Order was Disproportionate

Keith v CPM Field Marketing Ltd (TLR 29 August CA)

The claimant complained that the defendants had failed to comply with an order for disclosure and obtained an ‘unless’ order. The defendants had difficulty in complying with the order but their application for an extension of the time to comply with it was refused and the defence struck out. On appeal it was held that the judge had failed to deal specifically with the various hurdles set out in CPR rule 3.9 and he had failed to have regard to the overriding objective. Much of the blame could be attributed to the defendants’ solicitors who had failed adequately to explain precisely why the clients were unable to comply with the order. The penalty of striking out the defence was wholly disproportionate, particularly in proceedings where no trial date had been fixed.