The UK Ministry of Defence ("MoD") lost a high-profile
case after failing, first, to comply with a trial judge's
disclosure order and failing to meet a deadline for compliance with
the court's "Unless Order" which warned that
non-compliance would result in MoD having its defences struck out
and judgment entered for the claimant. The day before the
Unless Order's 21 October 2016 compliance deadline, the MoD
applied for an extension of time and relief from the sanctions, but
The Honourable Mrs. Justice Andrews of the High Court of England
and Wales saw no reason to ignore or delay the sanctions.
The landmark case, Eaglesham v The Ministry of Defence, was
brought five years ago by former Royal Marine commando corporal
Philip Eaglesham, who alleged that the MoD had failed in its duty
of care in treatment when he became ill with what is known as
"Q Fever" (Coxiella Burnetti) as he was traveling back to
the UK after service in Afghanistan. Eaglesham contracted the
chronic condition two days before he was due to return home from a
tour of duty in 2010. He first experienced flu-like symptoms
which escalated into muscular weakness, and Eaglesham now requires
a wheelchair. The quantum of his claim is estimated to be in
the order of £6 – £8 million — soon payable
by the MoD because of the disclosure failures. In addition,
Eaglesham's victory could pave the way for Q Fever claims by
other MoD veterans.
The "Unless Order" followed a series of disclosure
deadlines missed by the MoD, and compelled the MoD to meet
disclosure obligations originally ordered for September 2015.
The volumes involved were not large at all — the Unless Order
required the MoD produce approximately 600 previously identified
documents on a rolling basis by 21 October 2016. In total,
239 documents were produced by the deadline (179 on the last
day). Before the Court denied the application for an
extension on 24 November 2016, the MoD had disclosed a grand total
of 477 documents and promised the rest in January 2017,
effectively delaying trial and adjudication until 2018 according to
For US practitioners, it is interesting that the Court chastised
the MoD for delivering what documents they disclosed
"unhelpfully", citing Eaglesham's counsel complaints
"[T]he documents were provided in random order, with no
explanation as to where they have come from, no explanation of the
context in which they were prepared, and no explanation of the
acronyms/abbreviations used in them...There has been no attempt by
the Defendant to give even a broad range of dates or details of
where the undated documents were found or which department they
Mrs. Justice Andrews refrained from castigating individuals at
the MoD in her decision, and one can only imagine the difficulty of
moving a multi-part identification, search, review, PII and
security sensitivity analysis through the MoD's bureaucracy at
a time of military austerity. As Chris Dale aptly put it:
"Those of you with nice shiny information systems, centrally
co-ordinated and governed, might spare a thought for those in
government departments required to give disclosure from a set of
legacy databases constructed over many years on an ad hoc basis,
with genuine requirements of secrecy and no capital budgets to fix
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In the recent decision in Joyce Whitfield v Revenue & Customs Commissioners  UKFTT 685 (TC) the Tribunal considered that inflexible and disproportionate behaviour by a party's legal representative...
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