The Plaintiff obtained the WFO against the three Defendants on 15 March 2022. Following a hiatus of two years, the Defendants unexpectedly brought the aforementioned application. Judgment had already been entered against the Defendants on 5 December 2023 (no application to set aside the judgment was made). It is only after the Plaintiff took steps to enforce the judgment in Delaware that the Defendants submitted to the jurisdiction and began taking steps in the Cayman Islands. In support of the Defendants’ application, they put forward a list of alleged factual inaccuracies and defects in the material available at the time which they submitted had led to the court being misled when the WFO was granted.

In assessing the Defendants’ evidence of allegedly material inaccuracies and defects, Parker J noted (at [20]) that – in the context of the duty to provide full and frank disclosure - “materiality is to be assessed by the Court, not by an applicant or his legal advisers, and not all facts which might or should have been disclosed are sufficiently material to justify or require immediate discharge of the order without examination of the merits. In complex cases and bearing in mind time pressures there is scope for a limited margin of error.” [emphasis added]. Having considered the matters raised by the Defendants, the judge was not persuaded that the WFO should be discharged.

A key factor which stood against the Defendants in the overall consideration of their application was their having previously taken no steps in the Cayman Islands proceedings: “[the Defendants] had been aware of and were content to simply ignore the Cayman proceedings” (at [42]). On an analysis of the evidence before him, Parker J also noted that “[the Defendants] have adopted contradictory positions in the Cayman, English and French proceedings which have not been explained” (at [73]) [emphasis added]. No doubt contrary to the Defendants’ intended outcome, Parker J held that they had gone to great lengths to “avoid justice … by saying whatever it suits them to say at the relevant time and place” (at [134]).

This judgment serves as a reminder to practitioners that, notwithstanding the extensive nature of the duty of full and frank disclosure, it is a high bar to set aside a WFO on the basis of material non-disclosure. Prejudice should arise from the defect: further, disingenuous conduct on the part of an applicant will be highly influential on the prospects of a set aside application in such circumstances.

The two-year delay in seeking set-aside relief was almost certainly terminal to the application, having been described as “unreasonable and improper” (at [139]).