Trafigura Pte Ltd & Anor v Prateek Gupta & Ors

Applicants seeking a without-notice freezing order must give full and frank disclosure of matters that might realistically be relied on against the application. The duty is important, but it has sensible limits. It does not require disclosure of speculative points unsupported by the available material. The court must assess the evidence in context and ask whether it should have alerted the applicant to a real possibility of a relevant defence or contrary case. Where the material was fairly presented and the alleged omission would not have added anything significant, the order will not be discharged.

Trafigura obtained a worldwide freezing order without notice from Foxton J on 8 February 2023. The defendants applied for its discharge, alleging serious failures of full and frank disclosure. They contended that evidence available to Trafigura indicated that senior employees and traders knew that cargoes described as nickel were not nickel and were involved in an agreed arrangement.

The application required the court to decide whether the material should have alerted Trafigura to a real possibility of that case, whether the presentation to Foxton J was misleading or incomplete, and whether the alleged knowledge of individual employees was legally attributable to Trafigura.

1. Application dismissed. The defendants did not establish any failure of full and frank disclosure. The presentation made to Foxton J was fair in the circumstances.
2. The governing principles were those identified in Brink's Mat Ltd v Elcombe [1988] 1 WLR 1350. The duty is important, but sensible limits must be drawn. The question was whether the documents relied on should have put Trafigura on notice of a real possibility that particular employees knew of or were involved in the alleged fraud.
3. The evidence concerning HS codes, missing certificates of analysis, inspections, attempts to avoid internal red flags and the close relationship between the parties did not establish that the relevant employees knew the cargoes were not nickel. The alleged “cosiness” of the relationship had in any event been disclosed.
4. The possibility that Mr Bhatia might have known about the arrangement had been sufficiently drawn to Foxton J’s attention. The material concerning Mr Oikonomou did not provide comparable support for an allegation of knowledge. The evidence had to be assessed in its wider context, including Mr Oikonomou’s insistence that inspections proceed.
5. The court made no definitive finding about what any individual knew or about the alleged fraud. Those matters remained for trial. It also declined to express a considered view on the legal effect of attributing an individual’s knowledge to Trafigura, although the defendants faced a serious difficulty under limb (4) of Bowstead & Reynolds on Agency, article 95.
6. Costs were to follow the event in the ordinary way, subject to submissions.

This was a first-instance application concerning a worldwide freezing order granted without notice by Foxton J on 8 February 2023. The judgment does not state a separate appellate history.