Thread by @JasonBraier

🧵Minnoch v Interserve FM: Another unless order appeal - this is an HHJ Tayler special, with a run down of the case law & a paragraph neatly summarising the principles. Worth a prime place in your unless order case law folder.
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2/ This case involved a multiple claimant claim brought by 37 claimants re the withholding of pay for days on strike. At a PH, EJ Burns (unusually) ordered sequential disclosure with the claimants going first, & a schedule of loss for each claimant. The wording is important:

3/ The Cs failed to comply & the R applied for strike out or an unless order. EJ Burns made the unless order that very same day. It cross-referred to the 1st order & also (highly unusually) asked the Rs to report to the ET the names of those struck out for not complying.

4/ On the deadline day, C's sols sent a spreadsheet of losses showing rates, pay lost to strike & strike pay provided by their union. Disclosure was made of documents in the Cs' possession, & a list was sent. It was noted they couldn't find contracts from their previous employer.

5/ The following day, the R wrote to the ET to say that all claims were struck out without further order. C responded to say that the question of material compliance was a matter for the EJ, not the R, & the EJ then sent a notice of strike out with written reasons.

6/ In those reasons, the EJ asserted it was plain from the 1st CMO that each C would serve a separate schedule, complaining the spreadsheet didn't lay out a proper SoL, & didn't set out sums received from the R for the relevant periods, nor was disclosure complete.

7/ Although the Cs wrote to the ET to ask for reconsideration and/or relief from sanction, that request went unanswered and for some reason C's solicitors didn't pursue it. However, they did appeal the strike out decision.

8/ The appeal was asserted a failure to consider whether there was material non-compliance, failure to adopt a qualitative test and facilitative approach under which ambiguity is resolved in the favour of the party required to comply, & taking irrelevant factors into account.

9/ In setting out the law, the EAT made clear the care that should be taken in making unless orders due to their draconian effect.

10/ HHJ Tayler emphasised the need for ETs to construe ambiguities in unless orders in an expansive way favourable to the party required to comply, & the need to apply a qualitative rather than quantitative approach (thus material compliance rather than substantial is the test)

11/ In terms of process, HHJ Tayler noted that sometimes it will be obvious on the papers that there has been non-compliance (such as when nothing has been done), but that where there is doubt the non-complying party should be given the chance to comment, & possibly a hearing.

12/ When dealing with applications for relief from sanction, the EAT cited the well-known portion in Thind v Salvesen on what's relevant to consider, but that unless orders should not too readily be set aside (this is strictly obiter in Minnoch but a useful reminder anyway)

13/ In a valiant effort to save trees from being destroyed for the sake of authorities bundles, in para 33 HHJ Tayler summarises 16 key points from the authorities on unless orders:

14/ Applying the principles to the present case, the EAT disagreed with EJ Burns' construction of his own order. The CMO was ambiguous on whether a single or multiple Schedules were required. It also criticised the EJ for giving form precedence over substance re the contents.

15/ As regards the disclosure exercise, the EAT criticised EJ Burns for failing to assess which documents in the Cs' possession or control they'd failed to disclose & not treating the Cs as individuals when reviewing material non-compliance. EJ Burns had taken a punitive approach

16/ The appeal was thus allowed, & the question of whether there was material compliance was remitted to be determined by a different EJ (unsurprisingly).