I am spared having to do a detailed analysis of the judgment in Vitrition UK Ltd v Caine & Ors [2022] EWHC 51 (Comm) (13 January 2022)  because, as so often, Gordon Exall has distilled the main points in a Civil Litigation Brief article called Judge refuses to grant relief from sanctions for defendants who had buried their heads in the sand“.

As Gordon Exall says in opening his article, the judgment has some important observations on the nature, scope and duty of disclosure. I will simply point to the main ones, leaving you to read Gordon Exall’s article. The context, incidentally, is that a 15 day trial had been fixed. There was more at stake than technical rule-breaking and competence.

The starting point is an analysis of the principles in Denton (Denton v T H White [2014])  which require the court to consider whether the breach is serious and/or significant, to look at why it occurred, and to “consider all the circumstances” including the need for litigation to be conducted efficiently and at proportionate cost. As part of the “all the circumstances” limb, the judge referred specifically to the reasons for the default and the fact that full disclosure had apparently not been given even by the time of the hearing.

The defendants, the judge said, “had simply failed to engage and take obvious advice that they needed to [and] appear to have buried their heads in the sand”.

In considering the scope of the duty to disclose, the practice direction makes it clear that “control is the key concept which includes both present and past possession, rights to possession and rights to inspect or take copies”.

The disclosure exercise was not as “mammoth” as the defendants asserted, and “what was required, though broken down into different issues, was fairly clear”.

The disclosure order was not “wide and general” but “contained carefully constructed issues which the defendant had agreed”. As an aside, this is surely the point at which a party assesses the scope of disclosure, where all the known circumstances, including arguments as to proportionality, feed into the order. If disclosure is potentially “mammoth”, then there is an opportunity at the order stage to trim it down by agreement or order.

The judge did not consider – in this case – that anything turned on the delay in making the application itself. Various factors – a death, a wedding, Christmas – were seen as adequate to justify any delay.

The defendants tried to argue that the claimants’ disclosure was also defective. The judge gave short shrift to this, comparing the relatively trivial breaches by the claimants with the much more significant delays by the defendants. In general, if you are reduced to excusing yourself by reference to the other party’s conduct, you are scraping the barrel. Even if the claimants’ disclosure had been just as bad, it was the defendants, not the claimants, who were the subject of the unless order and of the application. As the judge put it “I do not consider that the disclosure sought against the Claimant has much weight in considering relief from the sanctions imposed against the Defendants.”

The judge attached considerable weight to the fact that the disclosure was still not complete even by the date of the application. As part of his “all the circumstances” analysis, he referred to earlier delays by the defendants.

Having regard to that, to the “drip-feed of disclosure”, and the “lack of clarity of the defendants’ evidence and instructions” the judge considered (as Denton required him to) whether the sanction remained “proportionate in the light of all the circumstances”. He concluded that it did.

There are no important new points in this case, just a reiteration of the general idea that disclosure is a serious business. It seems a bit wasteful to spend all that time and money fighting about disclosure and then go straight to judgment on liability without the planned 15 day trial of (presumably significant) issues.

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