High Court makes "unless order" for disclosure citing increased emphasis on compliance

In a decision handed down last Friday, the High Court granted an extension of time to comply with a disclosure order but made an “unless order” that in the event of non-compliance the claim would be struck out: In the matter of Atrium Training Services Ltd [2013] EWHC 1562 (Ch).

Since the application had been made before the deadline expired, this was not a case where the court had to apply the new rules relating to relief from sanctions under CPR 3.9 (see our Jackson reforms home page for more information). The proper approach was for the court to exercise its discretion having regard to the overriding objective under CPR 1.1, and in particular new sub-paragraph (f) which was added from 1 April to make it clear that dealing with cases justly includes “enforcing compliance with rules, practice directions and orders”.

The judge (Henderson J) said there is no doubt that “… the court will scrutinise an application for an extension more rigorously than it might have done before 1 April, and … must firmly discourage any easy assumption that an extension of time will be granted if it would not involve any obvious prejudice to the other side.” He referred to the recent decisions in Fons (see post) and Venulum (see post) as illustrating this increasingly strict approach.

At the same time, however, he noted that it is important not to go to the other extreme and “encourage unreasonable opposition to extensions which are applied for in time and which involve no significant fresh prejudice to the other parties”. He recognised, in particular, that there are some orders relating to specific stages of trial preparation (eg. disclosure, witness statements, expert evidence) where there may be so many imponderables when the order is made that the date for compliance cannot sensibly be regarded as written in stone, and so reasonable extensions of time may be needed as the matter develops.

This decision is a further indication of the court's increased emphasis on compliance with court orders, albeit tempered with a welcome recognition that there may be a need for flexibility in some cases. Where the balance will be struck in a given case will depend on all the circumstances, including the stage at which the order was made and a party's history of compliance or otherwise.