The High Court has allowed a plaintiff to appeal out of time and set aside an order striking out her proceedings for failure to comply with a discovery order. The court said it would hear further submissions on possible final orders, including consequences for the plaintiff, on 29 April 2025.
In a judgment delivered on 22 April 2025, Ms Justice Marguerite Bolger considered the plaintiff’s application to extend the time to appeal an order made by the Deputy Master on 10 October 2023. The earlier order struck out the action after the plaintiff failed to make full and proper discovery as required by a High Court order made by consent on 19 July 2021.
The defendant opposed the extension, pointing to the absence of evidence that the plaintiff formed an intention to appeal within the required 10 days and to the lack of a clear explanation for the delay. The judge found that the plaintiff’s senior counsel had applied to lodge an appeal two days after the strike-out order, and accepted that this showed the plaintiff intended to appeal in time. The judgment records that counsel for the defendant did not question the senior counsel’s conduct or that he had acted on the plaintiff’s instructions.
The judge accepted that the explanation for the delay was unclear, but said this did not by itself prevent an extension. She also found the plaintiff’s case for overturning the strike-out order was stronger than merely arguable. The allegations underlying the proceedings were described as extremely serious and related to matters the plaintiff alleges occurred during her minority; the defendant denied them. The judge found no specific evidence of irremediable prejudice to the defendant and concluded that the prejudice to the plaintiff from losing the opportunity to litigate outweighed the prejudice to the defendant from the case continuing.
On the appeal itself, the judge said striking out for discovery failures is a discretionary and drastic remedy, generally requiring wilful default or negligence and consideration of whether the failure and any resulting prejudice can be remedied. She acknowledged the defendant’s frustration with what she described as the plaintiff’s less than urgent and unsatisfactory approach to discovery. However, the plaintiff’s solicitor had since obtained documents required for discovery, and his evidence about difficulties obtaining them had not been challenged.
The judge said the solicitor was confident the discovery order could now be complied with in full. If that confidence proved misplaced, serious consequences could follow. She allowed the appeal and set aside the Deputy Master’s order, but did not make final orders at that hearing.