Alma Communications Ltd & Anor v Feedback Communications Ltd

A party seeking urgent ex parte injunctive relief must make full and frank disclosure of all material facts. The duty extends to information going to the merits of the claim and to whether relief should properly be granted without notice. Where material information about comparable market uses and the claimant’s response to them is withheld, the breach may be profound. The court may therefore refuse to continue the ex parte injunction, even in a more limited form and even where the defendant does not oppose that course.

The claimants alleged trade mark and passing off rights in the word “Bangla” and in the get-up of a telephone card. An ex parte injunction was granted by Lloyd J and later extended in substantially identical terms.

On the application to continue the injunction pending an inter partes hearing, it emerged that the claimants had known of at least four other cards using or incorporating “Bangla”. They had challenged some of those uses but had not pursued the correspondence. That material had not been disclosed when the ex parte relief was obtained or extended. The issue was whether the relief should continue in any form.

1. The application to continue the ex parte injunction was refused. None of the ex parte relief was continued pending the inter partes hearing.

2. A party seeking relief without notice is under an obligation to make full and frank disclosure. The obligation is not confined to evidence directly supporting the claim. It includes material which may affect the claimant’s entitlement to relief and the propriety or scope of granting relief without notice.

3. The undisclosed information was material because it concerned at least four other telephone cards using or incorporating the mark “Bangla”. The claimants had apparently drawn the other proprietors’ attention to the alleged infringement but had not pursued the matter. That evidence went to the strength and context of the claimants’ asserted rights, as well as to the decision whether emergency relief should have been granted ex parte.

4. The failure to disclose the material amounted to a profound breach of the full and frank disclosure obligation. There was no explanation from the managing director for the omission. The court therefore declined to continue the relief in any form, notwithstanding that counsel and solicitors were not criticised and that the defendant was not agitated by the prospect of a more limited injunction.