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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Medical Supplies And Services International Ltd vAcies Engineering Ltd & Anor [2014] EWHC 1032 (QB) (07 April 2014) URL: https://www.bailii.org/ew/cases/EWHC/QB/2014/1032.html Cite as: [2014] EWHC 1032 (QB) |
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QUEEN'S BENCH DIVISION
LEEDS DISTRICT REGISTRY
MERCANTILE COURT
Oxford Row Leeds LS1 3BG |
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B e f o r e :
sitting as a Judge of the High Court in Leeds
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Claimant |
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- and - |
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(1) ACIES ENGINEERING LIMITED (2) PHILIP JOHN GOSTLING |
Defendants |
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Andrew Clark (instructed by Turner & Wall LLP) for the Defendants
Hearing dates: 2nd and 7th April 2014
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Crown Copyright ©
Judge Behrens:
1 Introduction
1. An application dated 12th March 2014 by the Claimant to set aside the default costs certificate that was issued by the court on the ground that there was no basis for an order that the Claimant pay the Defendants' costs.
2. An application dated 17th March 2014 by the Defendants for a declaration that the claim has been struck out as a result of breach of the "unless" order. In the alternative for an order that the claim form is struck pursuant to CPR 3.4(2)(c) on the ground that there has been non compliance with a number of orders in the proceedings including an unless order.
3. An application dated 28th March 2014 by the Claimant for relief from sanctions on the ground that the Claimant is not in breach of any order and that it would be disproportionate and not in the interests of justice to strike out the claim or to impose any sanction on the Claimant.
1. If the claim has not been struck out for breach of an "unless" order then the Defendants were not entitled to the default costs certificate and it must be set aside under CPR 47.12(1).
2. The position is the same even if the court now strikes out the claim under CPR 3.2(4)(c). The Defendants were not entitled to a default cost certificate at the time they filed the request under CPR 47.9(4).
3. If the claim has been struck out but the court grants the Claimant relief from sanctions so as to enable the action to continue it would be appropriate to set aside the default costs certificate because the Defendants may not obtain an order for costs at the trial. Such an order would result in a different order for costs from cases 1 and 2 above.
2 The nature of the claim.
3 Procedural History
The order of 25th March 2013
The order of 17th June 2013
In the event of the Claimant's default in compliance with paragraph 1 or paragraph 2 of this order the claim shall be struck out and the Defendant shall be entitled to the costs of the substantive proceedings, such costs to be agreed if possible but failing agreement to [be] the subject of detailed assessment on the standard basis.
The Order of 24th July 2013
The Order of 22nd August 2013
2. The documents set out in the schedule hereto being some of the documents in the Claimant's list of documents dated 25th June 2013 shall be produced for inspection by the Claimant to:
(a) [Mr Gostling]
(b) [Mr Robinson]
Subject in the case of Mr Robinson to him having signed, filed, and served an undertaking not to use or disclose to any person other than [Mr Gostling], [the Defendants'] legal advisers and any expert instructed by the Defendants any information contained within the documents set out in the schedule. Such undertaking shall be accompanied by an acknowledgment by the said Mr Robinson that breach thereof is a contempt of court in respect of which the court has power to order a term of imprisonment for up to 2 years and such undertaking and acknowledgment shall be accompanied by a certificate from a solicitor that the nature and consequences of the undertaking have been explained and understood by Mr Robinson.
3. The inspection permitted by paragraph [2] shall take place at the Defendants' solicitors office in the presence of the Defendants' solicitor or a responsible employee of the solicitors and [Mr Gostling] and Mr Robinson shall not be entitled to take a copy of the documents produced and remove it or the original documents from the solicitors, nor shall [Mr Gostling] or Mr Robinson be permitted to remove from the solicitors' office any notes made by either of them relating to information in the said documents, and any notes taken shall be retained in the solicitors' file.
4. The time for the production of the documents pursuant to paragraph 2 above and any further inspection requested shall be extended to 27th September 2013.
The Defendants' disclosure
The letter of 13th September 2013
We refer to both the order made on 22nd August 2013 and our client's further list of documents to which we trust you may now have had an opportunity to give consideration. We are mindful that the order provides for inspection of documents to take place by Friday 27 September 2013 at the latest. We look forward to hearing from you with details of those documents of which your client requires inspection. In the interim we refer to our letter dated 26 June 2013 of which we attach a further copy and look forward to receiving copies of the documents detailed within it. For the avoidance of doubt we confirm that arrangements are in hand for Mr Robinson to provide a signed written undertaking which together with the required certificate from a solicitor will be filed with the Court and copies served on you.
it was my understanding on receipt of the request for " copies " of the Claimant's documents that it was the Defendants' solicitors [in] disregard of the restricted disclosure provisions and seeking to invite me to make a mistake and provide copies of documents subject to the restricted inspection conditions.
If that really was Mr Webber's understanding it is to my mind remarkable that he did not choose to answer the letter in any way.
Mr Robinson's undertaking
The Defendants' witness statements
Mr Webber's complaint over disclosure
1. In paragraph 8 he commented on the places where searches were carried out.
2. In paragraph 9 he alleged that there is no specific disclosure regarding manufacture of the components parts for the assembly of particular component parts which make up the thermostatic control unit. Equally, there is no disclosure regarding documentation used by third parties.
3. In paragraph 11 he alleged that Item 584 does not specify the nature of the technical drawings referred to in the delivery note
4. In paragraph 12 he alleged that the Defendants have failed to disclose documents relating to the pressure, calibration temperature or other measurements when used to build the thermostatic control valves.
5. He exhibited a witness statement from Mr Spence who had carried out a comparison and contrast between the Claimant's and the Defendant's vaporiser. He concluded that the two were identical. In his view identical technical information regarding the dimension of the component parts has been used to manufacture both sets of components.
1. Mr Bower draws attention to the large number of documents listed by the Defendants in their 4 lists. He points out that the number of technical documents disclosed by the Defendants is greater than those disclosed by the Claimant. He denies that the search or the disclosure was inadequate.
2. In paragraphs 6 9 of his witness statement Mr Robinson asserts that documents relating to the thermostatic control unit have been disclosed. He refers to documents 414, 495, 403 and 408.
3. In paragraph 10 Mr Robinson states that the technical drawing has been disclosed at item 406.
4. In paragraph 11 Mr Robinson deals with the testing by R AMedical
. He points out that they were instructed from the outset and has referred to documents 295 and 296 being test sheets dating back to October 2012 and at 649 an invoice dated 1st November 2012.
5. In paragraph 12 he deals with Mr Spence's evidence. He asserts that the Defendants vaporiser was derived from reverse engineering.
Assertion that the claim is struck out
4 Was there an "unless" order in force.
5 Breach
6 Effect of breach
7 Relief from sanctions
(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need
(a) for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, practice directions and orders.
(2) An application for relief must be supported by evidence.
8 Conclusion