Date: Feb 18, 2026

Unless Orders in E-Disclosure: “Instruct” Means Instruct (Not Guarantee the Outcome) and Strike-Out Requires Considering a Further Unless Order

1. Introduction

Midland Premier Properties Ltd & Anor v Doal & Ors concerned two appeals arising from substantial commercial litigation in which Sanman Property Management Limited (“Sanman”) alleged that it lent 2020 Living Limited £1.5m on terms giving it (i) high contractual interest and (ii) 50% of the profit on the development/sale of “The Square” in Birmingham. Sanman claimed that 2020 Living transferred its interest to Taylor Grange 2 Limited for no consideration to avoid accounting to Sanman, and that Mr Samuel Ginda, Taylor Grange 2, and TGDM One Limited induced breach of contract and joined in an unlawful means conspiracy.

The appeals were brought by the second, third, fourth and sixth defendants (2020 Living, Mr Ginda, Taylor Grange 2 and TGDM) after the trial judge (i) held they had breached an unless order and refused relief, striking out their defences and debarring them from defending, and (ii) proceeded to determine liability at a trial in which they could not defend.

The core procedural issue was the proper construction of an “unless” regime imposed to deal with alleged deletion/non-preservation in relation to forensic imaging and e-disclosure steps (performed by an external provider, Consilio), and whether strike-out was proportionate.

2. Summary of the Judgment

The Court of Appeal allowed the first appeal and held the defendants had not breached the unless order as construed.
The Court further held that, even if the unless order had not taken effect, the judge’s alternative decision to strike out the defences under CPR 3.4 was disproportionate, principally because the judge failed to consider the lesser alternative of a further unless order.
As a consequence, the Court set aside the debarring/strike-out orders and the subsequent trial-related orders insofar as they affected the appellants, and remitted the matter for re-trial before a different judge.
The second appeal (about whether counterfactual scenarios should be determined at liability or quantum) fell away because a re-trial was required.

3. Analysis

3.1 Precedents Cited

The judgment is a synthesis of older “illusory compliance” authorities and modern CPR-era approaches to construction and sanctions, with special emphasis on: (i) strict construction of orders with automatic/penal consequences, and (ii) distinguishing “compliance” from “relief from sanctions”.

Compliance with unless orders: good faith, “illusory” lists, and “plainly incomplete” responses

Reiss v Woolf [1952] 2 QB 557: A party does not comply by serving “any document with writing on it”; it must be a genuine document that can fairly be called what the order requires. The Court of Appeal treated this as an early articulation of a “not illusory” concept.
Realkredit Danmark A/S v York Montague Ltd [1998] WL 104421 (“Realkredit”): An unless order requiring a “List of Documents” was complied with where a list (served in good faith) was not illusory, even if alleged gaps existed. The Court of Appeal in the present case treated Realkredit as part of the historical landscape, but not a licence to rewrite the order.
QPS Consultants Ltd v Kruger Tissue (Manufacturing) Ltd [1999] BLR 366 (“QPS”): Emphasised that modern courts have wide discretionary tools and there is no justification for artificially narrow construction in some contexts. Critically, however, QPS also recognises that an order is not breached merely because some answers are insufficient; the key question can be whether answers could reasonably have been thought complete and sufficient (often relevant in “further information” disputes).
Morgans v Needham [1999] 10 WLUK 837: Treated an unclear/imprecise unless order for discovery as not breached; illustrates that unclear orders should not easily trigger draconian consequences.
Lakatamia Shipping Co Ltd v Su [2014] EWHC 275 (Comm) (“Lakatamia”): Noted Realkredit’s “illusory list” point in the disclosure context; also a reminder that trivial breach may attract relief.
Smailes v McNally [2014] EWCA Civ 1299: A critical omission (scripts) meant there was no reasonable search and hence clear non-compliance with an unless order. Importantly, Lewison LJ explained that absence of bad faith does not necessarily mean compliance; what is “reasonable” is for the court.
Gravity Highway v Maritime Maisie [2020] EWHC 1697 (Comm), [2021] 2 All ER (Comm) 340 (“Gravity Highway”): Butcher J articulated an “objective” approach for unless orders requiring further information: whether the response is “plainly incomplete or insufficient”, i.e. it could not reasonably be thought complete and sufficient. The trial judge adopted this test when assessing the served schedule, but the Court of Appeal held he asked the wrong question because he misconstrued what the order required the defendants to do.

Construction of orders with serious/penal consequences

Pan Petroleum AJE Ltd v Yinka Folawiyo Petroleum Co Ltd [2017] EWCA Civ 1525 (“Pan Petroleum”): Construction of an order is the sole question; terms are given natural meaning in context; injunctions are restrictively construed due to penal consequences. The Court of Appeal treated unless orders analogously—given automatic strike-out consequences, they too must be construed restrictively. Pan Petroleum drew on JSC BTA Bank v Ablyazov (No 10) [2015] UKSC 64, [2015] 1 WLR 4754 and Federal Bank of the Middle East v Hadkinson [2000] 1 WLR 1695.
Gumbrell v YPG Pembroke Studios Ltd [2026] EWCA Civ 44 (“Gumbrell”): Unless orders must specify in “clearest and most precise language” what must be done to avoid automatic dismissal/strike-out, citing Abalian v Innous [1936] 2 All ER 834 and endorsed in modern practice (also referencing Devoy-Williams v Hugh Cartwright & Amin [2018] EWHC 2815 (Ch)). This supported the Court’s insistence that the sanction can only bite where the required act (properly construed) was not done.

Appeals, new points, and evaluative discretion

Singh v Dass [2019] EWCA Civ 360 and Notting Hill Finance Ltd v Sheikh [2019] EWCA Civ 1337, [2019] 4 WLR 146: The Court accepted the appellants could advance a new “pure law” construction point on appeal without new evidence or unfair prejudice.
In re Sprintroom [2019] EWCA Civ 932, [2019] 2 BCLC 617: Appellate restraint on evaluative decisions—intervention requires identifiable flaw (gap in logic, inconsistency, failure to consider material factor). This framed the strike-out proportionality review.
Biguzzi v Rank Leisure Ltd [1999] EWCA Civ 1972, [1999] 1 WLR 1926: Strike-out is draconian; courts should consider alternatives that achieve justice without striking out. This was central to the Court’s criticism that the judge failed to consider a further unless order.

3.2 Legal Reasoning

(A) The key construction holding: an “instruct” obligation is not an “ensure outcome” obligation

The decisive point was the meaning of paragraph 4(b) of the 3 July 2024 order and its linkage to paragraph 2 of the Unless Order. The trial judge treated compliance as requiring the defendants to serve “a complete and sufficient Schedule”. The Court of Appeal disagreed: paragraph 4(b) required the defendants to instruct Consilio to produce a schedule with specified fields, and to provide the claimant with the schedule Consilio produced. It did not impose a duty to guarantee that Consilio’s output was complete or that imaging of all accounts had been correctly performed.

This approach flows from the Court’s broader synthesis of principle (at [45]): unless orders are restrictively construed; they must be clear; and if an order stipulates that X happens unless Y is done, the sanction follows only if it is clear that Y (properly construed) was not done. Here, the relevant “Y” was giving certain instructions and forwarding the provider’s schedule—not warranting its completeness.

(B) Paragraphs 1 and 3 of the Unless Order: compliance satisfied by giving the required instructions/serving the report

Sanman argued that because “Forensic Images” were defined as images taken “in accordance with paragraph 2”, any deficiencies in imaging meant the defendants could not have complied with the instruction/report obligations in paragraphs 3 and 5. The Court rejected that: paragraphs 1 and 3 of the Unless Order were framed in terms of instructing Consilio and serving the report produced. The defendants did so.

The Court also noted that paragraph 2 of the 3 July order (the imaging step itself) did not have an unless sanction attached—reinforcing that the unless mechanism chosen by the parties/judge targeted “instruction/reporting” steps, not successful completion of imaging in every respect.

(C) Strike-out as a last resort: failure to consider a further unless order was the “identifiable flaw”

Even though the Court found no unless breach, it addressed the judge’s alternative strike-out reasoning. Applying In re Sprintroom, the Court identified a material omission: the judge did not consider a further unless order as an intermediate step. Given that (on the evidence) imaging had by then been completed, the defendants said disclosure could still be completed without losing the trial date, and the judge’s interpretation of the scope of paragraph 2 (including Skinner/Coen accounts) was found to be wrong, the Court held that immediate strike-out/debarring was disproportionate.

The Court aligned this with Biguzzi v Rank Leisure Ltd: striking out a defence is draconian and requires strong justification, especially where a lesser order could secure compliance while preserving the trial process.

3.3 Impact

Drafting and enforcement of e-disclosure unless orders: The decision underscores that where obligations are expressed as duties to “instruct” an e-disclosure provider and to pass on its work product, the court will be slow to reinterpret them as outcome-guarantees. Parties seeking automatic strike-out for deficient third-party outputs must draft the unless terms in clear “result” language (and expect hard-fought proportionality arguments).
Separation of compliance and relief: The case reinforces that courts must first identify what the order required (compliance), and only then consider relief from sanctions. A perceived “deficiency” is not a breach if it is not what the order required the party to ensure.
Proportionality discipline in strike-out applications: Where disclosure failures threaten trial timetables, the court should expressly consider whether a further unless order (or other targeted case-management step) would meet the justice of the case before striking out.
Practical litigation management: The judgment will likely encourage more precise “step-by-step” sanctioning (e.g., unless orders tied to delivery of specified disclosure by date) rather than global strike-out based on complex e-disclosure projects involving external providers.

4. Complex Concepts Simplified

Unless order: A court order stating that unless a party does a specified act by a deadline, a specified sanction will automatically take effect (here, strike-out/debarring). Because the consequence is automatic and severe, it must be drafted and construed with precision.
Debarred from defending / strike-out: “Striking out” removes a defence (or claim). “Debarring” prevents participation in defending. In practice, it can lead to judgment without a contested trial. Courts describe it as draconian and typically a last resort.
Relief from sanctions: If an unless sanction has taken effect (because the order was breached), the defaulting party may apply for the sanction to be lifted. But relief only matters if there was a breach in the first place; the primary question is always: what did the order require?
Forensic imaging / e-disclosure provider: “Forensic imaging” creates a copy of digital data (including potentially recoverable deleted items). An “e-disclosure provider” (here, Consilio) is a specialist contractor engaged to collect, process, restore, and report on electronic data for disclosure purposes.
DRD / custodians / extended disclosure: A “disclosure review document” identifies where relevant documents may be held and who holds them (“custodians”). “Extended disclosure” is a structured disclosure regime often used in complex cases, requiring defined search parameters and transparency over methodology.

5. Conclusion

The Court of Appeal’s central contribution is a disciplined approach to unless order construction in the modern e-disclosure context: where an unless order requires a party to instruct a third-party provider and to transmit the provider’s deliverable, the court will not convert that into an obligation to guarantee the deliverable’s completeness unless the order clearly says so.

Equally significant is the reaffirmation that strike-out/debarring is a remedy of last resort. Even amid serious disclosure concerns, a judge must actively consider whether a further unless order (or other narrower measure) would secure compliance and fairness without extinguishing a party’s right to defend.

The outcome—setting aside debarring, undoing the resulting trial determinations, and ordering a re-trial before a different judge—illustrates the high systemic cost of disproportionate procedural sanctions and the premium placed on precise drafting, careful construction, and calibrated enforcement.