Case No: HT-05-288
Neutral Citation Number: [2006] EWHC 257 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 21st February 2006
Before :
HIS HONOUR JUDGE PETER COULSON QC
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Between :
	FIRST PROPERTY GROWTH PARTNERSHIP LLP	Claimant	
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	BANCO DI ROMA SPA
(SUED AS BANCO DI ROMA SPA)	Defendant	
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Mr Jonathan Small (instructed by Cawdery Kaye Fireman & Taylor) for the Claimant
Mr David Holland (instructed by Osborne Clarke) for the Defendant
Hearing date: 16 February 2006
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JUDGMENT

His Honour Judge Peter Coulson QC:

1.	This is a terminal dilapidations claim.  On 3 February 2006, the Defendant made an application for specific disclosure. This was principally concerned with documents relating to the remedial works currently being completed by the Claimant. The costs of these works form the basis of the sum claimed, which is in excess of £500,000. The application itself was unremarkable, but the manner of its pursuit was not. Points arose as to the proper way to make interlocutory applications and the need for notification, which often appear to be a cause of dispute in the TCC. As a result of this, and the shortness of the time allowed for the hearing of the application itself, I decided to give the reasons for my decision in writing. 
2.	The Claimant's list of documents was dated and served on 19 January 2006. The Defendant's solicitors wrote both that day, and again the following day, to point out documents which they said they would have expected to see in the list, but which were not there. After an exchange of correspondence, on 23 January 2006, the Defendant's solicitors sent a Schedule of such documents to the Claimant's solicitors. Thereafter there was further communication between the solicitors which made it plain that, at the very least, the Defendant's request for these additional documents was not being ignored. 
3.	On 1 February 2006, the Defendant's solicitors wrote again, making a different complaint. This letter set out in Table form the documents that the Defendant said were missing from the Claimant's list. Most of those were documents which were referred to in the documents that had been disclosed, but which had not themselves featured in the list of documents of 19 January. 
4.	Two days later, on Friday 3 February 2006, the Defendant's solicitors issued an application on paper, without notice to the Claimant's solicitors, seeking disclosure of the documents in the Schedule and the Table, by 4 pm on Monday 6 February, failing which they requested that the whole claim be struck out. The application was supported by a statement from a solicitor, Ms Sarah Carter. The Defendant's solicitors apparently wanted the court to deal with the application immediately it was received on the Friday. 
5.	On my instructions, in the early afternoon of 3 February, my clerk informed the Defendant's solicitors that I would not make any order until the Claimant had been notified of the application and the detail of the Claimant's response was apparent. On being told that, the Defendant's solicitors then took it upon themselves to notify the Claimant's solicitors of the application and to require them to respond to the application by mid-day on Monday 6 February, effectively giving them just over half a working day to respond. The Defendant's solicitors' notification was ambiguous, and it could have been read as indicating that this short response period was a requirement of the court. It was not. 
6.	In the event, the application was opposed by a witness statement from the Claimant's solicitor, Mr Simon Taylor, served on Wednesday, 8 February. His statement was largely taken up with criticisms of the manner in which the Defendant's application had been made. Thereafter, up until the hearing on 16 February, there was further correspondence between the solicitors which included the provision by the Claimant of a significant amount of further documentation, together with answers to the points raised in both the Schedule and the Table. This correspondence culminated in the Claimant's solicitors' letter of 15 February which enclosed a Supplemental Schedule of Documents. The total amount of further documentation provided during this period filled most of a lever arch file, and thus nearly doubled the volume of documentation in the Claimant's original list. 
7.	At the hearing itself, the Defendant sought: 
a) a Witness Statement from the Claimant's Principal, dealing with the outstanding items in the Schedule (1-9, 11, 14-15, 17-18); 
b) a Supplemental List of Documents, in proper form, verified by a Statement.
The Claimant was quite prepared to provide both the Statement and a Supplementary List of Documents properly verified, but, as a result of the history, objected to the court making a formal order in these terms. As I explained to Mr Small, who appeared on behalf of the Claimant, it seemed to me that it was both appropriate and convenient to make an order in the agreed terms. This was particularly so, given the fact that there had been substantial further disclosure of documents following the provision by the Claimant of its original list. However, as I explained, the fact that I made an order in the agreed terms did not colour my approach to the question of costs, which (as is so often the case) was the real matter of debate between the parties. 
8.	It seems to me that the following general principles apply to any interlocutory application made under the CPR: 
a) Unless Orders are usually only appropriate where either: i) there has been a previous history of non-compliance with the orders of the court by the party against whom the Unless Order is sought; or ii) there has been substantial and significant default in respect of a particular order of the court or a specific aspect of the litigation with which the defaulting party has failed to deal.   Unless Orders are not simply imposed as a matter of routine for any failure to comply with an earlier order of the court. 
b) Save in exceptional circumstances, any application to the court for an interlocutory order should be served on the other party or parties, so that they can address the substantive application and make appropriate submissions to the court. Even if the application is being dealt with on paper, the court will not ordinarily make any interlocutory order without knowing the stated position of all parties on the substance of the application. It follows that it is for the party making the application to ensure that copies of the application, and any supporting documentation, have been provided to the other parties, and to notify the court accordingly. It is not for the court to have to make enquiries to see if this basic step has been taken and, if not, to make detailed directions to ensure that it happens. Notification is, and always remains, the responsibility of the applicant.     
c) It is difficult to think of any circumstances where it would be appropriate for a party to seek an Unless Order (which is, after all, the most draconian sanction a court can attach to any interlocutory order) without notifying the party against whom the order is sought. If the reason for the lack of notice is said to be the need for urgency, then the making of an application without notice is entirely counter-productive, because the court will simply require that notification be given after the application has been made, and further time will be lost until the party against whom the order is sought has had an opportunity to deal with the substantive application. 
9.	In the present case, the Defendant's solicitors acted in a manner which was contrary to all three of these general principles. In my judgment it was not appropriate for the Defendant's solicitors to seek an Unless Order in circumstances where, even though there had been a failure to comply with the original order as to disclosure (because the original list was plainly incomplete), the Claimant's solicitors were endeavouring to deal with those deficiencies. Further, it was not appropriate to make the application without notice, so as to leave it to the court to ensure that the Claimant was notified of the application, in order that it could make the appropriate submissions in response. Finally, in my view, it was wholly misconceived for an application for an Unless Order to be made without notice. 
10.	I also consider that the Defendant's solicitors compounded these problems after the application had been made. As I have pointed out, it was the court, not the Defendant's solicitors, who alerted the parties to the fact that no order would be made until the Claimant's response was known. The Defendant's solicitors then sought, unilaterally, to impose a time limit of just over half a working day on the provision of that response. That was, of itself, unreasonable. 
11.	It is of course the right of any party to civil litigation to seek orders from the court if that party considers that the other party or parties are in default and that there is no reasonable prospect of compliance. That is particularly so where, as here, the applicant needs to ensure compliance because it cannot take the next interlocutory step until the earlier order has been complied with. In this case, the Defendant had next to respond to the Scott Schedule, and I quite accept that such response could not have been meaningfully drafted without sight of the Claimant's documents relating to the remedial work: that is why the timetable that I originally ordered set out these steps in this sequence. But an application to the court must only be made if there is no reasonable prospect of compliance by the defaulting party; and it must seek a proportionate order. For the reasons set out above, in the present case there was at least some prospect of compliance. Furthermore, the Unless Order that was sought was not, in my judgment, either proportionate or appropriate. 
12.	Accordingly, I consider that the way in which the Defendant's solicitors dealt with the problem arising out of the Claimant's non-compliance with the original order as to disclosure was disproportionate and inappropriate. It would not, therefore, be fair or just to award the Defendant their costs of the application. 
13.	On the other hand, given the substantial amount of supplementary disclosure provided by the Claimant in the days and weeks after the production of the list on 19 January, it is clear to me that the Claimant's original disclosure was deficient. Whilst the Claimant's solicitors thereafter co-operated to make good such deficiencies, none of that extra work would have been necessary if the original list had been properly and carefully prepared. Parties to litigation in the TCC, where so many of the disputes centre around what the documents say and do not say, must appreciate that the preparation of their list of documents is a very important step in the proceedings. It cannot be undertaken lightly, on the assumption that any gaps or omissions in the documents originally disclosed can be made good at a later date. 
14.	Moreover, in the present case, I consider that, on the evidence, the supplementary disclosure would not have been provided so readily by the Claimant, but for the Defendant's solicitors' application of 3 February and their persistent prompting thereafter. 
15.	For these reasons therefore, despite Mr Small's eloquent submissions to the contrary, it would not be appropriate to award the Defendant their costs of the application either:  that would effectively be to ignore the simple point that the application only arose in the first place because of the Claimant's original default in failing to produce a full and complete list of documents. I should add for completeness that the content of the Claimant's solicitors' letter of late on 15 February makes no difference to my conclusion. 
16.	Accordingly, for the reasons set out above, I consider that it is appropriate to make an order on the substance of the application for specific disclosure in the terms of paragraph 7 above. I make no order as to costs, so as to require each party to bear their own costs of the application.