Unless Orders Compliance: Eaglesham v MoD Case

This case from a decade ago involved an application for an extension of time in order to allow for time to comply with an unless order for relief from sanctions. Mr Eaglesham was an Army Corporal who contracted Q Fever, a relatively rare bacterial infection, while serving on a military exercise is Salisbury Plain in 2008. Whilst fundamentally, this is a claim for negligence against the MoD for failing to provide adequate protective measures, warnings or treatment, the case also demonstrates the importance of adhering to Court rules. This case features important commentary regarding Unless Orders issued within the litigation process.

What is an unless order?

An Unless Order is a strict procedural court order stating that “unless” a party complies with a specified requirement by a specified deadline, a particular consequence may arise, for example, having the claim struck out. The purpose of Unless Orders is to secure procedural compliance and ensure the conduct of proceedings is not unreasonably delayed or frustrated.

Unless orders compliance: the Eaglesham case

The Unless Order in this case required the defendant to provide disclosure by 21 October 2016. If it failed to do so, the defence would be struck out and judgment entered in favour of the claimant. Despite the deadline and consequences being clear, the defendant struggled to meet this deadline for disclosure, stating that it did not have enough time, and on the 20^th October 2016, one day before the deadline, it filed an application notice seeking more time.

However, by the time of the hearing on 23 November 2016, the terms of the Unless Order had still not been complied with. The court therefore highlighted the importance of adhering to disclosure obligations. The Court had underscored that compliance with Unless Orders must be exact and non-compliance will result in automatic sanctions.

The MoD applied for relief from sanctions after failing to comply in time. The Court applied the test in Denton v TH White, specifically (1) assessing the seriousness/significance of the breach; (2) analysing why the default occurred; and (3) evaluating all of the circumstances of the case.

The Court was surprised that certain search terms identified in the application for an extension of time had not been used initially, as it was apparent to them that this would have been crucial. This indicated to the judge that the original electronic search had not been conducted carefully or conscientiously enough. The Court found the breach was not trivial, the reasons insufficiently justified and the integrity of the Court orders required upholding.

The Court determined therefore that the parties must approach disclosure with diligence and thoroughness. Moreover, the judgment emphasised that “unless orders” should be taken more seriously and that they should mean what they say. The Court was cautious to ensure that the defendant did not attempt to abuse the process. The automatic nature of the sanction upon non-compliance was noted, meaning that the consequences of default would take effect without further court intervention. It was noted that this reinforces the principle that parties must comply with court orders to avoid severe consequences.

This case is also important to serve as a reminder that the court is unlikely to be sympathetic to arguments for extending time for disclosure, even when it is clear that disclosure takes a lot of resources, and previous extensions have already been granted.