Partner Nicola McKinney examines why full and frank disclosure is pivotal to maintaining judicial integrity

Partner Nicola McKinney examines two recent contrasting judgments concerning the duty of full and frank disclosure in ex parte applications: Attorney General v Jonathan Reid and Others and Zaza Okuiashvili and Others v Bidzina Ivanishvili and Others.

Nicola’s article was published in New Law Journal, 17 July 2025.

Several recent English cases have considered an applicant’s duty to disclose material facts and to make a full and fair presentation in the context of ex parte hearings.  A determinative issue in two cases with starkly different results was the presentation to the court of inconsistent facts.

In the first case, Attorney General v Jonathan Reid and Others [2024] UKPC 30, the Bahamas Court of Appeal found that a factual inconsistency in the application evidence amounted to a material non-disclosure, and dismissed an appeal against the discharge of the injunctive relief.  This was overturned by the Privy Council who found that the inconsistency, in the context of the presentation of the facts as a whole, was obvious and that any argument advanced on the basis of the inconsistency would have no prospect of success; it was not material.

In Zaza Okuiashvili and Others v Bidzina Ivanishvili and Others [2025] EWHC 829 (Ch), the presentation of inconsistent facts was, in context, a “deeply troubling” breach of the duty, and the order permitting service out of the jurisdiction was set aside.

In light of these cases, and the leading authorities, when is this type of mistake of fact a material breach, and when is it not?

Purpose, Centrality, Overview of Materiality

It is long-established that a party making an ex parte application has a duty of full and frank disclosure, the purpose of which is to ensure the integrity of the court’s process, because an ex parte hearing is a departure from the basic principle that the court will hear both sides ( Brinks Mat Ltd v Elcombe [1988] 1 WLR 1350; and Fundo Soberano De Angola v Jose Filomeno Dos Santos and Ors [2018] EWHC 2199 (Comm)).

The duty frequently arises in the context of both ex parte applications for freezing injunctions, and for permission to serve out of the jurisdiction..  The centrality of the duty is demonstrated by the penal approach upon breach; while the judge has a discretion, the starting point will be to deprive the applicant of the remedy.

Mrs Justice Carr’s summary in Tugushev v Orlove [2019] EWHC 2031 (Comm) [7] is instructive (of general application, though a jurisdiction case). On materiality, she noted that material facts are those the judge needs to know to deal with the application, requiring disclosure of issues and possible difficulties, without requiring a detailed analysis of each. She added that material facts vary in relevance and ”a due sense of proportion must be kept”, especially in heavy commercial cases, and the key question is whether the effect of any omission was to misled the court in a material respect.

Materiality therefore depends on the nature of the application;what is material to the judge’s exercise of discretion relates to the relevant test. Ascertaining what is material, and should be included, may not always be straightforward, especially in complex cases, and yet the penalty for getting it wrong can be considerable.  In Brink’s Mat, Gibson LJ noted that “materiality is to be decided by the court and not by the assessment of the applicant or his legal advisors.”  This proposition is frequently referenced where material non-disclosure is alleged.  Yet, as acknowledged by Slade LJ in the same case, while it does not diminish the “heavy duty of candour and care” falling on ex parte applicants, “[p]articularly in heavy commercial cases, the borderline between material facts and non-material facts may be a somewhat uncertain one.” 

Determining materiality can be a tricky and high-stakes exercise in big-ticket litigation.  Does Reid and Ivanishvili add to our understanding of the duty?

A Tale of Two Cases

In Reid, the Bahamian Attorney General obtained a restraint order pursuant to a mutual legal assistance treaty (MLAT) request from the USA, and under Bahamian proceeds of crime legislation, in a case where the proceeds of a fraud appeared to have been transferred to accounts in The Bahamas. The restraint order was later discharged, a decision which was subject to appeal. In the appeal proceedings, the Attorney General made an ex parte application to join a further party and attempted to revive the restraint order. The application relied heavily on the MLAT request, and inadvertently reproduced a date error from the MLAT in an otherwise accurate chronology of events.  The error placed a bank account closure a year earlier than it was opened, and before various relevant transactions. The date error was found by the Bahamas Court of Appeal to amount to a material non-disclosure, and it refused the appeal against the discharge of the restraint order.  The Privy Council disagreed.  At its highest, the date error when considered in context meant that “the existence of a possible argument premised upon the date was not drawn to the attention of the court.  The difficulty with this argument is that the statement was so obviously an unintentional error” [25].  All the other dates in the chronology were correct, and the affidavit evidence as a whole made it apparent that it was a typographical error.  The panel held that “[this is not a case where there is a conflict between two competing dates and it is unclear which is correct” [29].  Further, any argument by the respondents based on the inconsistency would have no prospect of success.  As such, there was no duty for counsel to bring the inconsistency, or the potential argument, to the attention of the court; the non-disclosure was not material.

In contrast, in Ivanishvili, a jurisdiction dispute was determined in favour of the Defendants, partly due to material non-disclosure.  As in Reid, the evidence before the court was contradictory . The applicant had argued, in 16 pages of supporting witness evidence, that there was a serious issue to be tried (part of the test for granting permission to serve out of the jurisdiction) on all claims against all of the Defendants.  However, in relation to certain tort claims, there was on the final page –in complete contradiction to the preceding evidence – an acknowledgement that under the operative (Georgian) law, all the tort claims were time-barred.  That inconsistency was not drawn to the court’s attention, and was ultimately misleading.  At the inter partes hearing, Mr Justice Rajah found that the “position is a world away from the position as it was presented to [the judge] on paper.  It is now apparent that Claim 1, as originally pleaded, was seriously flawed and there was no serious issue to be tried.”

Mistakes do not fall into a special category, and as with omissions of fact, will not amount to material non-disclosure if they do not deprive the judge of relevant knowledge.  It is the the global impression conveyed that led to different results in these cases.

The nature and effect of the error was different in each case.  In Reid, drawing the court’s attention to the date discrepancy would not have assisted the absent party.  As stated in MRG (Japan) Ltd v Engelhard Metals Japan Limited [2003] EWHC 3418 (Comm), the material facts are only those facts which could reasonably have a bearing on the decision the judge has to make. The significant difference in Ivanishvili was that the error went directly to one of the issues which the Court had to consider; the Georgian limitation point would have been a complete defence to the tort claims.  By presenting the limitation point as a footnote, without engaging with its implications for the applicant’s position on whether there was a serious issue to be tried, the Court was left with the wrong impression.  Notwithstanding that in applications for permission to serve out of the jurisdiction a detailed analysis of the merits of the substantive claim is not generally necessary, a consideration of the potential defences available to the absent party is a key component of the duty, which includes not just facts, but everything which the judge should consider. In Pugachev [2014] EWHC  4336 (Ch) [171], Mann J said it is a “fundamental requirement, and safeguard”, for an ex parte applicant to  “actively to consider what points of defence might be taken by the defendant and put them before the court.”

Belt and Braces?

The requirement that it is not for the parties to apply their own judgement in determining materiality is not howevera mandate to deluge the court.  An applicant should use judgement to ascertain what might be relevant to the judge’s exercise of discretion. If it might be relevant – including facts which can be found with reasonable diligence, on inquiry – it should be drawn to the court’s attention.  Yet taking an overly comprehensive approach with no sense of proportion is  wrong.  The inclusion of a laundry list of irrelevant facts might negatively impact the court’s exercise of discretion, if it obscures what may actually be material.

Applicants should take care to discharge their duty even where the judge hearing the application appears to be willing to grant the remedy, and where it might appear unnecessary therefore to articulate each point.  In J & J Snack Foods, Fancourt J held that there had been a number of material non-disclosures before the Judge at the ex parte hearing, and said, “[i]t is not a question of whether the Judge was satisfied, or appeared to be “with him” on the basis of the very limited justification provided in writing…” [29]. This tallies with the difficult task which the Judge hasin an ex parte application.  Popplewell J observed in Fundo Soberano that “[t]he task of the judge on a without notice application in complex cases … is not an easy one. He or she is often under time constraints which render it impossible to read all the documentary evidence on which the application is based, or to absorb all the nuances of what is read in advance, without the signposting which is contained in the main affidavit and skeleton argument. It is essential to the efficient administration of justice that the judge can rely on having been given a full and fair summary of the available evidence and competing considerations which are relevant to the decision.

Respondents should also exercise restraint when making allegations of material non-disclosure.  An unsuccessful application founded on a breach of the duty is likely to be costly.  In Mex Group Worldwide Limited v Ford and Ors [2024] EWCA Civ 959, Coulson LJ warned that, “[i]n future, if the court is presented with a long shopping list of alleged failures of disclosure, with no attempt made to identify the relatively few points which really matter, it should simply decline to consider the issue at all” [112], and that “[q]uality not quantity should be the watchword.  The failure to follow that course … means that there is a real risk that the best points become buried in an avalanche of trivia” [128].

The touchstone is therefore that the court is not deprived of any fact or matter which might be material to its decision; equally, it should not be swamped with irrelevant matters, nor with allegations of minor non-disclosures. An error or omission could fall on either side of that line: if the error results in the court being misled, or deprived of an accurate view of the facts, then it will be a breach of the duty.