the risk. Even though this was not a case of a deliberate flouting of a court order it is not an appropriate case in which to grant the Defendant any further indulgence. I therefore refuse the application, with the consequence that judgment will be entered on liability with damages to be assessed…”

Comment
This case is interesting because of the lack of sympathy displayed for the lack of resources from which the Defendant was suffering which would explain both the slowness to act. The moral of the story, if there is one, is not to put forward a timetable with which one cannot comply nor to leave applications for extensions until later in the day.

For earlier cases see here and here.

Edited for ease of reading.

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