[2025] EWHC 2941 (Comm)

There is a duty of full and frank disclosure on a without notice application with the applicant being required to make a full and fair disclosure of all material matters. In the event of a breach, the Court has a discretion to continue or re-grant the order if it is just to do so and this is most likely to be exercised if the non-disclosure is less serious or less culpable; Gee on Commercial Injunctions, 7^th ed. at 9-021.

The Defendants rely on the following alleged breaches of the duty of non-disclosure:

The Claimants properly accept that it would have been preferable to emphasise the time bar and the legal test as part of their application. But they submit that it can be inferred that in this case the Court was aware of both the possible limitation defence and the relevant legal test.

First, the issue of the possible limitation defence was raised in Ms. Khan’s first witness statement at paragraph 38 when the Claimants sought the First Extension Order. Khan 1 was included in a 26-page bundle of exhibits attached to Ms. Tully’s witness statement in support of the second extension application. Ms. Tully cross-referred to other paragraphs of Khan 1 in her witness statement in support of the application for the Second Extension Order. Accordingly, the Claimants say that even if the judge only read Khan 1 at a high-level when considering the second extension application, he would have been aware of the possible limitation defence.

Second, the Claimants say that an experienced commercial court judge such as Knowles J. would have been aware of the appropriate test for granting an extension of time in any event.

As the Claimants rightly acknowledge, their application for the second extension should have stated more obviously the existence of the potential limitation defence and have expressly set out the legal test to be met if the extension sought was to be granted. However, I am satisfied that to the extent there were breaches of the duty of full and frank disclosure, they were minor breaches and do not justify setting aside the Second Extension Order.

So far as the Defendants’ third and fourth criticisms of the Claimants’ application are concerned, it follows from my findings above that there was no failure on the part of the Claimants to disclose any incompetence or oversight on the part of WFW or Ince & Co. Further, I do not regard the failure to disclose the e-mail advice from FPS dated 20 June 2023 as a breach of the duty of full and frank disclosure, which would justify setting aside the Second Extension Order. The original advice is referred to in Khan 1 at paragraph 35 such that the failure of Ms. Tully to refer to the advice in her first witness statement is a minor breach at most.

For all the above reasons, I do not consider that there was any failure by the Claimants in their duty of full and frank disclosure or to explain the reasons for the second extension application, which justifies setting aside the Second Extension Order.