Whether freezing injunction should be set aside because of misconduct of a party's legal representative
The applicant applied to set aside a freezing injunction made against him on the basis that the claimant's legal representative deliberately or recklessly misled the court. Flaux J considered the following general principles:
(1) Although the duty of full and frank disclosure only applies on an ex parte application, the cases on the effect of a deliberate failure to make full and frank disclosure were applicable by analogy to this case, which involved a hearing which was inter partes. Accordingly, unless there are exceptional circumstances, an order will be discharged where there has been deliberate non-disclosure or misrepresentation.
(2) The judge opined that although deliberate misconduct would not of itself be a reason not to grant a fresh freezing order (provided it was otherwise appropriate to do so), when that deliberate misconduct is viewed as a failure to "come to equity with clean hands", that would be a basis for refusing to grant a fresh order (because there would have been an "immediate and necessary relation between the misconduct of deliberately misleading the court….and the equity now sought of a fresh Freezing Order"). In any event, though, the judge held that it would not be appropriate here to grant a fresh freezing order.
(3) Was it relevant that the misconduct was that of the solicitor and not the client? Flaux J held not: "as a matter of principle, where a court is being invited to impose some sanction for negligence or misconduct, solicitor and client are to be regarded as indivisible". Prior caselaw remained applicable even though there has been no post-CPR authority directly in point. Furthermore, the freezing order should not be allowed to stand here because the claimants had not been "blameless ingénues".