Greenwich Inc Ltd v Dowling & Ors

On a without-notice application for exceptional interim relief, applicants and their legal advisers must present the case fully, fairly and accurately. Counsel has particular responsibility for the legal basis, applicable procedure and draft order, including any departure from a standard form. Material failures may justify discharge even where they were innocent and the order might otherwise have been granted.

The court retains a residual discretion to continue or re-grant relief, exercised sparingly and proportionately. A settlement does not necessarily prevent delivery of a reserved judgment where publication serves a legitimate public interest.

The claimants, companies in administration or liquidation acting through their office-holders, obtained worldwide and domestic freezing orders without notice against directors, alleged de facto directors and associated companies. The defendants challenged the orders for material non-disclosure, misleading presentation and unarguable claims.

The orders contained non-standard provisions, including a notice requirement, a prohibition on informing others and a worldwide scope. The claimants had also inaccurately stated that all relevant businesses had ceased trading. The parties later settled and obtained a consent order staying the actions, but the judge had already indicated the result and prepared a reserved judgment.

1. The undertakings were discharged. The without-notice presentation failed to disclose important matters and inaccurately represented both the factual position and the form of the orders. The orders departed materially from the standard form, yet counsel represented that they were standard.
2. Professional duties. The collective duty of the applicant and legal team extends to material legal, procedural and factual matters. Counsel bears primary responsibility for personally settling the draft order, ensuring that the correct procedure and form are used, and drawing unusual provisions to the judge’s attention. Solicitors may also bear responsibility where they prepare or permit use of a non-standard order without disclosing its departures.
3. Reinstatement discretion. The court retains jurisdiction to continue or re-grant relief after discharge, but exercises it sparingly. Relevant considerations include culpability, the importance of the undisclosed matters, the merits, prejudice, the need to protect the administration of justice and proportionality. The merits are not to be treated as a simple balance capable of neutralising the policy of full and fair disclosure.
4. Handing down after settlement. The court retained a discretion to deliver judgment despite the parties’ settlement and consent order. The reasoning in Barclays Bank plc v Nylon Capital LLP was preferred as the correct modern approach. The fact that the result had been announced, the judgment had been prepared and the case raised matters of public interest strongly favoured publication.