England and Wales High Court (Technology and Construction Court) Decisions

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Cite as: [2008] EWHC 1994 (TCC)

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		Neutral Citation Number: [2008] EWHC 1994 (TCC)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

St. Dunstan's House

25th July 2008

B e f o r e :

MR. JUSTICE AKENHEAD
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	E GROUP LIMITED	Claimant
	- and -
	BAY BAKER	Defendant

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MR. THROWER appeared on behalf of the Claimants.
THE DEFENDANT did not appear and was not represented.
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HTML VERSION OF JUDGMENT
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MR. JUSTICE AKENHEAD:

This case has procedurally, to some extent, had a troubled history. I am not going to go into the facts alleged in the case by the Claimant or the Defendant. The Claim however relates to a software contract and the Claimant seeks to recover some £687,000 paid to Ms Baker and damages. There are three orders sought, of which the first relating to non-disclosure, is the most pressing.

Mr. Justice Ramsey, following a number of other orders made against the Defendant, ordered on 16^th May 2008 that in relation to disclosure the Defendant, Bay Baker, do by 4.00 p.m. on Friday, 23^rd May file and serve on the Claimant's solicitors a witness statement dealing with each item on the Claimant's "wish list", exhibited at pages 1-3 of JB1 of the witness statement of John Banks dated 9^th May 2008, stating whether such documents ever existed in hard or soft copy, and if they are not available for inspection what has happened to such documents. If they were available for inspection the Defendant was in a witness statement to confirm the means by which inspection could be given, such inspection to be given by not later than 28^th May 2008.

Ms Baker responded to that order with a document which is dated 23^rd May 2008 and bears the claim number and title of this claim. I have to say that, at face value, although it is signed apparently by her on that date, it does not begin to comply with the order. The five page document is headed as follows: "List of documents the Claimant believes should be included in the standard disclosure list, in whatever form, documents relating to the relationship and the Claimant and Defendant, including all…" and so it goes on. It has a legend at the top which is said to be: "WB whiteboard, HC hardcopy, SC soft copy, NA not applicable, DTC delivered to claimant".

Some of the classes of documents do not have any classification attached to them; it is not clear what "not applicable" means, it is not clear what soft or hard copy means, it is not clear what whiteboard means, and in simple terms I am satisfied that she has not properly complied with the order made against her in the order made by Mr. Justice Ramsey on 6^th May. It would be very easy for Ms Baker to comply with the order by saying simply whether the documents existed in hard or soft copy, and, if they are unavailable, what has happened to such documents. She has not particularly identified whether the documents are available for inspection, she has not indicated what has happened to such documents, and it is clear that she has not complied in substance with the order.

It would therefore follow that it is time in this case for a very clear signal to be made to Ms Baker that she must comply with the orders of the court. She does not appear to have done so. She has sent an e-mail to the court, which I have read carefully, which is headed "Skeleton Argument on behalf of the Defendant/ Counter Claimant"; doing the best I can in seeking to understand what she said, what she is really complaining about here is alleged deficiencies in the Claimant's disclosure.

She has made no application, that I can discern, and it cannot be an answer to a failure to have complied with a court order for a Defendant to say, or to allege, that the other party has not complied with a court order. The key thing here is whether the Defendant has complied and, as I have indicated, I am satisfied that she has not complied with the order.

Given the fact that there is a trial coming up, listed in October 2008, and to have any conceivable chance that that trial date can be kept it is critical that disclosure obligations are complied with by Ms Baker. I will, of course, listen to any application she seeks to make with regard to any deficiencies in the Claimant's disclosure, but she has got to make the application in a comprehensible form so that it can be responded to by the Claimant and I can rule on it if any such application is made. This is an appropriate case for an unless order to be made . In those circumstances, I will make the order, as I have already indicated, to the Claimant, his solicitors and counsel, who are in court.

I should say that Ms Baker has felt unable to attend today to argue her case orally. She indicated yesterday that she could not afford the train fare, or any other system of getting to London. An offer was made by the Claimant to pay for her to come to London, together with some attendance money. She has not reacted to that. I took steps of my own initiative to see whether she was ready, willing and able to take part in this hearing by telephone. She was e-mailed inviting her to phone in at 9.55 a.m. She has not done so. Attempts have been made to contact her from the phone here and only an answer phone has been reached. All attempts have been made to contact her and she has not taken any further part in this application. There is nothing intrinsically or obviously wrong with the application made by the Claimant and I have no hesitation in allowing the application in the terms that I have already indicated.

There were three parts of the application. The first application I have granted, but making it a requirement that she complies with Mr. Justice Ramsey's order within 14 days, failing which her Defence and Counterclaim will be struck out and judgment will be entered against her with damages to be assessed.

On the second part of the application, which required an order for disclosure of documents which are said to be with Ms Baker's accountant, I have not made an order and that application can be renewed, but I have given a broad indication that it is not an acceptable excuse to withhold disclosure that the disclosing party's documents are with his or her accountant. There may be other reasons, such as relevance, or privilege, or matters of that sort which might justify withholding, but the fact that they are currently with one's accountant is not an answer; I have invited the Claimant's solicitors to pass that on to Ms Baker in a letter to accompany the order that will be made.

So far as the third order is concerned, that involved the reduction of money paid into court by the Claimant pursuant to an undertaking given last year to this court in support of an application for an injunction. That amount was £147,500, which was paid in in about April 2007. It seems to me here that what has happened is that the Defendant has not paid various costs orders made against her, including the costs of today, totalling just over £25,000. She has indicated she has no assets. Simply, she says she cannot pay. That may be right, it may not be and I make no finding about that. But it seems to me that it would be unjust, in the circumstances, to leave the Claimant at least temporarily out of pocket with regard to those costs.

Therefore, to reflect the costs burden which the Claimant has in terms of not being paid the costs outstanding to it on orders against the Defendant, I have approved the reduction in the amount from £147,500 by the total amount of the orders for costs made against Miss Baker to date, including today. That, I understand from her skeleton argument lodged with the court late yesterday, is not objected to.

I have also ordered that the Defendant should pay the costs of today, which I have assessed at £5,000 on the basis of the bill totalling £5,055. It seems to me that on an ordinary basis costs should be paid on an indemnity basis here to reflect the fact that this application has arisen only because the Defendant has not complied with an order of this court, and that is not acceptable.

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