Nicholas John Clwyd Griffith and Another (Respondents/Petitioners) Maurice Saleh Gourgey and Others (Appellants/(Respondents to the Petition)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lady Justice Sharp |
| Judgment Date | 05 July 2017 |
| Neutral Citation | [2017] EWCA Civ 926 |
| Date | 05 July 2017 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2015/1672 |
[2017] EWCA Civ 926
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
COMPANIES COURT
THE HONOURABLE MR JUSTICE SIMON
Royal Courts of Justice
Strand, London, WC2A 2LL
The Right Honourable Lord Justice Longmore
and
The Right Honourable Lady Justice Sharp Dbe
Case No: A3/2015/1672
Mr Daniel Lightman QC (who did not appear below) (instructed by Olephant) for the Appellants
Mr Christopher R Parker QC & Mr Oliver Phillips (instructed by Blake Morgan LLP) for the Petitioners
Hearing dates: 27 th June 2017
Approved Judgment
This appeal is about the consequences of failure to respond adequately to requests for information made in respect of defences to three unfair prejudice petitions launched as long ago as 12 th March 2013. The respondents to those petitions ("the appellants") appeal against orders of Simon J (1) declaring that the appellants' points of defence had been struck out since 4 p.m. on 22 nd April 2014 and remain struck out and (2) dismissing the appellants' applications for relief from an order of Mr S. Monty QC of 13 th November 2014.
The relevant chronology is as follows:-
1) The initial Part 18 Requests were made by the petitioners on 3 rd September 2013. The appellants initially proposed that a response would be provided by 22 nd October 2013, without suggesting that any objection was taken to the content of the Part 18 Requests. The petitioners agreed that timeframe on 17 th September 2013.
2) The appellants then objected to the content of the Part 18 Requests on 4 th October 2013, over a month after they had been served, on the grounds that they were "neither reasonable nor proportionate". The petitioners therefore applied on 15 th November 2013 for an order requiring the Part 18 Requests to be answered.
3) In the event, that application, together with an application by the appellants seeking to strike out parts of the pleadings, was disposed of by a consent order made by Mr Hollington QC (sitting as a High Court Judge) on 27 th February 2014. Paragraph 5 of that order provided that the appellants "do provide a full response to [the Part 18 Requests] by 4 p.m. on 21 st March 2014".
4) The appellants did not provide any response (full or otherwise) to the Part 18 Requests by 4 p.m. on 21 st March 2014. Rose J therefore made an unless order at a CMC on 4 th April 2014, requiring them to file and serve their responses to the Part 18 Requests by 4 p.m. on 22 nd April 2014, failing which the amended points of defence ("the defences") would be struck out. That order has never been appealed.
5) The appellants served a purported response to the Part 18 Requests (the "First Response") shortly before the deadline of 4 p.m. on 22 nd April 2014.
6) The petitioners then issued an application dated 27 th May 2014 seeking directions to be given for the future conduct of the proceedings on the footing that the defences stood struck out.
7) The appellants issued a cross-application dated 5 th June 2014, seeking relief from sanctions.
8) Following a hearing of those two applications on 13 th November 2014, Mr Monty QC (also sitting as a High Court Judge) determined that the First Response was deficient in various respects, and that the reason given by the appellants for the deficiencies (that the nature and extent of the Part 18 Requests was excessive) was one which not having been taken before Mr Hollington QC or Rose J, it was not open to them to take. Nevertheless he was persuaded, in his discretion, to grant relief from the strike-out sanction on strict conditions, including that the appellants would by 4 th December 2014 serve a full and complete response to the Part 18 Requests; he so ordered on 13 th November 2014 ("the Monty Order").
9) The appellants served their purported full and complete response on 4 th December 2014 ("the Second Response").
10) The petitioners took issue with the adequacy of the Second Response, and applied on 29 th January 2015 for relief on the footing that the defences remained struck out.
11) On 4 th February 2015 the appellants applied for a second time for relief from sanctions.
12) Following a hearing of those applications on 23 rd and 24 th March 2015, Simon J gave judgment on 23 rd April 2015, finding that the Second response was not, even now, a full and complete Response to the Part 18 Requests, that in consequence the conditions laid down in the Monty Order for the grant of relief from sanction had not been met, and that the defences accordingly remained struck out as from 22 nd April 2014. He additionally refused the appellants' further application for relief from sanctions, on the basis that there had been no material change of circumstances since the Monty Order which remained in force.
The terms of Mr Monty QC's order are important and relevantly provided:-
"UPON the respondents [whom I have called the appellants] having been further required by paragraphs 3 and 4 of the order of the Honourable Mrs Justice Rose dated 4 th April 2014 (the "Unless Order") to file and serve their response to the RFI [request for further information] by 4 p.m. on 22 nd April 2014, failing which the points of defence would be struck out.
AND UPON the respondents having filed and served by 4 p.m. on 22 nd April 2014 a response to the RFI that was plainly incomplete and insufficient, with the result that the amended points of defence stand struck out pursuant to paragraph 4 of the Unless Order (subject to the relief application).
AND UPON the Court considering that it is appropriate to grant relief from the sanction applied by paragraph 4 of the Unless Order strictly on the terms set out in this Order, and that in the absence of truly extraordinary circumstances the respondents should not be permitted to participate in the future conduct of these petitions if those terms are not strictly adhered to.
AND UPON READING the third witness statement of Paul Matthew Caldicott dated 27 th May 2014, the witness statement of Jonathan Hill dated 5 th June 2014, and the fourth witness statement of Paul Matthew Caldicott dated 18 th July 2014.
AND UPON HEARING leading counsel for the appellants and counsel for the respondents
IT IS ORDERED that:
…
4. If the respondents do:
(a) by 4 p.m. on 27 th November 2014 pay the costs ordered to be paid by paragraph 10 of this order in full in cleared funds by transfer into the client account of Blake Morgan LLP at Barclays Bank plc, Oxford City Branch, 54 Cornmarket Street, Oxford OX1 3HB …
(b) By 4 p.m. on 4 th December 2014 file with the Court and serve on the petitioners a full and complete response to (1) the RFI and (2) any request made under paragraph 1 of this order to which paragraph 3 of this order applies,
the amended points of defence shall be reinstated.
5. For the avoidance of all doubt, the response to be provided by the respondents under paragraph 4 (h) of this order shall:
(a) be verified with a statement of truth in accordance with Part 22 of the Civil Procedure Rules 1998, and
(b) give a full and complete response to each and every request made in the RFIs and to any request made under paragraph 1 of this order to which...
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