No ifs or buts when it comes to Disclosure!
Winchester Park Ltd v 1 Palace Gate Freehold Ltd [2024] EWHC 661 (Ch) (22 March 2024) (bailii.org)
The factual background involved the Claimant, who was a limited company, seeking enfranchisement of the flats of residential premises. A key issue in the case was whether a particular flat had been used for office purposes as opposed to residential purposes. The Defendant was to give disclosure on this issue. The Defendant’s first list was incomplete as was the second list. The Claimant obtained an order for specific disclosure. That order was made as a peremptory order, with the defence being automatically struck out if there was non-compliance.
The Claimant argued that the Defendant had failed to comply with the peremptory order by filing a further incomplete list. As such, the Claimant requested a declaration.
The Defendant issued its own application seeking relief from sanction. The Defendant acknowledged that although there had been a breach of the peremptory order, it was of a limited kind. The Defendant averred that when the documents in the third list were copied and provided to the Claimant, a couple were inadvertently missed in the copying process, and as a result, the copies were not provided. The Defendant insisted that the issue was rectified as soon as it was identified. The Defendant maintained that the peremptory order had been complied with.
A hearing for the Defendant’s Application was listed to take place on 1 December 2022. However, two days or so before the hearing, the Defendant disclosed 40 or so further documents.
At the Application hearing, HHJ Parfitt held that there had been a serious failure to comply with the peremptory order in relation to disclosure going beyond Winchester Park’s failure to provide copies of the 18 documents and that no clear explanation had been given as to what searches the Defendant had in fact carried out, and as such the Court could have no confidence that disclosure had been properly carried out.
The court applied the Denton test and considered that the Defendant’s defaults were serious and disproportionate. HHJ Parfitt refused relief from sanction, struck out the Defence, and granted the declaration sought by the Claimant.
On appeal, the Court found that there was no question that HHJ Parfitt misdirected himself on the law and that he “was correctly placing particular weight on the two factors specifically referenced in CPR, rule 3.9, namely (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with rules, practice directions and orders.” As such, the appeal was dismissed.
Summary
The key point of this case is the emphasis on the Defendant’s inadequacy causing the Claimant to have to incur additional and substantial costs and undermining the integrity of the trial process.
This case underlines the importance of disclosure and strict adherence to and compliance with CPR and PD by legal representatives.
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18.07.2024