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

Fecha: 11-Dic-2024

Was there a good reason for the default?

Was there a good reason for the default?

70.

In his judgment, Mr Coppel was critical of the steps taken by the Claimants to explain the process of disclosure before the date of his judgment (see the passage quoted by me at paragraph [61] above).

71.

I have also commented above that at the heart of the matter was that the Claimants did not put before the Court at the time of the hearing before Mr Coppel the evidence now produced which might have suggested that the relationship between the Claimants and Boson was not as close as he found it to be.

72.

It is also of significance that on the evidence of Mr Taylor referred to at paragraph 55above, the Claimants put information before the Court at the time of the CMC which had not been confirmed by the sort of elementary inquiries of Boson which might have been expected: that information was not corrected when the matter later came before Mr Coppel – hence his conclusion which I have cited at paragraph 61 above.

73.

Further it seems to me that the following passage from Mr Bowsher’s skeleton argument is significant:

47.

It should also be noted that:

One of Santé’s main arguments before and during the June 2024 Hearing as to why it should not be ordered to search and give disclosure of the Boson/MP Bio Documents was because Santé had offered to make voluntary requests of documents or categories of documents from Boson and MP Bio [APP/247-248] §39-46 (and the possibility of such voluntary requests being an alternative to disclosure was relied upon repeatedly in Santé’s oral submissions at the June 2024 Hearing).

It would have been highly improper for Santé to have asked the Court to treat such voluntary requests as a reasonable alternative to disclosure without informing the Court (and the SoS) that the contractual assistance clauses had expired and that they had no ongoing commercial relationship with MP Bio and Boson. (Footnote: ⁸) These matters, both individually and taken together, would have been of great importance as they would have meant that the offer by Santé to make voluntary requests was not a meaningful offer.

74.

In my judgment it is relevant that before Mr Coppel the Claimants were submitting that voluntary disclosure was likely to be forthcoming from Boson, and now rely upon the refusal by Boson to provide documents as being a good reason for their breach.

75.

In the circumstances, I do not accept that the Claimants have established that there was a good reason for the breach. An alternative way of expressing my conclusion is that the Claimants have not established a reason for the breach which does not involve an attempt to persuade this Court that full effect should not be given to Mr Coppel’s decision.