The Ministry of Defence has been denied an extension to submit trial documents after the High Court refused it ‘any further indulgence’. The Honourable Mrs Justice Andrews said she could see no reason to grant the ministry relief from sanctions after it missed a deadline last month for disclosure of specified documents.
Royal Marine Philip Eaglesham brought proceedings against the department after becoming ill with what is known as Q fever in October 2010 when he was travelling back to the UK after service in Afghanistan. He alleges the MoD failed in its duty of care in how he was treated.
In July, Mrs Justice Elizabeth Laing agreed to put back a trial date but directed that all documents be submitted by 21 October.
In the event, the defendant had not complied by this week’s hearing, and sought a further extension until mid-January to disclose all relevant documents.
In total, 239 documents were disclosed prior to the deadline, the bulk of them (179) on the final day. Since the deadline expired, the MoD has disclosed another 238 documents in four tranches. MoD lawyers said around 295 more documents need to be processed by the proposed January date.
Claimant lawyers complained that the documents submitted were provided in random order, with no explanation where they had come from, no explanation of the context and the no explanation of the acronyms and abbreviations used.
The MoD said its non-compliance lay in the ‘number and sensitivity’ of further documents found since the July hearing, technical problems encountered with the computer system and constraints on expert resources.
In Eaglesham v Ministry of Defence, Andrews said there was nothing in the evidence to explain how or when extra documents were generated, and she suggested the original electronic search for relevant material was ‘not carried out as carefully or conscientiously as it should have been’.
She noted that Eaglesham faced the prospect of the claim hanging over him for another year and said she doubted if a trial date could be found in 2017 if an extension was granted. Quantum in the case is estimated at between £6m and £8m.
Andrews said the failure to disclose the balance of the document seemed entirely ‘resource-driven’, and that was not a sufficient excuse for non-compliance. ‘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,’ said the judge.
‘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.’
Andrews refused the MoD’s application, with the consequence that judgment would be entered on liability with damages to be assessed.