Freezing injunction and whether there had been a material non-disclosure
A freezing order was granted in favour of the claimant. At the return date, the defendant argued, amongst other things, that there had been a material non-disclosure by the claimant when seeking the order.
The judge noted the principles applicable to the duty of disclosure placed on an applicant for a freezing injunction. For example, it is no excuse for an applicant to say he was not aware of the importance of the matters which were not disclosed, or that he had forgotten those matters, and the freezing injunction may be discharged even if it would have been granted had full disclosure been made. However, criticism may be made of an application to discharge which is made on slender grounds or in relation to “trifling errors”. Accordingly, the court is required to perform a balancing act when deciding whether to discharge the order.
Here, the claimant had failed to mention defences which would have been raised by the defendant had he been present at the application. In particular, the claimant failed to mention that the underlying matter had been settled and that he had reasons for disputing that settlement. Furthermore, he had failed to disclose possible counterclaims which the defendant had asserted he might make (even though, in the event, the defendant had not pursued such counterclaims and the seriousness of the suggested claims “must be in doubt”).
Accordingly, the freezing order was discharged.