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

Fecha: 11-Dic-2024

The Defendant’s Strike Out Application

The Defendant’s Strike Out Application

27.

The first application before me is the Defendant’s application to strike out the first and second claims.

28.

This is supported by Mr Kelsey’s Second Witness Statement.

29.

The grounds of the application are summarised in Mr. Bowsher KC’s skeleton argument:

In breach of both the Waksman Order and the Coppel Order, as well as rules of the Court (including their duties to the Court to take reasonable steps to preserve documents as soon as they became aware that they might become party to proceedings), Santé have not collected/preserved documents held by Boson and MP Bio, or undertaken any Model D searches (or any searches at all) of the Boson/MP Bio Documents and have therefore not given extended disclosure of the Boson/MP Bio Documents.

10.

As a result of Santé’s breaches of their disclosure obligations, a fair trial is no longer possible. There is no other remedy available, other than striking out the claims, that will adequately address the extreme unfairness caused by the fact that: (i) Santé has had access to all the documents held by Boson and MP Bio which they consider helpful to their claims (and without which they could not have brought their claims at all); yet (ii) it now appears that potentially adverse documents on which the SoS’ defences in both claims may turn will never be disclosed.

30.

I return below in greater detail to the arguments on both sides as to the application, but first set out the relevant legal principles. As to this there is no real dispute between the parties, but understandably each party places different emphasis on matters set out in the authorities.