Freezing injunction discharged because applicant failed to draw change in standard form order to court’s attention/solicitors’ duties

In Finurba Corporate Finance v Sipp [2011], the Court of Appeal held that “It is very important  that advocates applying for freezing orders ex parte draw to the court’s attention any departures  from the standard form, and ensure that the fact that the court’s attention was drawn to each such  departure is recorded in the note of the hearing. If that is not done, it is only proper for the  court at a subsequent hearing to take that omission into account as a factor against continuing the  injunction, or, in an egregious case, as a reason for not continuing the injunction” (the injunction was discharged in that case).  This case is a further example of a freezing order being discharged because of a failure to make  full and frank disclosure to the court.

The standard form order had been altered in four respects (the applicants apparently having used  their own standard form). Smith J said that both counsel and their instructing solicitors were at  fault for failing to draw the changes from the standard form order to the court’s attention: “If  the solicitors prepare the order they will also have a liability if they do not appreciate that their order departs from a standard form or if they know that the  order departs from a standard form and they permit Counsel to make the application without drawing  to the judge’s attention the non-standard provisions”.

The judge also described the “interims procedure” which operates in the Chancery Division and  emphasised that  this procedure, which allows a large number of applications to be dealt with in  one go, does not allow judges much reading-in time and hence judges are “very dependent on what the  advocates tell them... Without that confidence in being able to rely on counsel, the interim system would simply collapse as there would not be  enough time to accommodate the large number of applications that are brought before the judge”.