Civil litigation: Warning shot fired over full and frank disclosure

The Court docket of Attraction judgment MEX Group Worldwide Ltd v Ford & Ors [2024] EWCA Civ 959 might be of curiosity each to these making use of for ex parte orders (as a first-rate instance of how to not do issues) and people searching for to discharge them (in view of the court docket’s warnings round how these arguments needs to be introduced). This text seems to be particularly on the court docket’s warning to these searching for to discharge ex parte orders on grounds of fabric non-disclosure.

Context

The claimant sought to overturn the discharge of a worldwide freezing order obtained on an ex parte foundation in help of international proceedings pursuant to part 25 of the Civil Jurisdiction and Judgments Act 1982. In its judgment, the enchantment court docket dismissed the enchantment and located that (amongst different issues) the primary occasion decide was proper to discharge the freezing order and never renew it due to the claimant’s materials failure to present full and frank disclosure on the ex parte listening to.

Importantly, the court docket’s judgment goes to some size to criticise the events’ method to the query of fabric non-disclosure. The choice goes so far as to counsel that, if the events don’t restrict materials non-disclosure assaults to clear-cut allegations, the court docket could decline to think about the matter in any respect.

Warning

Lord Justice Males cracked the judicial whip early on: ‘On this case we have now been ready to separate the wheat from the chaff, however I might counsel a special method for the long run. In future, if the court docket is introduced with an extended purchasing record of alleged failures, with no try made to determine the comparatively few factors that actually matter, it ought to merely decline to think about the difficulty in any respect.’

Lord Justice Coulson adopted up with a barrage of criticism of the events’ presentation of disclosure points at first occasion and on enchantment, and put ahead his personal strategies as to the way it needs to be approached. In abstract:

He was strongly crucial that coping with full and frank disclosure could have taken up extra time than different ‘substantive’ points, complaining that his is neither ‘smart’ nor ‘proportionate’.
He said that ‘high quality not amount needs to be the watchword’ and warned of a ‘actual danger that the most effective factors change into buried in an avalanche of trivia’.
He caught with the mountaineering metaphor afterward, complaining that the primary occasion decide confronted a ‘blizzard’ of non-disclosure allegations whereas commending him for doing ‘his finest’ to take care of them.
He recommended it’s nearly all the time the case that arguments referring to materials non-disclosure will ‘stand or fall on not more than a handful of alleged failures’.
He suggested that ‘these getting ready this form of assault sooner or later ought to be certain that they focus their efforts on alleged failures of disclosure that are clear-cut and clearly vital’.

This isn’t the primary time that the court docket (and even Lord Justice Males) has recommended that litigants should take a focused method to arguments about materials non-disclosure. In Nationwide Financial institution Belief v Yurov and Others [2016] EWHC 1991 (Comm), Mr Justice Males (as he then was) required the defendants to determine from an extended record their six finest factors and (in his personal phrases) intentionally sought to encourage ‘restraint and a way of proportion’. On any view, issues have now gone one step additional with the suggestion that the court docket ought to merely decline to think about the difficulty in any respect if it finds it’s dissatisfied with the way by which the applying is introduced.

Evaluation

One may take the view that the Court docket of Attraction’s risk is extra a mirrored image of its common frustration on the particular details of this case than a critical suggestion or steerage to the courts under. The case was advanced (referring to issues already the topic of long-running litigation within the British Virgin Islands) and the 2 events filed prolonged skeleton arguments for the enchantment (collectively exceeding 250 pages). To compound issues, the enchantment court docket was compelled to take care of a last-minute utility to adduce new proof, and (as is usually the case in contested fraud claims and when freezing orders are at stake) the events had been preventing tooth and nail. Lord Justice Coulson described the dynamic as ‘trench warfare of probably the most attritional sort’.

Authorized practitioners may take into account it harsh for the court docket to make these kinds of criticisms and calls for, notably when:

There was disagreement between the decrease court docket and the enchantment court docket as to what constituted non-disclosure and what was sufficiently materials to justify the discharge of the freezing order.
There was a reputable argument to make that, in high-stakes litigation the place one celebration is allegedly in breach of full and frank duties, a excessive variety of cases of non-disclosures could (of itself) be a related consider figuring out materiality.
Figuring out ‘clear-cut and clearly vital’ arguments is never simple within the midst of hard-fought litigation (notably in view of the 2 factors raised above) and much simpler to evaluate in hindsight.

Whether or not or not the Court docket of Attraction’s risk might be acted upon and what it can take to get to that time stays to be seen. For now, all practitioners considering (or going through) arguments of fabric non-disclosure would do properly to:

1. Train warning and be selective when figuring out examples of alleged failures within the duties of full and frank disclosure for the court docket to find out.

2. If wishing to determine and depend upon quite a few examples, discover a manner of presenting the data that ensures the court docket understands simply which of them are thought of most elementary.

3. Keep in mind that this judgment might current a helpful line of assault for unworthy candidates going through allegations of fabric non-disclosure.

Edward Irwin is vice-president of the Junior London Solicitors Litigation Affiliation and a senior affiliate at Peters & Peters. Jonathan Tickner is a associate at Peters & Peters