HT-2022-000043 - [2024] EWHC 3180 (TCC)

I have set out at paragraph 33 above paragraph 85 of Ms Hannaford’s skeleton argument. She emphasised the following points:

On my analysis, the central vice of the failure to give disclosure of the Boson documents is that there might be an unfairly one-sided evidential position at trial if Boson witnesses were to be called.

I have the impression that if the Claimants’ representatives had carried out more thorough inquiries earlier it might or would have become apparent that Boson’s willingness to co-operate was strictly limited to disclosure of documents which would support the Claimants’ case.

Thus the breach was either inevitable, or earlier enquiries might have persuaded Mr Coppel to reach a different conclusion. Either way, the present position seems to me to be an unfortunate position to which the Claimants have considerably contributed.

What is to be done?

I accept Ms Hannaford’s submission that on the authorities a strike out of a claim is an extreme remedy only to be deployed if its consequences can be justified.

I do not think that such an extreme remedy is justified in this case at this time.

I canvassed a possible course with the Parties to which, as I understood it, neither party vigorously objected: namely to vary Waksman J.’s order so that the Claimants cannot call evidence from any Boson witnesses except with permission from the Court. This would mean that the Court would be able to assess the position having regard, firstly, to the stage in the proceedings at which such an application is made, and, secondly, as to whether disclosure has been forthcoming from Boson.

It seems to me that this would remove from the proceedings the risk of an unfair trial which I accept presently exists.

Accordingly I shall make an order to that effect.

Although not canvassed with the Parties, I will order, for the avoidance of doubt, that no Boson documents which have not so far been disclosed or are otherwise in the possession or control of the Defendant can be relied upon without agreement or express permission from the Court. If such documents emerge from MP Bio, then it is likely that the Court will find it easy to grant such permission.

Ms Hannaford explains this application made by the Claimants as follows:

Applications for guidance under paragraph 11 of PD 57AD are in my experience unusual.

They must be particularly unusual where neither party can suggest any guidance which might usefully be given.

On my own motion and experience, I cannot suggest any way of conjuring documents from a reluctant Chinese sub-sub-supplier which has not been considered by either Party.

I decline to give guidance, having none to give.

The final matter in which I am asked to give directions relates to the Third Claim in which the Claimants allege that in the course of disclosure in the first and second claims they discovered breaches of the Defendant’s procurement obligations.

The Claimants started separate proceedings in respect of the Third Claim in order to preserve the very strict limitation period applicable to procurement claims.

The parties are now agreed that it makes sense for the Third Claim to be brought together with the existing procurement claim by way of an amendment to the pleadings in the first claim, the original Procurement Claim.

I agree.

It is also now agreed between the parties that to the extent that the first and second claims survive the Defendant’s strike out application (which, as set out above, they do) all three claims should be heard together.

I agree with the parties, not least because I do not see how quantum can realistically be determined without considering all three claims together.

In the event, the argument before me came down to whether the Third Claim should be heard with the first and second claims at the trial presently fixed to be heard in July 2025.

Unfortunately, if the trial cannot be held in July 2025, it will have to be held in June or July 2026, given the other trials already in the Court’s diary.

As I indicated to the parties during the oral hearing, with much reluctance I have concluded that this trial cannot be got ready with fairness to both parties by July 2025.

The timetable starts with consideration of the date for service of a defence to the amended pleading. The difference between the Parties was small: 6 December or 16 December 2024. The significance of that difference was whether a reply could be served before the seasonal holidays.

In my judgment, it would be unjust to require the Defendant to plead to the new claim as early as 6 December 2024.

Even if that date were to be set, the next issue is disclosure.

Mr Bowsher suggested a Defence by 16 December: I have indicated that I accept that that date would be reasonable.

He then suggests the Reply would be served in early January 2025. On the supposition of a 16 December Defence, that is reasonable.

This then leads, on Mr Bowsher’s submissions, to an agreed DRD at the beginning of February 2025. This is probably realistic.

This would then be followed by disclosure at the beginning of June 2025. I think this is a little too pessimistic, but not by a lot. Perhaps mid-May could be achieved.

It might be possible for production of witness statements to be progressed to an extent simultaneously with the disclosure process, but it could not be completed until disclosure had been completed.

Expert reports in their final form would have to follow disclosure and witness statements.

I do not see how this can be achieved in time for a July 2025 trial.

Accordingly, with considerable reluctance, I conclude that the July 2025 trial date must be vacated, to be refixed for June 2026.