Eaglesham v Ministry of Defence

This is an application by the Defendant for an extension of time for compliance with an “Unless” Order and for relief from sanctions.

On 5 July 2016 Mrs Justice Elizabeth Laing made an Order requiring the Defendant to comply in full with paragraph 1 of an Order of 9 September 2015 (an order made by consent for the disclosure of specified documents and classes of documents) by no later than 4pm on 21 October 2016. She directed that between the date of her Order and 21 October 2016 the Defendant should provide disclosure on a “rolling” basis as documents became available for disclosure. Her Order provided that:

“Unless the Defendant complies with paragraph 1 of this Order in full by 4pm on 21 October 2016 the Defence shall be struck out and Judgment shall be entered for the Claimant for damages to be assessed by the Court.”

The application notice was issued on 20 October 2016, the day before the deadline for compliance. Mr Heppinstall, who appeared for the Defendant today, as he did before Laing J, submitted that the Defendant issued the application at the last possible minute because it only became apparent late in the day that it was going to be unable to comply with the Order. Quite apart from the fact that there was no evidence before me addressing, let alone explaining the lateness of the application, I regret that I cannot accept that submission. On the basis of the evidence that has been filed in support of the application, it must have been obvious to the Defendant long before 20 October that it was not going to comply with the Order.

The Defendant has still not fully complied, although four more weeks have passed; and it is seeking up to a further two months’ indulgence. A party who faces genuine difficulties in compliance with a court Order, particularly an Unless Order, should come back to the Court and explain the problems that it is facing as soon as they arise, if those problems are sufficiently serious to give rise to a real risk of non-compliance.

The effect of issuing an application notice at the latest possible moment was that although it was impossible to list a hearing before the deadline for compliance expired, technically this is not an application for relief against sanctions because the sanction has yet to bite, see Hallam Estates Ltd v Baker [2014] EWCA Civ 661. However, Mr Heppinstall realistically conceded that the Court of Appeal’s reasoning and approach in Denton v TH White Ltd [2014] 1 WLR 3926 should be applied, as they were by Laing J on the previous occasion. The observations of Jackson LJ in Oak Cash & Carry Ltd v British Gas Trading Ltd [2016] EWCA Civ 153 at [38]-[41] are also relevant, given that this is a case of non-compliance with an Unless Order.

As Flaux J said in another case involving non-compliance with an Unless Order, Suez Fortune Investments Ltd and others v Talbot Underwriting Ltd and others [2016] EWHC 1085 (Comm) at [50] the necessary underlying assumption in Denton v White is that relief may be granted if either (i) the relevant default has been cured (in other words, the rule, practice direction or Order has been complied with or is about to be complied with) or (ii) that compliance can somehow be dispensed with, perhaps on terms, without doing injustice between the parties.

As in that case, the Court in the present case imposed a tailor-made Unless Order designed to meet the circumstances of the particular case. It was imposed because Laing J considered that the justice of the case required such an order to be made and complied with. It was made against a background of serious and substantial non-compliance over a lengthy period, for which there was absolutely no excuse. It was made on the understanding (indeed on the express assurance) that the Defendant would devote the necessary time and resources to ensuring compliance.

The application for an extension of time is supported by two witness statements of Jonathan Duke-Evans, who is a senior civil servant and the Head of Common Law Claims and Policy, Judicial Reviews and Public Inquiries at the Directorate of Judicial Engagement Policy (“DJEP”). He is the official who is responsible for managing the team in the Ministry of Defence which deals with this claim. Mr Duke-Evans had earlier provided a witness statement, signed with a statement of truth, in support of the Defendant’s application for an extension of time in which to comply with its disclosure obligations under the Order of 9 September 2015, to which Laing J reluctantly acceded.

In her judgment of 5 July [2016] EWHC 2891 (QB) Laing J set out the history of this matter in some considerable detail and I do not propose to repeat it here. This judgment must be read in conjunction with that earlier judgment. Suffice it to say that the Claimant, a Royal Marine, became very ill with what is known as Q fever (Coxiella Burnetii) in October 2010, when he was travelling back to the UK after a period of service in Afghanistan. He claims that he should have been given the antibiotic doxycycline as a prophylactic before he went to Afghanistan and/or as soon as his symptoms materialised, that the failure to do so was a breach of the Defendant’s duty of care, and that as a result he suffered a very serious chronic fatigue syndrome (“CFS”) which is a well-known consequence of Q Fever.

The Claimant was admitted to hospital in Cyprus on or around 5 October 2010 and the supervising RAF consultant physician, Group Captain Laundy, has served a statement in which he acknowledges and asserts that he was aware at all material times of Q Fever, and that he and the treating staff specifically recognized the possibility that this was what the Claimant was suffering from. Hence they ran tests and sought advice from an expert, Lt Col Bailey of Heartlands Hospital in Birmingham, whilst the Claimant was under their care. Lt Col Bailey led a study in 2008 commissioned by the Defendant, which was directed to identifying the condition or conditions generically described as “Helmand Fever” and how best to protect against them and treat them. Group Captain Laundy has also accepted that he was aware of CFS as a potential complication of various infectious diseases including, specifically, Q Fever.

The claim was issued as long ago as 8 November 2013 and the defence was served on 11 June 2014. The issues between the parties going to disclosure have been clear since then. In broad terms there are two key issues:

The Claimant was dissatisfied with the Defendant’s standard disclosure (which was provided after the parties had agreed a one-month extension of time) and issued an application for specific disclosure under CPR 31.12 which was due to be heard on 7 September 2015. In the event, the Defendant gave its consent to an order to disclose documents and classes of documents specified in a list attached to the Claimant’s application, by 18 September 2015. The Defendant also consented to an order that the trial should be listed for 8 days on the first available date after 28 March 2016. In consequence the trial was listed for early October 2016.

When the Defendant eventually got around to making an application for an extension of time for compliance with that order for specific disclosure, which it did on 26 May 2016, more than eight months after the date on which it had agreed to provide the documents, it sought an extension to 21 October 2016, a week or so after the date by which the trial should have ended. Thus at the time when the Defendant was first seeking the indulgence of the Court, it wanted around six months more to complete the task of disclosure.

In his witness statement in support of that application, dated 26 May 2016, Mr Duke-Evans set out a detailed timetable for completion of the disclosure exercise which he described as “realistic” and “as short as we believe can practicably be achieved.” That timetable included a two-week period for Ministerial consideration of PII material. This was on the basis that 3,624 documents had been identified which were relevant or potentially relevant to the claim, in consequence of a search of the electronic base DAS. Mr Duke-Evans said that these documents would need to undergo an “urgent relevance and sensitivity review” before a disclosure statement supported by witness evidence could be signed. He described what that would entail. Although Mr Duke-Evans said that searches were continuing within the MOD, the tenor of his statement would lead the reader to believe that the search of the DAS had been completed in May. He did however indicate that a search of paper files might generate some further documentation, and this is alluded to in the judgment of Laing J.

Mr Duke-Evans’ timetable, if it were adhered to, should have meant that by the time that Laing J came to consider the matter on 5 July 2016 the relevant documents would have been identified and processed, and the next stage would be the SME sensitivity review. So far as I can tell, nothing was said to Laing J to indicate that there had been any slippage, that these steps had not already been taken, or that a vast quantity of further documents had been generated, by the time she came to consider the matter.

The Claimant sought to keep the trial date and urged Laing J to make an “unless” order for disclosure by the middle of August 2016. However, as is clear from the judgment, the Claimant and the judge both recognized that there was a risk that the envisaged further disclosure might lead to applications to amend the pleadings and to the experts having to reconsider their reports. Therefore, there was a serious prospect that the trial date might have to be vacated in any event. It is clear to me that this was a factor that carried some weight with the judge. Ultimately, however, what persuaded her to make the order in the terms that she did was that she feared that the Defendant would not be able to comply with an order for disclosure by the middle of August for logistical reasons. She said that this might not be the right result, and that it gave rise to the risk of inconsistent results between two cases involving similar facts, that is, this case and another action, Gravesham v Ministry of Defence (a matter to which I shall return).

The judge accepted that the “current plan for disclosure is what is needed and is accurate”. She therefore set a deadline that she had been assured was realistic, despite expressing unease about the scope of the material potentially covered by Public Interest Immunity (“PII”) and the extent of consequential review and potentially time-consuming redaction which might be necessary. She warned the Defendant in no uncertain terms that if it did not comply “it must realise that it is very unlikely to be given any further leeway to do so.”

Laing J’s accession to the Defendant’s application for the extension of time for disclosure to 21 October led inevitably to the vacation of the trial date. Her order envisaged that when the disclosure exercise was complete, the matter would come back before Master McCloud for a CMC, at which no doubt a fresh trial date would be set. The CMC was listed for one hour on 11 November 2016. In consequence of this application, that date has had to be vacated. If I were to accede to the application to extend time, the consequence would be that the CMC will be put off until next year – and there will not necessarily be a direct correlation between the extra time allowed for completion of disclosure and the delay in re-listing the CMC. Realistically, this means that there is no prospect of the trial taking place in 2017.

Despite the order for rolling disclosure, the first list of documents sent to the Claimant’s solicitors with an accompanying CD was sent under cover of a letter dated 13 September 2016. Ms Bowler, the partner with conduct of the matter on behalf of the Claimant, had been chasing the Defendant for disclosure since 4 August. Further disclosures were made under cover of letters dated 12 October and 20 October respectively. In total, 239 documents were disclosed prior to the 21 October deadline, the bulk of them (179) on the final day.

Since the deadline expired, the Defendant has disclosed another 238 documents in four tranches, most recently under cover of a letter dated 18 November which was received by the Claimant’s solicitors on 21 November. That brings the grand total of documents disclosed to 477, approximately half of which were disclosed in the month that has elapsed after the deadline expired. According to Mr Duke-Evans, in October 2016 the Defendant had identified 600 relevant documents in respect of which PII would not be claimed, plus another 40 in respect of which PII may be claimed. He estimates that around 245 documents need to be processed for disclosure by 23 December, plus the 40 which need to be subjected to the PII process by 23 January 2017.

Ms Bowler complains that the documents were provided in random order, with no explanation as to where they have come from, no explanation of the context in which they were prepared, and no explanation of the acronyms/abbreviations used in them. She says that some are duplicates, and that many of them are undated - which as Ms Bowler points out, is singularly unhelpful in a case in which the Defendant’s state of knowledge at particular dates is crucial. There has been no attempt by the Defendant to give even a broad range of dates or details of where the undated documents were found or which department they came from.

How has this unhappy state of affairs come about? Mr Duke-Evans states that the reasons for the Defendant’s non-compliance lies in the “number and sensitivity of further documents found since the last hearing, the technical problems encountered, and the constraints on Subject Matter Expert resources.”

His current evidence does not fit easily with what the Court was told on the previous occasion. For example, he now says that the Defendant issued a formal search instruction to a number of its departments on 13 May 2016 to identify relevant documentation, and that this search resulted in the Defendant locating and obtaining over 5,000 documents of which “just over 600” have been identified as relevant. However, that is the same search instruction of 13 May that was deposed to by Mr Duke-Evans in paragraph 17 of his first witness statement, which generated the 3624 documents.

Mr Duke-Evans does not say when the further documents were located, but there was nothing in his earlier witness statement to indicate that the electronic search was incomplete; and no update was provided before the hearing on 5 July. Nothing was said to Laing J about the prospect of the number of documents generated in consequence of the original DAS search in May 2016 being significantly larger than the figures mentioned in Mr Duke-Evans’ first witness statement. However, it is clear from paragraph 5 of his third witness statement that the 5,000 documents all resulted from the May 2016 search. There is nothing in the evidence to explain how (or when) the extra documents were generated, let alone why they came as a surprise, if indeed they did.

Next, Mr Duke-Evans says that a further search instruction was issued to the Digital Archive System on 9 September 2016 “as potential gaps in the original search were identified following consultation with the Surgeon-General’s Department and a review of the first set of documents.” Logically that means that the balance of the 5,000 documents must have come to light by 9 September. So in early September it must have been clear that the Defendant was going to have to look at significantly more documents than it told the Court it was going to look at on 5 July. Yet nothing was said or done to alert the Claimant’s solicitors, let alone the Court, that this might slow down the process.

I am bound to say that I find it surprising that the further search terms which Mr Duke-Evans identifies, including “Helmand Fever”, “Coxiella Burnetii” and “Q-vax” were not used in the first place, because they are so obviously likely to throw up potentially relevant documents. It suggests to me that the original electronic search was not carried out as carefully or conscientiously as it should have been. This search yielded another 1900 documents, and 47 more were identified following further enquiries with the Surgeon-General’s Department.

What Mr Duke-Evans does not explain is why it took two months of the three and a half months allowed by Laing J for completion of the disclosure exercise, to identify those potential gaps and issue that further search instruction, or why steps were not taken to roll out the disclosure of the relevant documents among those that had already been identified at the time of the application to Laing J. until at or around the time that the further search had been initiated.

In any event, Mr Duke-Evans states in his most recent witness statement that by October, (by which I take it he means the beginning of October) all 600 relevant documents from these searches had been identified after a relevance review undertaken by a legal team consisting of a panel of six counsel. Despite the fact that the relevant documents had been identified at that stage, they have not all been disclosed – apparently because the task of scrutinising them for the purpose of redaction of sensitive information has not been completed. However, Mr Duke-Evans states in paragraph 22 of his second witness statement that even after this stage has been completed, the preparation of documents for disclosure after redactions have been agreed and signed off is another substantial and time-consuming task.

Mr Duke-Evans also introduces in his evidence for the very first time the concept of the SMEs (rather than the lawyers) looking at the documents to redact irrelevant information and not just information that is sensitive. He says that the SMEs bear a heavy responsibility and the task is time-consuming. They undertake the work in addition to their daily work commitments. All of that was known last time the Defendant sought the indulgence of the Court of a lengthy extension of time for compliance with an order to which, it must not be forgotten, it had consented, and in respect of which it had only belatedly taken steps to comply.

Mr Duke-Evans refers to technical difficulties that were experienced in uploading the documents and in accessing the files, particularly the larger ones, once they had been uploaded. He explains that the e-disclosure provider’s system was inoperable at the end of September 2016 for approximately a week, leading to the Defendant arranging for its legal team to review the remaining documents in person. Despite these difficulties, the latest witness statement indicates that the review of these documents has now been carried out and around 10 have been considered relevant. It seems clear to me that whilst the Defendant cannot be blamed for technical difficulties holding up the process, those problems were by no means the major contributory factor in the delay.

According to Mr Duke-Evans, there are around 245 documents still to be disclosed, plus 40 which have been identified as potentially attracting a claim for PII. However, he now tells the Court that the Defendant is pursuing further lines of enquiry. One search has been triggered by the discovery from a particular document in the disclosure dated September 2011, that the phrase “Helmand Fever” had been replaced by the phrase “Sepsis of unknown origin”. Mr Duke-Evans does not tell the Court on what date that discovery was made. Nor does he explain how it can be that the Defendant (especially the Surgeon General’s Department) was unaware of its own terminology for “Helmand Fever” which had been in use since at least late 2011, with the consequence that nothing was done to search that terminology until after someone, presumably someone in the legal team, spotted that phrase in the document.

Mr Duke-Evans also says that the DJEP was informed on 16 November 2016 that a periodic update had been carried out of the MOD’s digital archive system which had resulted in the identification of a further 3500 documents to be reviewed. He does not say when the periodic update took place, or who gave that information to the DJEP. Nor does he explain why it was that inquiries were not made about the regularity of updates to the system in the first place.

Mr Duke-Evans also refers to a search of the Defence Science and Technology Laboratory (“DSTL”) database which has returned “a very high number of hits” and to a search of the TNT archive which could elicit further relevant documents from the Communicable Diseases Working Group. The potential gaps in disclosure in this regard were identified, he says, in consequence of consultations with Defence Intelligence (DI) and the Surgeon General’s Department. Mr Duke-Evans explains that the DJEP became aware that there might be relevant documents on the DSTL database that were not also held by the Surgeon-General in consequence of finding a reference to a specific Q-Fever report in a DI document from the second DAS search (in September). What I do not understand, and what is not explained, is why it is that the DJEP operated on assumptions, and did not ask the Surgeon-General’s Department if there were any other archives or databases that might contain relevant documentation that that Department did not have.

Mr Duke-Evans has made it clear that the timeframe that he proposes does not include the outcome of those further searches that the Defendant is pursuing. This raises the spectre of further disclosure of an unknown quantity of documents which may be relevant taking place at some unknown future stage.

The upshot is that Mr Duke-Evans says that disclosure, but only the disclosure envisaged at the time of the July 2016 Order, can be completed by 23 December for non-PII documents and by 23 January 2017 for those which might attract a claim for PII, to take account of the Christmas holidays and Ministerial availability. He states that these deadlines are “as short as [the Defendant] believes can be practically achieved.” He also describes the proposed new deadline as “realistic”. That is precisely what he said last time. The Claimant’s legal team has no confidence in those statements and I am afraid that I share their concerns.

Mr Duke-Evans has repeatedly assured the Court that the Defendant has made every effort to meet its disclosure obligations in this claim. However, the order was not an order to use best endeavours. It was made in the expectation that the Defendant would concentrate its resources on full compliance and do that which Mr Duke-Evans had assured the Court it could realistically expect it to do, given the processes that had to be undertaken which were expressly known to the Defendant and factored into the proposed timetable. I do not accept that the delay was due to circumstances beyond the Defendant’s control, save for the technical issues. Had those technical issues led to a short delay in meeting the deadline and had all the documents been disclosed by now, the Court would be facing a very different situation to the one which presents itself before me.

Mr Heppinstall submitted that this is not a case of deliberate flouting of a court order, which of course I accept. He relies on the fact that the Defendant has processed far more documents than it envisaged it was going to have to process before the deadline, that SME resources are scarce and hard to come by, and that there has been an effort to comply. Mr Heppinstall assured me that the Defendant is not seeking to be granted a privileged status by reason of being a public body, and he submitted that it has put in as many resources as possible, as is demonstrated by Mr Duke-Evans’ latest witness statement. He further submitted that the Defendant in this case was faced with unique factors generated by matters of National Security which necessarily slowed down the process.

However, only a very small proportion of the outstanding documents have been identified as potentially giving rise to PII claims. Despite Mr Heppinstall’s assurance that all efforts have been made to process these as expeditiously as possible, and making all reasonable allowances for what can and cannot be explained in open court, I still fail to understand why, in the light of Mr Duke-Evans’ first witness statement, it would take until the end of January for those 40 documents to be processed and put before the Minister for a decision, or why this cannot be done on a rolled-out basis. The failure to disclose the balance of the documents seems to be entirely resource-driven, and that is not and never has been a sufficient excuse.

The burden is on the Defendant to persuade the Court that this is an appropriate case in which to grant the extension of time for compliance. In dealing with this application I must, of course, bear in mind the overriding objective. In the present context the factors listed in CPR 1.2(d)(e) and(f) are of particular importance. The Court must endeavour to ensure that cases are dealt with expeditiously and fairly; it must allot to a case an appropriate share of the court’s resources, whilst taking into account the need to allot resources to other cases; and it must seek to enforce compliance with rules, practice directions and orders. An “Unless Order” is an order of last resort and the nature of the Court’s indulgence to the Defendant in the present case was underlined by Laing J’s warning that if the Defendant did not comply it was very unlikely to be given any further leeway to do so.

The starting-point, as Mr Heppinstall conceded, is that there has been a substantial and serious breach of an “Unless Order” made against the background of what was accepted before Laing J to be the “highly regrettable” failure by the Defendant to comply with its disclosure obligations for over a year, without any real excuse. The previous breach was classed by Laing J as serious, significant and long-standing and she regarded the explanation for it as inadequate. She was reluctantly persuaded to give the Defendant a further 3½ months for compliance. As at the time of the hearing of the application there still has not been full compliance and the default cannot be described as “trivial”. The effect of acceding to the application would be to grant the Defendant another 3 months and even then the Court could not be confident that it would comply.

I have already indicated that I am unimpressed by the litany of excuses put forward for non-compliance, apart from the failures of technology which appear to have played only a minor role in the delay. This is not a case, in my judgment, in which the volume of documentation generated by the searches could not have been foreseen and in which the delay has been caused by matters beyond the Defendant’s control. I am not persuaded that the Defendant went about the searches in a sufficiently thorough manner to begin with and I am highly sceptical as to whether Laing J was presented with a realistic timetable on the basis of what was known at the time, though I make it clear that I am not criticising Mr Duke-Evans, who was reliant on what he was being told by other people.

The pressure of other work and demands on the time of staff, including SMEs, is also an insufficient excuse, since those factors were known at the time when the original estimate was given and were built into the supposedly “realistic” timetable put before Laing J. If a team of six counsel was insufficient to carry out the filtering exercise in time, the Defendant could and should have instructed more. I am not persuaded that the time and effort involved in educating new team members would outweigh the efficiencies to be gained by bringing them on board if further human resources became necessary.

I turn, therefore, to the third factor in Denton. The failures of the Defendant in this case have already undermined the conduct of the litigation by causing the trial date to be vacated, and now they have caused the CMC to be postponed until 2017 with the likelihood that a trial would not take place until 2018, five years after the claim form was issued and four years after the issues crystallised.

The Claimant is suffering from the depressive disorder to which Laing J alluded in paragraph 29 of her judgment, and his CFS has a poor prognosis. He faces the prospect of having the claim hanging over him for at least another year, for reasons which are not his fault. On the face of it the claim stands a real prospect of success; the disclosure, if and insofar as it relates to the state of the Defendant’s knowledge, may well support it. It is said, on the other hand, that the Defendant has a good arguable defence which is supported by the evidence of an eminent expert in the field of Tropical Medicine. Quantum is estimated to be in the order of £6-8 million; but if the order is enforced, the effect will be that judgment is entered for liability only and there is nothing to preclude the Defendant from challenging quantum.

Mr Heppinstall relied, though not to any significant extent, on the existence of other Q Fever cases raising similar issues, including Graveston v MOD. In that case the timetable for disclosure has been extended by consent, and endorsed by Master Roberts, so as to provide for standard disclosure to be given in respect of documents that do not attract PII by 23 December 2016 and in respect of those documents that are likely to be the subject of an application for PII immunity by 4pm on 23 January 2017 – the same dates that the Defendant seeks to be substituted in the Unless Order. However, in that case, the Defendant was not in breach of any court order and I do not regard it as particularly significant to the exercise of my discretion that the Defendant may well have to complete the same disclosure exercise in respect of other claims of a similar nature, come what may.

Nor am I particularly impressed by the point that there is a risk of inconsistent judgments. The risk that was taken in not making sufficient effort to comply with the Unless Order was that judgment on liability would be entered with the result that the merits cannot be fully aired; but nobody could describe this as a claim which is of little or no merit. At the end of the day, Unless Orders should mean what they say. The Defendant knew the risk. Even though this was not a case of a deliberate flouting of a court order it is not an appropriate case in which to grant the Defendant any further indulgence. I therefore refuse the application, with the consequence that judgment will be entered on liability with damages to be assessed. There will need to be provision in the order for further directions in respect of the trial on quantum, and I will consider any further proposals that counsel make in that regard.