Dar Al Arkan Real Estate Development Company & Anor v Al Refai & Ors

An applicant seeking relief without notice must present the case fairly. That duty extends to material facts, legal difficulties and potential defences. The applicant must make proper inquiries, assessed by the nature of the case, the relief sought, its effects and the urgency.

Substantial or deliberate breaches normally require discharge of the relief. The court may renew it only sparingly, after weighing culpability, the significance of the non-disclosure, the merits and the nature of the order. The public interest in maintaining the integrity of without-notice procedures may outweigh a strong underlying claim.

The claimants brought claims including breach of confidence, conspiracy and unlawful interference against Mr Al Refai, Kroll and Mr Richardson. On without-notice applications, Popplewell J granted non-disclosure, delivery and disclosure orders, permission to serve Mr Al Refai out of the jurisdiction, and a worldwide freezing order.

The defendants applied to set those orders aside, alleging material non-disclosure, misleading evidence, and breaches of undertakings concerning hard drives containing evidence. The central issues were whether the claimants had complied with their duties as without-notice applicants and whether the court should discharge or renew the relief.

1. Without-notice duty. An applicant must make a fair presentation, including full and frank disclosure of material facts and proper guidance on the law. The duty is not confined to actual or attributed knowledge. The applicant must make inquiries that were proper in all the circumstances. Their scope depends on the nature of the case, the relief sought and its probable effects, and the urgency and time available: [1988] 1 WLR 1350, 1357A-B.
2. The claimants failed in that duty. They materially misrepresented or omitted matters concerning the provenance and handling of the hard-drive evidence, the source of bank-account information, the financial position of DAAR, the material supporting the potential iniquity defence, and the application of section 12(3) of the Human Rights Act 1998. Some evidence was dishonest.
3. The claimants also breached the preservation undertaking by deliberately deleting two documents from a hard drive and were probably in breach of the order requiring delivery of the original drives. A breach of an undertaking or related order may justify discharge without a separate finding of abuse of process: [2001] CP Rep 116; [2003] EWHC 3082 (Ch).
4. In deciding whether to renew discharged relief, the court must consider the applicant’s culpability, the importance of the undisclosed matters, the merits, and the nature and consequences of the order. The general rule is discharge without renewal, especially for freezing or seizure orders, although the jurisdiction to renew exists sparingly: [2003] EWHC 1089 (Ch); [2008] EWHC 2614 (Ch).
5. Section 12(3) of the Human Rights Act 1998 required satisfaction that the claimants were likely to establish that publication should not be allowed. The lower threshold of a good arguable case was insufficient: [2004] UKHL 44.
6. The public interest in demonstrating the seriousness of the duty of disclosure outweighed the merits of the claims and the risk of further financial harm. The orders were therefore discharged and not renewed. Permission to serve Mr Al Refai out of the jurisdiction was also set aside and not renewed, because the claimants intended to amend the claim form. Further submissions were invited on the data-protection orders and protection of innocent third parties.