The Validity of ‘Not Entitled’ Replies to Part 18 Requests: Sheeran & Ors v Chokri & Ors [2020] EWHC 2806 (Ch)

In order to fulfil Part 18 requests, are recipients empowered to reply that requesting parties are ‘not entitled’ to responses?

This issue was recently discussed in the case of Sheeran & Ors v Chokri & Ors [2020] EWHC 2806 (Ch), in respect of a counterclaim for copyright infringement, but the decision is equally applicable to personal injury actions.

On 1 April 2020, the defendants (bringing the counterclaim) served a Part 18 request on the claimants, consisting of 22 questions.

However, the claimants did not reply to the Request, either by acknowledging receipt, objecting, or seeking to extend the 14-day response period which had been sought by the opposing party. There was also no suggestion that the Request had not been received.

By way of application notice and signed statement of truth, the defendants confirmed that they had had no response from the claimants. On 27 April, the court acceded to this application, ordering the claimants to file and serve responses by 15 May.

Without seeking to set aside or vary the Order [on the basis that the Request fell short of CPR 18.1 and Practice Direction (PD) 18.2] and within the allotted timeframe, the claimants provided their response, which read:

‘This is an inappropriate use of CPR Part 18. Requests 1-18 are not confined strictly to matters which are necessary and proportionate for the Defendants to prepare their case, or to understand the case they have to meet, to the avoidance of disproportionate expense. The Defendants have sought to employ CPR Part 18 to compel the Claimants to engage in an analysis of documents provided to the Defendants at their request by way of voluntary disclosure and/or provide evidence in advance of the exchange of witness statements. Further, the Defendants have sought detailed further information relating to [contextual elements of the claim] which the Claimants do not understand from the statements of case to be in contention’.

In short form, this response constituted what is commonly described as a ‘not entitled’ reply.

Unimpressed, the defendants contended that the claimants' response constituted non-compliance with the Order and was neither ‘complete’, nor ‘sufficient’. They therefore applied for an unless order, obliging ‘complete and sufficient’ responses.

At the application hearing, in July, Master Kaye considered pre-CPR authorities of Fearis v Davies [1989] 1 FSR 555 and QPS Consultants Ltd v Kruger Tissue (Manufacturing) Ltd [1999] C.P.L.R. 710, both of which dealt with ‘not entitled’ responses.

Lord Justice Waller’s, in QPS, notably observed (albeit in the context of pre-CPR language and procedure) that:

‘It is clear that where an order for particulars is made it is in breach of that order to respond "not entitled" or to give an answer which suggests that the matter is already sufficiently pleaded or which does not deal in any way with the request …’

The High Court, in the present case, affirmed that this position is still ‘good law’:

‘It is plain … that "not entitled" is not good enough and certainly is not a complete and sufficient answer to the Request. It is a non-answer’.

As a consequence of this ‘self-inflicted wound’ (which could have been remedied by operating the mechanism embedded within the 27 April Order and taking the opportunity to contest that the Request should never been made and was not a ‘proper one’, pursuant to the relevant Rule and PD), the judge found in favour of the defendants that there had been a failure to comply with the Order and thus entitled them to the making of their desired unless order.

Full text judgment can be accessed here.