Duty of full and frank disclosure: Wild Brain Family International Ltd v (1) Robson & (2) Chubb  EWHC 3163 (Ch)
In court proceedings injunctive relief may be granted to the claimant after successfully asserting a without notice application in circumstances where, for example, there is a case of extreme urgency or if there is a need for secrecy. In order to assert an application without notice, the claimant has a duty of full and frank disclosure. The court considered the requirements of this duty as well as fair presentation and clarified the applicant's legal team's weighty responsibility for advising and ensuring compliance with these requirements by the applicant in the recent case Wild Brain Family International Ltd v (1) Robson & (2) Chubb  EWHC 3163 (Ch).
The claimant successfully obtained an injunction after asserting a without notice application because the defendant was accused of misusing confidential information. The defendant, on the other hand, sought to discharge the claimant's order, arguing that the claimant had violated his duty of disclosure. The judge rejected the defendant's application.
In this judgment, the court specifically addresses the conditions of the duty of full and frank disclosure and collectively captures the significance of this duty in legal proceedings. In addition, the judge acknowledges the heavy responsibility of the applicant's legal advisers to meet the requirements of this duty. Furthermore, the court also recognises the limits of the duty and weighs the interests on the basis of the relevant provisions and the 12 grounds put forward by the defendant, with a result of dismissing the discharge application.
Findings on the duty of full and frank disclosure
In fulfilling the duty, the requirement of fairness must always be observed, which implies that in relation to the without notice application, as an exception to the principle of hearing both sides, a presentation must be made in a fair and even-handed manner and should also be taken in the interest of the absent party. The ultimate touchstone is therefore a presentation that is fair in all material respects; the evidence must be presented in a way that cannot be regarded as misleading or unfairly one-sided.
The applicant's duty is to provide a full and fair disclosure of all material facts; the classification as materiality being determined by the court. It should be noted that the material facts relate not only to those known to the applicant but also to those which should have been known to him. Therefore, the applicant is required to conduct proper enquiries within the scope of his possibilities. This framework is set by all the circumstances of the case, in particular the nature of the case and the order sought; the probable effect on the defendant, the degree of reasonable urgency and the time available to conduct enquiries.
Nevertheless, according to the Court, the duty of disclosure is not unlimited. The applicant may put forward arguments at his own discretion. For example, the defendant's opinion on the seriousness of the submission is irrelevant; the duty does not extend to making it clear to the court that the defendant would seek to have the application rejected.
The applicant was not required to take the court to cases to reinforce a legal proposition in the same way as the respondent would have cited particular cases. The only duty was to draw the attention of the court to this relevant principle. In addition, incorrect or erroneous submissions do not lead to non-disclosure or material misrepresentation unless they deprive the court of material information.
According to the court's considerations, this fundamental significance of the duty of disclosure is also emphasised by the heavy responsibility of the claimant's legal advisers. The duty of disclosure therefore rests upon the claimant himself, but also the legal advisers who have an obligation to draw the claimant's attention to its importance and to ensure that the claimant is aware of this duty. The responsibility of the claimant's legal team to ensure the compliance of the claimant with the duty can be compared to the importance of the duty of disclosure itself.
This case illustrates that while there are strict disclosure requirements both for the applicant and for his legal advisers, these can be met within their limits and with responsible legal counsel in order to successfully obtain a without notice application. The exceptional nature of the without notice application in legal proceedings should be taken into account when deciding whether or not an application is pursued. The importance of the principle of fairness including the right of both parties to be heard by the court should always be acknowledged in the information put before the court with such an application.