[2024] EWHC 1931 (Comm)

Mr Power made four submissions. His first three concerned matters which were not drawn to the Judge’s attention at the hearing of the application which ought to have been (set out below in para. 41). His fourth submission was that the affidavit and skeleton both contained unqualified statements which were liable to mislead the Court.

Mr Cullen’s overall response was that while the Claimant’s presentation of the evidence may not have reached the gold standard for a without notice application, there was no failure to give full and frank disclosure in any material respect and, even if there had been, the order should be re-made on the evidence now available.

Mr Power highlighted that Knowles J. asked no less than three times to have any matters of full and frank disclosure highlighted to him. The third occasion came in the following exchange:

Mr Power submits that this answer was misleading and wrong. The three things Mr Power says fell into the category of material facts or matters which the judge’s attention should have been specifically drawn to and commented upon as being favourable to the Defendant are:

I accept Mr Power’s first and third submissions without any hesitation. In my judgment, it is plain and obvious that the Agency Emails should have been specifically drawn to the attention of the judge in both the skeleton and at the hearing and along with its potential to provide an answer to the claim. The point that should have been made by Mr Butler (after taking the judge to the Agency Emails and ensuring that it had been read and its context understood) was that if this exchange was genuine, it suggested that Mr Iqbal had been approached by the TK Maxx Impersonators him via LinkedIn and duped into acting as an agent in what was presented as a genuine transaction between TK Maxx and LGD. Moreover, in my judgment, the point ought to have been made that this email correspondence was on its face consistent with what LGD had independently told Apparel had happened.

Mr Power’s second submission is, in my judgment, more marginal. The judge’s attention was in fact drawn to the part of LGD’s letter where the longstanding business relationship between LGD and Mr Iqbal’s company was mentioned but the point in Mr Iqbal’s favour which was not made was that the nature of the relationship might be said to support the potential defence (as disclosed in the Agency Emails) that Mr Iqbal believed that he was bringing (to his long-standing client) a genuine transaction to LGD rather than a fraudulent one.

I also accept Mr Power’s fourth submission. In my judgment, neither the affidavit nor the skeleton presented the evidence in a fair, objective or even-handed manner.

There are a number of problems with Hallam1. It failed in numerous places to distinguish between assertions of fact on the one hand and submissions or inferences on the other. It contains highly prejudicial statements apparently of fact which are not backed up by documents or by any attempt to identify a source of knowledge as required by paragraph 4.4 of the PD to CPR Part 32. In one respect, highlighted in oral submissions by Mr Power, the affidavit was positively factually misleading. It asserted that Mr Iqbal had passed himself off in correspondence as “Sam Lee” when in fact it was the Claimant’s assumption based on an a LinkedIn entry (not exhibited to Hallam1 but only to Hallam2) that Sam/Mr Iqbal was Mr Sam Lee. The table below summaries the passages in the affidavit which were, in my judgment, misleading and/or failed to comply with paragraph 4.4 of the PD to CPR Part 32:

It is right to say though that Hallam1 is far from being all bad. The vast majority of statements in Hallam1 are correctly supported by identified sources of knowledge - usually an exhibited document. It is nevertheless very unfortunate that interwoven in that otherwise correctly referenced narrative are a whole series of highly prejudicial factual assertions about the Defendant (including those identified in the table above) for which no source of knowledge was provided or for which the Claimant had no direct evidence. What the deponent was required to do in the interests of “objectivity” and “fair presentation” and in compliance with para. 4.2 of the PD to CPR Part 32 was set out what he (or others) knew in neutral terms, the source of that knowledge and then identify, any weaknesses or problems with that evidence and, finally, what inferences it was reasonable to draw about the role of Defendant in light of that evidence.

The skeleton argument might have been used as a means to mitigate the problems with Hallam1 identified above e.g. alerting the court that some of the statements in Hallam1 needed to be qualified and generally by presenting a more balanced account of the evidence and case. However, the skeleton did not do this. It too contained the assertions which were, in my judgment, submissions on material points dressed up as factual matters and in the case of (c) repeated the statement about the Defendant posing as Sam Lee which was straightforwardly wrong:

It was of course open for Mr Butler to say in the skeleton that it was the Claimant’s case that the Respondent had posed as both of the TK Maxx Impersonators and Malcom Yani but the evidence on which those submissions were based should have been properly and fairly summarised.

The skeleton contained no section on full and frank disclosure. It is almost universal practice for a skeleton for a without notice application to contain such a section to demonstrate that to the Court that counsel has (i) considered the application from the perspective of the person against whom the freezing injunction is sought; (ii) considered specifically what evidence ought to be highlighted to the court on his or her behalf; and (iii) what weaknesses there are in the Claimant’s evidence and/or case. It is no doubt precisely because the skeleton contained no such section that that Knowles J asked for assistance on the point during the hearing.

I accept Mr Power’s submission that Mr Butler’s answer to the judge’s question in the passage cited in paragraph 40 above, was a failure to provide full and frank disclosure. It will be a rare case in which there is literally nothing which can be said against the application or for the Defendant. There may be some cases where the evidence is so clear and overwhelming that the advocate can properly say “there is nothing I can think of which if the Defendant were he here would want you to know”. However, in my judgment, this was certainly not such a case for the reasons already given. This is not a case where the Claimant is being criticised for failing to think up a highly abstract or theoretical defence. The Agency Emails plainly disclosed a clear and obvious potential defence.

I reject Mr Cullen’s submission that there was no need to take the judge to the “Agency Emails” because he had indicated that he had “read the materials”. Even though the Agency Emails were referred to in Hallam1 and exhibited to Hallam1, it remained, in my judgment incumbent upon Mr Butler in the interests of fair presentation to take the judge to the Agency Emails and to make the point that if they are genuine, they suggest Mr Iqbal may himself been duped into acting as an agent. It was all the more important to do so at the hearing because this point had not been made in the skeleton.

In the interests of fair presentation, in my judgement, the following points should also have been highlighted in answer to the judge’s question: (i) that as matters stood Apparel had no direct evidence to suggest that the Agency Emails had been fabricated (ii) there was no direct evidence that Mr Iqbal was the TK Impersonators (iii) if LGD were telling the truth when they said that Mr Iqbal had been trading successfully with them since 2016 and was well known to them (as Sam), then it might appear somewhat odd that Mr Iqbal should have chosen to involve them in the fraud.

Standing back and looking at matters in the round, the affidavit, the skeleton and the oral presentation of the case at the hearing, in my judgment, all fell significantly short of what is required in terms of overall fair and objective presentation of the evidence and the strength of the Claimant’s case in material respects. I am satisfied that the Order should be set aside as a result, essentially for the reasons submitted by Mr Power.