A summary of recent developments in insurance, reinsurance and litigation law.
Fundo Soberano De Angola v dos Santos: Judge discharges worldwide freezing order for non-disclosure
The defendants sought to discharge a worldwide freezing order ("WFO") made against them on various grounds, including the following:
(1) The court had no jurisdiction over most of the underlying claims, and the rest should have been stayed for arbitration. Although the judge agreed with that, save in respect for a small part of some of the claims, he reserved judgment as to whether that would be a sufficient ground to discharge the WFO (until after an application for a case management stay had been determined).
(2) There had been a material non-disclosure when the applicant applied for the WFO. Popplewell J noted that "although the principle is often expressed in terms of a duty of disclosure, the ultimate touchstone is whether the presentation of the application is fair in all material respects". So, in a complex, document-heavy case, it is not enough "if disclosure is made in some part of the material, even if amongst that which the judge is invited to read, if that aspect of the evidence and its significance is obscured by an unfair summary or presentation of the case". A full and fair summary of the available evidence must be given.
Furthermore, the duty is not confined to the applicant's legal advisers. The legal advisers must explain the duty of full and frank disclosure: "The responsibility of the applicant’s lawyers in this respect is a heavy one, commensurate with the importance which is attached to the duty itself. It may be likened to the duties of solicitors in relation to disclosure of documents". However, the client must discharge that duty, since it is the client who is aware of everything which is material.
The judge found that, on the facts, there had been a breach of the duty to make a fair presentation. Although "occasional errors in preparing the material in a case of this size and complexity can perhaps be understood", the breaches here were found to be cumulatively serious and substantial. Accordingly, the freezing order was discharged.
It was reported in Weekly Update 22/18 that the Law Commissions had produced a new version of the Insurable Interest Bill and that they would be conducting a short consultation on it. It has now been announced that the deadline for comments on the bill has now been extended to Wednesday 31 October 2018.