The Claimants brought proceedings against the Defendants for trademark infringement and passing off. In support of the proceedings, the Claimants successfully obtained an ex parte worldwide freezing injunction (for £20 million) and an access and imaging order against the Defendants. The Defendants subsequently applied for the orders to be discharged for failure of fair representation by the Claimants’ solicitor at the ex parte hearing.

After considering the parties’ arguments, Mr Justice Fancourt was satisfied that the freezing injunction and the access and imaging order should be discharged, and that there would be no re-granting of any freezing injunction.

In coming to his decision, the Judge was critical of the manner in which the Claimants’ solicitor had presented the case at the ex parte hearing, in particular, the solicitor’s failure to fully address key aspects of the case to the Judge.

These included inter alia:

• not properly explaining the appropriateness of an ex parte  hearing in the circumstances;
• failure to distinguish the appropriate test to establish liability and differentiate the quantum for the different phases of the alleged infringement;
• not providing a complete and fair presentation in relation to the risks of the dissipation of assets and destruction of evidence; and
• omitting to bring to the judge’s attention relevant information arising from related proceedings in Ohio.

While the Judge did not view the foregoing failures as deliberate, he indicated that there was a lack of understanding by the Claimant’s solicitor as to what “full and frank” disclosure meant. In that regard, he noted that the Claimants’ submissions only contained discreet procedural points that might be raised by either Defendant, and these were not “arguments that the Defendants could reasonably be anticipated to make against the cogency of key building blocks of the Claimants’ case, whether on liability or quantum”.

The scope and nature of the duty was explained as such:

“Anyone applying without notice for a freezing injunction or an access and imaging order, and especially if applying for both together, must understand that there is a very high duty on them to ensure that relief of that nature is not granted without the Defendant’s case, so far as it can be anticipated, being put squarely before the Court, and any weaknesses in the applicant’s case being identified. However much a judge may indicate that they see things the applicant’s way, the absent respondent’s likely case still needs to be articulated and understood before a decision is made.”

This judgment is a timely reminder to all potential applicants in ex parte  applications to make proper enquiries beforehand to ensure that the Court is apprised of all relevant information and arguments, including any substantive points that the respondent would wish to make were they present. Obtaining without-notice relief demands meticulous preparation and a commitment to transparency. The consequences of failing to meet the high standard of full and frank disclosure can be severe, even if the underlying claim appears strong. Full compliance must therefore be ensured.

While Harneys does not advise on the law of England and Wales, this judgment may be considered in other common law jurisdictions such as the BVI, Cayman Islands, and Bermuda, where freezing injunctions are regularly sought.