Civil Litigation Brief THE DUTY OF FULL AND FRANK DISCLOSURE:

In PCV -v- The Y Regional Government of X [2014] EWHC 68 (Comm) Mr Justice Hamblen set out, in clear terms, the rigorous nature of the duty to give full and frank disclosure to the court when making a without notice application.

THE CASE

The defendants were seeking to set aside an order permitting the claimants to serve an arbitration claim form at the address of their solicitors. It was argued that the order should be set aside by reason of the mandatory provisions of s.12 of the State Immunity Act 1978, alternatively because of a failure to make full and fair disclosure.

THE JUDGMENT

The judge set aside the orders on the grounds that s.12 had not been complied with. However he also held that he would have set aside the orders in any event for failure to make full and frank disclosure

(4) Whether the November and December Orders should be set aside for failure to make full and frank disclosure.

  1. In the light of my conclusion on Issues (1) to (3) it is not necessary to determine this issue. However, since it was fully argued I shall briefly do so.
  1. The importance of making full and frank disclosure on without notice applications is well established and has been repeatedly emphasised by the Court – see, for example, Bank Mellat v Nikpour [1985] FSR 87 at p92; Brink’s Mat Ltd v Elcombe [1988] 1 WLR 1350 at p 1357; Arena Corporation Ltd v Schroeder [2003] EWHC 1089 (Ch) at [213].
  1. As stated by Bingham J in Siporex Trade SA v Comdel Commodities Ltd [1986] 2 Lloyd’s Rep 428 at p 437:

“[The applicant] must disclose all facts which reasonably could or would be taken into account by the Judge in deciding whether to grant the application. It is no excuse for an applicant to say that he was not aware of the importance of matters he has omitted to state. If the duty of full and fair disclosure is not observed the Court may discharge the injunction even if after full enquiry the view is taken that the order made was just and convenient and would probably have been made even if there had been full disclosure.”

  1. In the present case it is now accepted that the Claimants failed to make full and frank disclosure in relation to the November Order in that they failed to draw to the Court’s attention s.12 of the SIA and its potential applicability.
  1. The explanation given in Mr Mohtashami’s evidence is that the potential applicability of Section12 SIA did not occur to Freshfields.
  1. Although the YRG may not be a State, its title states that it is a “government” and it is accepted that Freshfields were well aware of the publicly available information relating to it. This shows it to be a self-governing region which is recognised as a federal region in the country’s constitution which also acknowledges that the YRG has sovereign powers. It has an elected parliament, a president and a department of foreign relations with representative offices abroad. It also has its own military forces.

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