Description
The applicant appealed following the striking out of his claim for breach of an Unless Order. The CA held that the judge was not wrong in failing to go through each of the factors set out in r.3.9 and ticking them off and assigning them to one side of the balance or the other. Too rigorous an approach to the manner in which they had to express their reasoning was undesirable in principle and unnecessary in practice. A trial judge had to be aware of rule 3.9 and of the particular factors said on either side to be relevant, according the evidence and the circumstances of the particular case and conduct an appropriate review and balancing exercise.
Where the Claimant had chosen to waive legal privilege in a summary judgment application it would be appropriate to order him to give specific disclosure of all the relevant material under the principle of collateral waiver.
