Warby J. said,
Article 6: Grant of sanction –
14. The main reasons for these conclusions are, in summary, these:
(1) Striking out a case is the ultimate sanction, which is only appropriate in the most serious of cases. It involves, on the face of things, a deprivation of the Convention right to a fair trial.
(2) It is not suggested that the admitted defaults have made a fair trial impossible in this case.
(3) I am not persuaded that I should conclude at this stage, without cross examination, that the defendants’ failures are evidence of a wish to ensure there is no fair trial, or that they amounted to deliberate suppression of documents, as alleged by Mr C. Nor do I see any other sufficient ground for concluding that the entry of judgment on the merits is the right response to these procedural failures.
(4) I do not think a trial would be pointless…There are triable issues as to whether the defendants acted wrongfully. I accept [the] submission that there would remain a substantial argument to be had, even if I granted judgment on liability, as to what form of judgment can properly be entered, given the nature of the case and the state of the pleaded case for Mr C. I accept [the] submission that greater clarity is required in the statements of case. The factual issues are, however, very narrow. A trial would be relatively short, a matter of 2-3 days. The parties have substantial means, and the balance of power is not unequal.
(5) [The] factual case about the defendants’ disclosure amounts to an allegation of contempt of court, and it is open to him to seek permission to pursue such proceedings which could, in principle, be heard concurrently with the trial. If any form of punishment is appropriate for what the Initial Defendants have done, or failed to do, it can be imposed by those means.
(6) As for the costs orders, these reflect the admitted faults of the defendant and the gravity of their failures, which are outside the norm. The provisional view on the costs of the strike-out application reflects the fact that these defendants did not concede until the hearing that any substantial sanction ought to be imposed.
33. In Summers the Supreme Court considered what sanctions other than the striking out of a claim might be appropriate, depending on the circumstances, by way of deterrence. At  –  it identified several, including the difficulties a dishonest party is likely to have in persuading a trial judge to accept his or her evidence; costs sanctions; and proceedings for contempt….
38. Adopting the Denton three part test,
[a] the breaches were serious and significant;
[b] the explanations given are not “good” ones, because they do involve serious oversights so far as the emails are concerned – but the explanations are innocent rather than guilty ones, which I do not feel justified in rejecting on this application; and
[c] having regard to all the circumstances, the striking out and the entry of judgment without a trial would represent an excessive, disproportionate, and inappropriate sanction.
That is all the more so when I consider, as I must, that this is not a case where the defendants are seeking relief from a sanction that has already been justifiably imposed. The question is the logically prior one of whether a sanction should be granted.
[Edited and formatted for ease of reading. Matters in square brackets added.]