Full and frank disclosure: courts are getting tougher

Without notice applications remain a vital tactical tool in civil litigation, particularly in the freezing injunction context. Their potency comes at a price: the strict duty of full and frank disclosure and fair presentation owed to the court when the opposing party has no opportunity to respond.

Three 2025 cases – Apollo XI Ltd v Nexedge Markets Ltd (Apollo), Phlo Technologies Ltd v Tallaght Financial Ltd (Phlo), and Sinclair Pharmaceuticals Ltd v Burrell (Sinclair) – reveal the court’s increasing intolerance of disclosure lapses while showing flexibility for minor procedural errors.

Apollo XI Ltd v Nexedge Markets Ltd [2025] EWHC 1488 (KB): A cautionary tale

In this high-stakes financial dispute, a BVI investment vehicle sought to accelerate a $10 million loan to a UK-regulated broker. The application centred on a covert recording of private CEO discussions, which the applicant claimed showed plans to dissipate assets.

However, critical omissions emerged: the recording’s context (internal strategy debates) and acquisition method (potentially involving bugging) were obscured. The applicant further failed to substantiate claims of breach under a 10-year loan agreement.

Mr Justice Saini discharged the freezing order, calling the case for discharge “overwhelming” and ordering indemnity costs against Apollo XI. The ruling reinforces Tugushev v Orlov [2019] EWHC 2031 (Comm) principles: applicants must present evidence neutrally, even under time pressure. Arguments that omissions were inadvertent were rejected.

Phlo Technologies Ltd v Tallaght Financial Ltd [2025] EWHC 1405 (Ch): Pragmatism in action

This case involved a digital pharmacy’s urgent bid to prevent administration proceedings. While Phlo failed to disclose certain financial arrangements, including its ability to repay loans while maintaining operations, the judge preserved the injunction. The balance of convenience favoured Phlo, given ongoing creditor payments and the risk of irreparable harm if administrators were appointed.

The injunction continued, but indemnity costs were ordered against Phlo for initial non-disclosure. This decision highlights a growing willingness to tolerate lapses when the core application remains strong.

Sinclair Pharmaceuticals Ltd v Burrell [2025] EWHC 1602 (KB): Legal vulnerabilities exposed

Here, an injunction was set aside after the claimant omitted critical legal uncertainties in its case. The applicant pursued without notice relief despite prior awareness of the respondent’s actions, rendering the application to be a form of retaliation rather than one of urgency. The failure to disclose weaknesses in the claimant’s legal position, including contested ownership claims, proved fatal.

The ruling emphasises that legal arguments – especially contested ones, and weaknesses in an applicant’s case fall within disclosure obligations.

Emerging themes

The three cases expose a spectrum of judicial tolerance. Where omissions are so serious to distort decision-making (Apollo and Sinclair), discharge remains the most likely response. In Apollo, the obscured recording context and acquisition method created a “conspiracist’s theory” with no factual basis, justifying discharge.

However, where procedural flaws are minor and the merits strong (Phlo), judges may preserve relief while imposing proportionate sanctions (such as indemnity costs). In Phlo, the undisclosed financial arrangements did not undermine the injunction’s validity, allowing the balance of procedural flaws against the interests of justice.

Conclusion

The court’s message from these three cases is clear: while Phlo suggests some flexibility for minor breaches, the duty of full and frank disclosure remains fundamental to the integrity of without notice applications. As commercial disputes increasingly demand urgent relief, the temptation to present only the strongest ‘cherry picked’ case must be resisted. Disclosure failures can result in orders being discharged, indemnity costs awards, and lasting reputational damage. Without notice relief requires genuine urgency – tactical advantage alone is insufficient, and time pressure is no excuse for cutting corners.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, July 2025