The High Court has refused the defendant’s application for an extension of time for compliance with an unless order and for relief from sanctions.

Following the defendant’s non-compliance with a consent order for the disclosure of certain documents, the court made an unless order stating that, if the defendant did not disclose the documents by 21 October 2016, the defence would be struck out, and judgment would be entered for the claimant.

On 20 October 2016, the defendant applied for an extension of time to comply with the disclosure requirements, and for relief from sanctions for non-compliance with the unless order. The court refused the application and entered judgment for the claimant. Although the defendant’s application was made the day before compliance was due, the court applied the principles set out in Denton v White:

  • When the unless order was made, the defendant was warned that, if it did not comply, it “must realise that it is very unlikely to be given any further leeway to do so”. This suggested that relief should not be granted. Allowing a further extension of time would mean that there was no prospect of the trial taking place in 2017, which would prejudice the claimant.
  • The court was not persuaded by the defendant’s explanation for the delay. It must have been obvious to the defendant, before 20 October 2016, that it was not going to be able to comply with the unless order, but nothing was done to alert the claimant’s solicitors, or the court, to the risk of non-compliance. A party who faces difficulties with compliance should explain this to the court as soon as the problems arise.
  • On the facts, there was no basis for granting any indulgence to the defendant. The court held that unless orders should mean what they say.

Case: Eaglesham v Ministry of Defence [2016] EWHC 3011 (QB) (24 November 2016) (Bailii).