Not so great at defence – MoD loses case after disclosure failure

Bowler: case will help others

Bowler: case will help others

The Ministry of Defence (MoD) has had its defence to a multi-million pound personal injury claim struck out by the High Court for failing to comply with an unless order over its disclosure obligations.

The judge said that “unless orders should mean what they say”.

It means that Royal Marine Phillip Eaglesham has won his lengthy legal battle after suffering a life-changing disability from contracting Q Fever while serving in Afghanistan. Damages are estimated at between £6m and £8m.

The MoJ had sought an extension to the deadline for disclosure. Though technically not an application for relief from sanctions – because the MoD made its application the day before the deadline – Mrs Justice Andrews treated it as one, meaning the Denton test applied.

The MoD had already had an extra 15 months to provide all the necessary documents on a rolling basis, having been granted previous extensions, and the trial date had been lost as a result.

It said the delay was caused by the number and sensitivity of further documents found since the previous hearing, technical problems, and the constraints on ‘subject matter expert’ (SME) resources to review documents for redactions.

Andrews J said she was “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”.

She continued: “This is not a case, in my judgment, in which the volume of documentation generated by the searches could not have been foreseen and in which the delay has been caused by matters beyond the defendant’s control. I am not persuaded that the defendant went about the searches in a sufficiently thorough manner to begin with…

“The pressure of other work and demands on the time of staff, including SMEs, is also an insufficient excuse, since those factors were known at the time when the original estimate was given and were built into the supposedly ‘realistic’ timetable put before Laing J [who made the unless order].

“If a team of six counsel was insufficient to carry out the filtering exercise in time, the defendant could and should have instructed more. I am not persuaded that the time and effort involved in educating new team members would outweigh the efficiencies to be gained by bringing them on board if further human resources became necessary.”

The judge said the MoD’s failure had “already undermined the conduct of the litigation by causing the trial date to be vacated, and now they have caused the CMC to be postponed until 2017 with the likelihood that a trial would not take place until 2018, five years after the claim form was issued and four years after the issues crystallised”.

This was in the context of an unwell claimant who faced the prospect of having the claim hanging over him for at least another year, for reasons which were not his fault.

Andrews J concluded: “The risk that was taken in not making sufficient effort to comply with the unless order was that judgment on liability would be entered with the result that the merits cannot be fully aired; but nobody could describe this as a claim which is of little or no merit.

“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.

“I therefore refuse the application, with the consequence that judgment will be entered on liability with damages to be assessed.”

Mr Eaglesham’s solicitors, Coffin Mew, said he contracted Q Fever while on a routine tour of South Afghanistan in 2010. He initially became ill with flu-like symptoms, but went on to develop Q Fever Chronic Fatigue Syndrome – an illness which has left him profoundly disabled.

He said the MoD should have known Q Fever was present in Southern Afghanistan and should have provided him with specific antibiotics that were being given to the US and French military at the time.

Coffin Mew partner Sue Bowler said: “Phillip’s case has been pursued so that he can pay for the specialist care, equipment and housing that he will need for the rest of his life – and to help other military personnel who contracted the same illness in Afghanistan and are also pursuing claims.”

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