An integral part of the procedure of suing for damages is disclosure. Where Home Office disclosure is inadequate or incomplete, it is necessary to go on pressing for compliance with rule 31 of the Civil Procedure Rules and for specific disclosure. Those requiring a lesson in how to do so should study AZT v Secretary of State for the Home Department [2019] EWHC 4 (QB), a masterclass from Janet Farrell of Bhatt Murphy and Graham Denholm of Landmark Chambers, with care.
In this case standard disclosure had been ordered early in December 2017.
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The day after the Defendant gave some disclosure on 1 February 2018, the Claimant’s solicitor wrote to point out that it was incomplete. It did not cover the second period of detention for which damages were pursued; it did not include documents that were known to exist because they had already been seen. Missing items, in particular emails, were chased. And chased again. To no avail, so an application was issued, sealed and listed for hearing. Disclosure was sought, but so was a barring order. The only response was an indication that the application was opposed.
Meanwhile the trial window had slipped by some nine months because of these delays and the Defendant’s failure to provide a defence.
At the 11th hour, the Defendant consented to the application, save for the debarring order. The consent order contains the preamble
UPON the Court noting that in agreeing to the terms herein the Claimant has agreed to the Defendant’s request not to pursue its application of 3 April 2018 for a debarring order in relation to the disclosure provisions at para. 3, but expressly reserves the right to seek a debarring order immediately if that provision is not complied with.
Meanwhile an electronic documents questionnaire was served and the Defendant declined to provide emails. A witness statement stating that disclosure obligations had been complied with, by a representative of the Defendant who was not in a position to know.
The Claimant’s indefatigable solicitor chased, to no avail, culminating in an application issued on 31 October 2018 that was the object of the application considered by the judge.
Paragraph 33 of the judgment contains a useful reminder that emails fall to be disclosed as part of the general disclosure obligation under part 31 of the Civil Procedure Rules. The judge went on to hold that:
37. The Defendant has taken no real initiative in narrowing the parameters of the search of its email material, but has sought, incorrectly in my view, to shift responsibility for this exercise to the Claimant. I consider that there is force in Ms Farrell’s characterisation of the Defendant’s approach as confusing the general disclosure obligation on the Defendant with the requests for specific disclosure made by the Claimant.
Out of the norm?
One can only speculate as to how often the Defendant Home Secretary is warned by his counsel that he is running the risk of indemnity costs against him, while those who act in unlawful detention damages claims will have their own views as to whether the failure to disclose in this case is pretty much par for the course or “out of the norm” for such cases.
But the norm for the purposes of Civil Procedure Rule 44.3 is not set by reference to unlawful detention cases alone, but civil litigation pursuing damages. On this basis the judge found that the Secretary of States’ “multiple breaches of the standard processes for disclosure and of court orders” in this case are not the norm. Costs were awarded on an indemnity basis, with the judge holding:
45. My interpretation of the procedural history… leads me to conclude that the Defendant has engaged in multiple breaches of the standard processes for disclosure, and of court orders, and that this has caused considerable additional cost and delay, including to the trial. On that basis I am satisfied that the “out of the norm” threshold is met. Accordingly, the Defendant will be ordered to pay the Claimant’s costs of and occasioned by this application on an indemnity basis.
Debarring
The greater prize was to have the Defendant debarred from defending the claim. The judge relied on the cases cited at summarised at paragraph 44x.4.3 of the White Book, and in particular on Marcan Shipping Ltd v Kefalas [2007] EWCA Civ 463 to find that debarring cannot be used for housekeeping. He was, however, clear that this case went far beyond matters of housekeeping (paragraph 49). Cleaning the Augean stables rather.
The prize ultimately proved out of reach. It had not been asserted that the Defendant’s failure was an attempt to manipulate the court process to his advantage. A fair trial was not impossible.
Steps to take
What practitioners can take from the case is the need for vigilance that disclosure has been complied with. It is necessary promptly to discover that it has not, and promptly to raise this with the Defendant. It is necessary to chase, promptly and repeatedly. With the ground thus prepared, an application to the court has a good chance of success, and thus the chances of getting a consent order also increase. If the Defendant is desperate to agree a consent order, there is scope to press hard for a particularly important aspect of the dispute to be recorded in the preamble.
And the Defendant is not safe from the risk of being debarred from defending the case:
52… I am not persuaded that the high threshold for a debarring order is yet met.
53. However, if there is any further slippage to the timetable, the trial fixture is likely to be at risk. I suspect that any further failings with respect to disclosure will receive short shrift, especially if there is a consequential application to break the trial fixture as a result. This judgment should assist any future judge or Master in fully understanding the procedural history.
Watch this space.
