The Unless Order and the Late Report
You are counsel for the plaintiff, Ms H, in a High Court personal injuries action against a hotel. On 8 February 2024, the court made an 'unless order' requiring the plaintiff to serve the expert report of Mr J, a consultant orthopaedic surgeon, by 4pm on 12 April 2024, failing which the claim would be struck out. The report was not served until 13 April 2024 at 10am. The defendant applies to strike out the claim. The plaintiff's solicitor, Ms K, tells you the report was delayed because Mr J was on holidays and the secretary 'forgot to send it.' The defendant says it is prejudiced because the trial is listed for 15 July 2024 and its own expert now has less time. The plaintiff has a strong liability case (CCTV shows a wet floor with no sign) and the report is important on quantum. Ms K asks you to 'argue that the delay was trivial and that the defendant can still get its expert report in time.' The defendant's counsel says the unless order was clear and the plaintiff has no excuse. The judge asks you why the order was not complied with. What do you do?
1. What is the legal test for relief from an unless order, and what are the strengths and weaknesses of the plaintiff's position?
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The court has a discretion to relieve from the sanction in an unless order, but the order is peremptory and non-compliance is serious. The court will consider (a) the reason for the default, (b) whether the default is excusable, (c) the prejudice to the defendant and whether it can be compensated in costs, (d) the effect on the trial date, and (e) the interests of justice. The plaintiff's explanation is weak: the expert was on holidays and the secretary forgot. That is not a good excuse. But the delay was only one day, the report is now served, and the defendant may still be able to obtain its own report before 15 July 2024. The plaintiff has a strong liability case on the CCTV evidence. The court may grant relief on terms, such as payment of the costs of the application and any costs thrown away, and a timetable for the defendant's expert. The plaintiff should offer those terms voluntarily. The weakness is the weak explanation and the risk that the court will treat the order as having to be obeyed.
2. The judge asks you directly: 'Why was my order not complied with?' What do you say?
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You must answer truthfully. You should say: 'The report was served on 13 April 2024, one day after the deadline. The delay arose because the expert was on leave and the report was not sent in time. The plaintiff apologises to the court. The delay was not intentional.' You must not say that the order was complied with, and you must not invent an excuse. You should not blame the defendant. Candour is required even if it harms the application. After answering, you can make the legal argument that the delay was short, the report is now available, and the defendant can be compensated in costs. The judge is more likely to grant relief to a candid party than to one who tries to hide the default. You should also correct any suggestion by Ms K that the delay was trivial without acknowledging the breach.
3. Can you argue that the defendant has suffered no prejudice if you have not seen the defendant's expert report?
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You can argue that the defendant has not identified any specific prejudice beyond the need to instruct its expert promptly, but you must not assert that the defendant can definitely be ready. You should say: 'The defendant has not shown that it cannot obtain a report before the trial date. If the court is concerned, the plaintiff will agree to a timetable for service of the defendant's report and will not object to an adjournment of the trial if that is necessary.' That is a candid position. You must not overstate the lack of prejudice. If the defendant's counsel says its expert cannot be ready, you must address that evidence rather than ignore it. You can offer to pay the costs of any application or wasted work. The court will balance the prejudice. You should not mislead the court about the state of the defendant's preparations.