LAST REMINDER OF NEW YEAR’S RESOLUTION FOR 2017: WITHOUT NOTICE APPLICATIONS ARE SO, SO, DANGEROUS: THE DUTY OF FULL DISCLOSURE EXTENDS TO WEAKNESSES IN YOUR OWN CASE

The one New Year’s Resolution I recommended to litigators for 2017 was to be very, very, wary of without notice applications. As we get near to the end of the year this advice is borne out by the judgment of Mr Justice Phillips in  St Vincent European General Partner Ltd v Robinson & Ors (Rev 1) [2017] EWHC 3267 (Comm).  This case highlights the extensive nature of the duty of full and frank disclosure when making a without notice application. In particular a failure to consider, and inform the court, of the weaknesses in the claimant’s case and of the strength of the potential defences.

THE CASE

The claimant obtained a  without notice worldwide freezing order in February 2017. The defendants made an application to set aside that order.

THE GROUNDS OF THE DEFENDANTS’ APPLICATION

“It was common ground that the burden was on St Vincent to demonstrate both (i) a good arguable case against Mr Robinson and PPL and (ii) a real risk that they would dissipate assets if not restrained. Mr Robinson and PPL argued that St Vincent have not met either of those requirements. They further contended that it was not just and convenient to continue the injunction by reason of St Vincent’s delay and lack of proportionality. In addition, Mr Robinson and PPL make numerous allegations of material non-disclosure.”

THE JUDGMENT

The claimant failed on the first point. It did not satisfy the judge that it had a good arguable case. The injunction was also applied for very late.

MATERIAL NON-DISCLOSURE

The judge considered the duty of full and frank disclosure.

Material non-disclosure

1. 1. The principles applicable in considering whether there was material non-disclosure in an application for a without notice freezing injunction were summarised by Cooke J in Alliance Bank v Zhunus [2015] EWHC 714 (Comm) as follows:

“65. … The test of materiality of a matter not disclosed is whether it would be relevant to the exercise of the court’s discretion. A fact is material if it would have influenced the judge when deciding whether to make the order or deciding upon the terms upon which it should be made. The question of materiality is a matter for the court and not the subjective judgment of the applicant or his lawyers.

66. There is a high duty on the applicant which can be summarised as follows, by reference to CPR 25.3.5 and authorities there referred to:

“(1) The duty on the applicant in such circumstances goes beyond merely identifying points of defence which might be taken against him, important though that is.

(2) The applicant has to show the utmost good faith, identifying the crucial points for and against the application and not rely on general statements and the mere exhibiting of numerous documents.

(3) The applicant has to investigate the nature of the claim asserted and the facts relied on before applying, and has to identify any likely defences. He has to disclose all facts which reasonably could or would be taken into account by the Court. The duty is not restricted to matters of fact but extends to matters of law.

(4) The applicant also has a duty to investigate the facts and fairly to present the evidence.

(5) There is a high duty to draw the Court’s attention to significant factual, legal and procedural aspects of the case.

(6) Full disclosure has to be linked with fair presentation. The judge has to have complete confidence in the thoroughness and the objectivity of those presenting the case for the applicant.

(7) It is the undoubted duty of counsel to draw to the judge’s attention weaknesses in his case and to make sure the judge understands what might be said on the other side even if the judge says he has read the papers.”

67. I take into account the comments made in Brinks Mat v Elcombe [1988] 1 WLR 1350 at paragraphs 6 and 7 of the judgment of Ralph Gibson LJ and at pages 1358C-G and 1359C-E in the judgments of the other Lords Justices in the context of the consequences which should be visited or not visited upon the applicant who fails in his duties. The authorities show that the interests of justice must be paramount and that a due sense of proportion is required in relation to the assessment of the seriousness of the breach. Moreover, caution must be observed when the non-disclosure in question depends on proof of facts which are in issue in the action and the court must not conduct a mini-trial.“

1. 1. It is relevant to note that the without notice application in the present case was not made in the context of an asset tracing exercise or otherwise in urgent circumstances, but was made at a time of St Vincent’s choosing, when it had had years in which to formulate its case and analyse potential defences.

   2. Mr Robinson and PPL advanced numerous allegations of material non-disclosure, many of which go to the fairness of the presentation to HHJ Waksman QC of the case that Mr Robinson had acted dishonestly or improperly in his dealings with St Vincent and/or creditors. I consider it unnecessary to undertake the task of analysing the details of those allegations because I am satisfied that neither of the two key grounds on which I have found above that St Vincent does not have a good arguable case were sufficiently disclosed to HHJ Waksman QC, if they were disclosed at all.

(a) The allegation of tender/repudiation of the Share Pledge

1. 1. St Vincent’s skeleton argument for the without notice hearing and the transcript of the hearing reveal no attempt to analyse the claim under this heading or the potential defences. The skeleton simply stated at para 36: “Mr Robinson refused to cooperate in the redemption of the share pledge because he wanted to extract sums over and above the actual sums due. That was not permissible“. The law as to tender was not addressed. Nor was the question of the right to start a redemption action, the basis for the implication of a term as to cooperation or the question of how and when any repudiatory breach was accepted.

   2. As for the factual aspects of the allegation, although the existence of the JV Agreement was referred to in paragraph 15 of St Vincent’s skeleton argument for the without notice application, it was simply said that Alterco and Reinhold had “agreed to provide funding of €10.5 million for the Cross Point Development. This was sufficient to enable St Vincent to discharge the Secured Indebtedness …” The JV Agreement was not mentioned in oral argument before HHJ Waksman QC, and so he was not informed that it expressly provided that an agreement would have to be negotiated with HHL and that such an agreement was a condition of funding being provided to the joint venture vehicle. Neither was it pointed out that certain references in Mr Hassall’s emails demonstrated that what was under discussion was a wider commercial agreement in which the Creditors were being asked to do more than simply accept repayment and release their security.

   3. In my judgment the terms of the Joint Venture Agreement provided an obvious starting point and the crucial context for considering the email correspondence between Mr Hassall and Mr Robinson. The failure to refer to and analyse that document was undoubtedly a most material omission.

   4. Looked at as a whole, St Vincent made a bare assertion that it had a good arguable case as to tender/repudiation, without properly investigating, let alone addressing, the relevant facts and the applicable law.

   5. St Vincent relies on the fact that it had obtained default judgments against Mr Robinson and PPL at the date of the application. If this is a purported justification for failing to disclose the defences which might have been available to those respondents, it is without merit. The hearing of the application to set aside was fixed for only two weeks after the without notice hearing and St Vincent must have known that it was not going to oppose the application. But in any event, with such an application pending and being pursued with vigour, St Vincent was clearly obliged to explain its causes of action and to disclose all potential defences. This it wholly failed to do.

   6. St Vincent states that it ensured that HHJ Waksman QC had read Mr Robinson’s statement in support of his application to set aside the default judgment, in which he referred to his contention that offers from St Vincent were conditional. In my judgment that is no answer to the failure to engage in the key factual issues when making the application and is certainly no answer to the failure to deal with the legal aspects of the case.

(b) Reflective loss

1. 1. The Defences served by (i) the fourth, sixth and eleventh defendants; (ii) the ninth defendant; and (iii) the tenth defendant each pleaded that losses claimed by St Vincent were barred by the reflective loss principle. Further, Clyde & Co (solicitors for Mr Robinson and PPL) had expressly raised reflective loss as a central plank of their clients’ defence to the claims against them in a letter sent to St Vincent’s solicitors in April 2016.

   2. Notwithstanding that reflective loss was therefore a real issue in the case, it was not drawn to the attention of HHJ Waksman QC in the skeleton argument for the without notice application or orally at the hearing. Indeed, the skeleton argument purported to summarise the defences of the other defendants, but omitted to refer to reflective loss.

   3. In my judgment this was a further and inexcusable failure to properly analyse and disclose the claims being made and the potential defences, all the more egregious because of the late stage at which the application was made.

   4. St Vincent again suggests that it fulfilled its duty by ensuring that HHJ Waksman QC had read Mr Robinson’s witness statement, in which he had pointed out that the victim of the alleged wrongful acts was HHL or HDP, not St Vincent. That is, of course, a different point, addressing the cause of action rather than the entitlement to sue for the losses claimed. But in any event, it is clear that the duty is to explain legal defences and weaknesses in the applicant’s case to the judge, not merely to rely on pre-reading of factual evidence.

(c) Conclusion on material non-disclosure

1. 1. The real legal and factual difficulties in St Vincent’s case were not raised with HHJ Waksman QC on the without notice application, let alone addressed. I do not find that that was intentional, but was a result of a failure to properly analyse the claims and their potential weaknesses and to ensure that they were deployed and addressed. Given the late stage of the dispute at which the application was made, such failure cannot be excused. As I have found, on a proper consideration of the arguments, that St Vincent does not have a good arguable case, I assume that HHJ Waksman QC may well not have granted the WFO had full disclosure been made to him. Certainly the matters not disclosed to him would have had a material bearing on his decision.

   2. The Set Aside Application therefore succeeds.

Conclusion

1. For the reasons set out above I set aside the WFO (as varied on the giving of undertakings) and dismiss the Continuation Application. In my judgment the without notice application should not have been made and was only successful because of a failure to engage properly with the claims and the potential defences.