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Not enough information? How to comply with an order requiring an RFI response: The Gravity Highway v The Maritime Maisie [2020] EWHC 1697 (Comm)


Mr Justice Butcher handed down judgment today in The Gravity Highway and The Maritime Maisie [2020] EWHC 1697 (Comm). The judgment is the first post-CPR authority to address directly the test for whether an order requiring a party to provide further information has been complied with. John Russell QC, Benjamin Coffer and Robert Ward appeared for the Claimants, instructed by Charles Smith at Clyde & Co. Nigel Jacobs QC and Saira Paruk appeared for the Defendants, instructed by Christian Dwyer, Keith Rowbory, James Drummond & Rachel Bernie at Ince Gordon Dadds.

The facts

The two vessels collided in the Korea Strait on 29 December 2013, and both parties brought substantial claims for damages. GH was a newbuild car carrier on sea trials at the time of the collision, and her owners therefore carried out the repairs to GH themselves. Their claim was for the cost of those repairs.

MM interests served a document containing 155 requests for further information concerning the GH claim. After some delay on the part of the GH interests in responding, the Registrar made an unless order requiring GH interests to respond by a specified date, failing which a substantial part of their claim would be struck out.

GH served a document purporting to respond to the requests by the required date, but MM took the view that the response did not adequately address certain of the requests. MM therefore applied for a declaration that the strike-out sanction had come into effect. GH interests maintained that they had complied, but also appealed against the order and applied for relief from sanctions in the alternative.

The Judgment

The primary issue before the Judge was whether GH had complied with the order. Prior to the CPR, the Court of Appeal had held that a party would not be in breach of such an order just because one or more of its responses was found to be in some way inadequate. There would only be a breach if the response was plainly incomplete or insufficient: QPS Consultants Ltd v Kruger Tissue (Manufacturing) Ltd [1999] BLR 366.

The MM interests argued that QPS was no longer good law, because of the change brought about by the introduction of the CPR. In particular, QPS was decided at a time when the Court had a discretion as to whether to give effect to the sanction attached to an unless order. Under the CPR, there is no such discretion: the sanction takes effect automatically upon the occurrence of a material breach of the order: Marcan Shipping (London) Ltd v Kefalas [2007] 1 WLR 1864.

Mr Justice Butcher nevertheless held that QPS continues to govern the question whether there has been a breach of an order requiring further information. He said that the relevant principles were as follows:

(1) “In assessing whether there has been compliance with an unless order for the provision of further information the Court will consider whether the information is plainly incomplete or insufficient given the terms of the order… The further information will be plainly incomplete or insufficient if it could not reasonably be thought to be complete and sufficient.”

(2) “In examining completeness and sufficiency, the Court is not concerned with the truth of the answers or with their logical coherence unless any lack of coherence goes to the completeness or sufficiency of the response.”

(3) “In considering relief from sanction, amongst the other matters which will be taken into account, are the matters which were, in the pre-CPR context of QPS Consultants, regarded as going to the exercise of the discretion as to whether a sanction should be imposed.” Those matters included the number and proportion of inadequate replies; whether any inadequacies were due to deliberate obstructiveness or incompetence; and the importance of the responses to the overall litigation.

Applying that analysis, the Judge concluded that GH interests were not in breach of the Registrar’s order.

The Court also upheld the appeal against the Registrar’s order, and indicated that it would have granted relief from sanctions if necessary. Butcher J considered that the unless order was plainly disproportionate and should not have been made by the Registrar. He applied dicta of the Supreme Court in Summers v Fairclough Homes [2012] UKSC 26 where Lord Clarke said at [49] that “The draconian step of striking a claim out is always a last resort, a fortiori where to do so would deprive the claimant of a substantive right to which the court has held that he was entitled after a fair trial.”