Although the heavy duty of full and frank disclosure is familiar territory in relation to injunction applications, it is sometimes less fully appreciated that the duty to disclose continues after the application for the injunction has been successfully made. It is also important to recognise that the continuing duty applies on any ex parte application, not just an application for an injunction.

One of the most frequently made ex parte applications is for permission to serve the claim form out of the jurisdiction and in Network Telecom (Europe) Ltd v Telephone Systems International Inc [2003] EWHC 2890 (QB) the Court made it clear that the continuing duty of disclosure applies equally to such applications. It was held in this case that an applicant must return to Court, following the making of the order, to advise of any subsequent material developments and seek clarification as to whether the order can still be relied on.

Surprisingly, Burton J’s suggestion that an appropriate and clear note be made in the White Book drawing the attention of practitioners to this requirement was not taken up. This omission is particularly striking given that the Judge suggested the leniency he showed towards the practitioners concerned may not be appropriate in future cases.

Given the length of time that it can take to serve proceedings out of the jurisdiction (delays of over a year are not uncommon), there is significant scope for material developments to occur between the making of the order and service actually being carried out.  The continuing duty of disclosure once permission has been granted can therefore be an onerous requirement and one that practitioners must remain mindful of.

A more detailed consideration of the continuing duty and its application beyond the context of injunction applications is found in a companion article (http://www.teacherstern.com/ex-parte-continuing-disclosure-obligations/). However, it is hoped that this short note will assist those who are waiting for the lengthy service out of the jurisdiction procedure to be completed.