Mattos Junior & Ors v Macdaniels Ltd. & Ors

Material non-disclosure on an urgent without-notice application does not automatically require the resulting order to be discharged. The court must assess all relevant circumstances, including the gravity of the breach, any explanation, the prejudice caused, whether that prejudice is remediable, the overriding objective and proportionality.

In a multi-party claim, the forum non conveniens inquiry concerns the trial of the action as a whole. The court may give substantial weight to avoiding fragmented proceedings and inconsistent findings. A defendant seeking a stay must show both that another competent forum is clearly and distinctly more appropriate and that it is not unjust to require the claimant to sue there.

The claimants pursued claims arising from the alleged misapplication and laundering of money belonging to Banco Noroeste SA. Sunil Vaswani was joined as the forty-second defendant and became subject to a worldwide freezing order limited to US$6.5m.

He applied to set aside the freezing orders, undertakings and security on grounds of material non-disclosure and misrepresentation. He also sought to set aside the claim form and service, or stay the proceedings, contending that Nigeria was the appropriate forum. The central issues were the consequences of the identified disclosure failures and whether the claim against him should be tried in England or Nigeria.

1. Without-notice relief. The court applied the principles stated in Memory Corporation plc v Sidhu [2000] 1 WLR 1443, including consideration of the gravity of the breach, explanations, prejudice, the overriding objective and proportionality. The high duty of full, fair and accurate disclosure identified in Brink's Mat Ltd v Elcombe [1988] 1 WLR 1350 remained subject to those considerations.
2. Three deficiencies were established: failure to disclose the purchase date of a flat, failure to disclose the Swiss freezing order affecting the Sarina account, and a misdescription of Mr Vaswani's position when the money was received. They did not justify setting aside the orders. The merits evidence showed that US$6.5m had been traced to Mr Vaswani, and he had suffered no lasting prejudice because he could have challenged continuation of the order or declined to provide replacement undertakings and security.
3. Forum. The court applied the Spiliada test: the defendant had to establish another available forum that was clearly and distinctly more appropriate and that a stay would not be unjust. The interests considered were not confined to the individual issue between the claimant and defendant. In a multi-party action, efficient conduct, avoidance of delay and costs, and the risk of inconsistent findings were material considerations.
4. England was the appropriate forum. There was no single natural forum, the conduct of Mr Asnani was central to several claims, and retaining the claims together avoided fragmentation. The Nigerian law issue was a straightforward statutory-construction question. Witness difficulties could potentially be addressed by video-link or commission, while the described Lagos procedure was unsuitable for the trial.
5. The application was dismissed in its entirety.