WITHOUT NOTICE APPLICATIONS: THE DUTY OF FULL AND FAIR DISCLOSURE – A CASE THAT ILLUSTRATES THE POINT

April 23, 2019 · by · in Applications, Civil Procedure, Injunctions

There is an interesting discussion of the duty to give full and fair disclosure in the judgment of HHJ Klein (sitting as a High Court judge) in  Wild Brain Family International Ltd v Robson & Anor [2018] EWHC 3163 (Ch).   Although the defendants were not successful in setting the order aside the case shows the extent to which a claimant can expect to have such orders challenged.  Any applicant for a without notice order is under particularly stringent obligations.

“The task of the judge on a without notice application in complex cases such as the present 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.”

THE CASE

The claimants had obtained a without notice order for delivery up, evidence preservation and computer imaging against the defendants. The defendants attempted to set aside that order on a number of grounds. One of those grounds was that the claimant had failed to give full and frank disclosure when the without notice order was made.

THE JUDGMENT ON THIS ISSUE
  1.  I turn, then, to consider the Defendants’ application to discharge the Injunction on the ground that the Claimant breached its obligation to give full and frank disclosure (“the fair presentation obligation”).
  2.  The parties agree that the nature of an applicant’s obligation and the court’s approach in this context was set out by Ralph Gibson LJ in Brink’s Mat Ltd. v. Elcombe [1988] 1 WLR 1350, 1356-7, as follows:
“In considering whether there has been relevant non-disclosure and what consequence the court should attach to any failure to comply with the duty to make full and frank disclosure, the principles relevant to the issues in these appeals appear to me to include the following.
(1) The duty of the applicant is to make “a full and fair disclosure of all the material facts:” see Rex v. Kensington Income Tax Commissioners, Ex parte Princess Edmond de Polignac [1917] 1 KB 486, 514, per Scrutton LJ.
(2) The material facts are those which it is material for the judge to know in dealing with the application as made: materiality is to be decided by the court and not by the assessment of the applicant or his legal advisers: see Rex v. Kensington Income Tax Commissioners , per Lord Cozens-Hardy MR, at p.504, citing Dalglish v. Jarvie (1850) 2 Mac & G 231, 238, and Browne-Wilkinson J in Thermax Ltd. v. Schott Industrial Glass Ltd. [1981] FSR 289, 295.
(3) The applicant must make proper inquiries before making the application: see Bank Mellat v. Nikpour [1985] FSR 87. The duty of disclosure therefore applies not only to material facts known to the applicant but also to any additional facts which he would have known if he had made such inquiries.
(4) The extent of the inquiries which will be held to be proper, and therefore necessary, must depend on all the circumstances of the case including (a) the nature of the case which the applicant is making when he makes the application; and (b) the order for which application is made and the probable effect of the order on the defendant: see, for example, the examination by Scott J of the possible effect of an Anton Piller order in Columbia Picture Industries Inc. v. Robinson [1987] Ch 38; and (c) the degree of legitimate urgency and the time available for the making of inquiries: see per Slade LJ in Bank Mellat v. Nikpour [1985] FSR 87, 92-93.
(5) If material non-disclosure is established the court will be “astute to ensure that a plaintiff who obtains [an ex parte injunction] without full disclosure…is deprived of any advantage he may have derived by that breach of duty:” see per Donaldson LJ in Bank Mellat v. Nikpour , at p.91, citing Warrington LJ in the Kensington Income Tax Commissioners’ case [1917] 1 KB 486, 509.
(6) Whether the fact not disclosed is of sufficient materiality to justify or require immediate discharge of the order without examination of the merits depends on the importance of the fact to the issues which were to be decided by the judge on the application. The answer to the question whether the non-disclosure was innocent, in the sense that the fact was not known to the applicant or that its relevance was not perceived, is an important consideration but not decisive by reason of the duty on the applicant to make all proper inquiries and to give careful consideration to the case being presented.
(7) Finally, it “is not for every omission that the injunction will be automatically discharged. A locus poenitentiae may sometimes be afforded:” per Lord Denning MR in Bank Mellat v. Nikpour [1985] FSR 87, 90. The court has a discretion, notwithstanding proof of material non-disclosure which justifies or requires the immediate discharge of the ex parte order, nevertheless to continue the order, or to make a new order on terms:
“when the whole of the facts, including that of the original non-disclosure, are before [the court, it] may well grant…a second injunction if the original non-disclosure was innocent and if an injunction could properly be granted even had the facts been disclosed:” per Glidewell LJ in Lloyds Bowmaker Ltd. v. Britannia Arrow Holdings plc , ante, pp.1343H–1344A.”
  1.  In Fundo Soberano de Angola v. Dos Santos [2018] EWHC 2199 (Comm), Popplewell J explained, at [51]-[53]:
“Three points which are relevant to the current applications deserve emphasis. The importance of the duty has often been emphasised in the authorities. It is necessary to enable the Court to fulfil its own obligations to ensure fair process under Article 6 of the European Convention on Human Rights. It is the necessary corollary of the Court being prepared to depart from the principle that it will hear both sides before reaching a decision, which is a basic principle of fairness. Derogation from that basic principle is an exceptional course adopted in cases of extreme urgency or the need for secrecy. If the court is to adopt that procedure where justice so requires, it must be able to rely on the party who appears alone to present the evidence and argument in a way which is not merely designed to promote its own interests, but in a fair and even-handed manner, drawing attention to evidence and arguments which it can reasonably anticipate the absent party would wish to make. It is a duty owed to the court which exists in order to ensure the integrity of the court’s process.
The second is that although the principle is often expressed in terms of a duty of disclosure, the ultimate touchstone is whether the presentation of the application is fair in all material respects : see Robert Walker LJ in Memory Corporation v Sidhu (No 2) [2000] 1 WLR1443, citing formulations from, amongst others, Slade LJ in Bank Mellat v Nikpour [1985] FSR 87, 92, Bingham J in Siporex Trade v Comdel Commodities [1986] 2 Lloyd’s Rep 428, 437 and Carnwath J in Marc Rich & Co. Holding v Krasner (18 December 1998). This is again the consequence of the exceptional derogation from the principle of hearing both sides. The evidence and argument must be presented and summarised in a way which, taken as a whole, is not misleading or unfairly one-sided . In a complex case with a large volume of documents, it is not enough if disclosure is made in some part of the material, even if amongst that which the judge is invited to read, if that aspect of the evidence and its significance is obscured by an unfair summary or presentation of the case. The task of the judge on a without notice application in complex cases such as the present 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.
Thirdly, the duty is not confined to the applicant’s legal advisers but is a duty which rests upon the applicant itself. It is the duty of the legal team to ensure that the lay client is aware of the duty of full and frank disclosure and what it means in practice for the purposes of the application in question; and to exercise a degree of supervision in ensuring that the duty is discharged. No doubt in some cases this is a difficult task, particularly with clients from different legal and cultural backgrounds and with varying levels of sophistication. But it is important that the lay client should understand and discharge the duty of full and frank disclosure, because often it will only be the client who is aware of everything which is material. The responsibility of the applicant’s lawyers in this respect is a heavy one, commensurate with the importance which is attached to the duty itself. It may be likened to the duties of solicitors in relation to disclosure of documents (see CPR PD31A and Hedrich v Standard Bank London Ltd. [2008] EWCA Civ 905)” (emphasis added).
  1.  The fair presentation obligation is particularly important on a without notice application for a search order (or for similar relief) because of the invasive nature of such an order (per Donaldson LJ in Bank Mellat , at page 92).
  2.  Without seeking to diminish the importance of the fair presentation obligation in any way whatever, it seems to me that there must be some limit to that obligation. To take an example, just because a respondent might have taken the court to a number of cases to reinforce a legal proposition, so long as the applicant has fairly drawn to the court’s attention the principle derived from those cases, I do not think that the applicant is required to take the court to those cases in the way the respondent would have done. To repeat what Popplewell J noted in the Fundo case, “the ultimate touchstone is whether the presentation of the application is fair in all material respects” (per Robert Walker LJ in Sidhu ).
  3.  There is support for the conclusion that there is some limit on the fair presentation obligation in Gee; paragraph 9-001, where it is said:
“…Incorrect submissions or arguments, including erroneous legal submissions, will not amount to non-disclosure or material misrepresentation provided that such errors do not deprive the court of knowledge of any material circumstance. This is on the basis that the applicant has acted fairly and is entitled to advance his arguments as he wishes provided that the court receives a fair presentation of the case.”
  1.  In their skeleton argument, the Defendants identify 11 grounds on which they contend the Claimant failed in its fair presentation obligation at the 4 September hearing and Mr Reade apparently identified a further ground during the course of his submissions. The Defendants’ skeleton argument sets out the grounds in some detail. I give a sufficiently accurate summary of each of them below and set out my conclusions on each of them in turn.
  2.  Ground 1: Lock , in particular the passage quoted by Warren J in Indicii Salus , should have been dealt with more fully. The passage was set out in paragraph 36 of the Claimant’s skeleton argument for the 4 September hearing (“the Skeleton Argument”) which Nugee J read. Indeed, somewhat more of what Hoffmann J said in that case, which favoured the Defendants, was set out in the Skeleton Argument. Nugee J described what Hoffmann J said in Lock as “very interesting”. It is clear to me that Nugee J had well in mind what Hoffmann J said in Lock about the limits of justifiable inferences on search order applications and about the requirement that any order be proportionate. This is not a ground to discharge the Injunction.
  3.  Ground 2: Nugee J should have been taken to authorities about when it is legitimate for the court to draw an inference. In particular, he should have been taken to Thane Investments Ltd. v. Tomlinson [2003] EWCA Civ 1272, at [28]. In Thane , Peter Gibson LJ “emphasised…that a mere unfocused finding of dishonesty is not, in itself, sufficient to ground an application for a freezing injunction” (per Patten J in Jarvis Field Press v. Chelton [2003] EWHC 2674 (Ch), at [10]). The Claimant made clear, in the Skeleton Argument, that its case on the risk of document destruction was based on inference and that it had no direct evidence that the Defendants had destroyed documents. Further, its case was not based on “a mere unfocused [allegation] of dishonesty”. Rather, its case was based on allegations of wrongful conduct directly relevant to Moonbug’s acquisition of LBB. I do not believe, therefore, that the Claimant failed in its fair presentation obligation in this respect.
  4.  Ground 3: The Claimant did not fairly present the Defendants’ case that:
  5. i) they are respectable;
  6. ii) they openly said that they were entering into competition and were being financed by highly respectable institutions;
iii)                as their conduct following the making of the Injunction (including the without notice order) shows, by their compliance with it, they are not the sort of people who would destroy evidence;
  1. iv) there was insufficient evidence, in any event, for Nugee J to infer a sufficient risk of destruction;
  2. v) the Claimant has dealt with others since the 4 September hearing by correspondence.
I consider below, in more detail, a letter, dated 2 February 2018, from the Claimant’s solicitors to the First Defendant’s then solicitors (“the February letter”) (although I do have in mind, on this ground, the conclusions I reach below in relation to that letter).
  1.  As I have explained, there is a dispute about what the Defendants revealed about their intentions and I was taken to no evidence which indicated that the Claimant knew the Defendants’ case on this point or ought to have known their case (save from what might be derived from the February letter).
  2.  Nor could the Claimant know, at the 4 September hearing, how the Defendants would respond to the Injunction.
  3.  Nor is there any evidence that the Claimant’s decision to deal with others in the way it has done was in the Claimant’s mind at the 4 September hearing.
  4.  On a without notice application, the court is well aware that a respondent, had he had notice of the application, may well have submitted that the application should be dismissed. The very purpose of the fair presentation obligation is to allow the court to consider, so far as it is able, the without notice application from the respondent’s perspective. I do not think that an applicant is required, as part of its fair presentation obligation, to say to the court that the respondent would say that the application should be dismissed (so long as the fair presentation obligation is otherwise complied with).
  5.  Further, I do not see how the fact that the Defendants take the view that they are respectable people is material to the Injunction application.
  6.  In the circumstances, this ground is not made out.
  7.  Ground 4: In paragraph 63 of the Skeleton Argument (in the section on full and frank disclosure), the Claimant mentioned that Goulding: Employee Competition (3 rd ed) made the point that “orders for the early provision of information or early disclosure of documents are exceptional and should not be granted where they amount to a fishing expedition, or are “tantamount to standard disclosure in an unpleaded case”.” The Defendants contend that the Claimant should have made more of this point at the 4 September hearing and should have drawn, to Nugee J’s attention, authorities which support that legal proposition; in particular, AON Ltd. v. JCT Reinsurance Brokers Ltd. [2009] EWHC 3448 (QB), where Mackay J said, at [24]:
“In conclusion, I do not doubt, and nor has it really been strenuously argued by the defendants, that there are no circumstances and there is no case in which disclosure of this general type can be ordered where it is appropriate to do so in the exercise of the court’s discretion. The issue for me is whether the circumstances here are such that it is appropriate to make what is on any view an exceptional and not a routine order, one which should not be made as a matter of course where prohibitory injunctions of the type found elsewhere in this proposed order are to be found.”
To my mind, the principle in issue, as articulated in AON in particular, was fairly set out in the Skeleton Argument and the Claimant was not required to repeat the point in oral submissions when Nugee J indicated that he had read the Skeleton Argument. Nor do I think, for the reasons I have already explained, that the Claimant was required to take the Judge to authorities which supported the principle. Indeed, it is perhaps instructive to note that, in AON , Mackay J said, at [18]:
“To say that applications such as this are fact sensitive is a trite proposition. The assistance therefore to be derived from decisions in other cases is limited except where clear statements of principle can be discerned…”
  1.  Ground 5: The Claimant did not fairly represent to Nugee J that the Delivery Up order, in particular, was not required to be made without notice. I understand the Defendants’ complaint to be that the Claimant should have pointed out to Nugee J that, had the Defendants been at the 4 September hearing, the Defendants might have argued that it was not necessary to make the Delivery Up order (in particular) at that hearing.
  2.  In paragraph 63 of the Skeleton Argument, the Claimant made the point that “the [Defendants] would be likely to argue that this part of the order is not so urgent as to justify being made without notice”.
  3.  Further, the without notice order contained a wider Delivery Up order, because it covered “Specified Documents”. At the on notice hearing on 12 September 2018, Nugee J varied the Delivery Up order to exclude Specified Documents. [19] During the course of the 4 September hearing, Nugee J asked, on more than one occasion, whether, whether or not Specified Documents ought to be delivered up, should be determined on the return date. Nugee J’s intervention supports the conclusion that he had well in mind whether it was appropriate to make the Delivery Up order at the 4 September hearing.
  4.  In these circumstances, I am satisfied that, in this respect, the Claimant complied with its fair representation obligation.
  5.  Ground 6: The Claimant should have drawn to Nugee J’s attention properly that complying with the Injunction would be an onerous task; particularly, I understand the Defendants to contend, for them. It is clear, from the transcript of the 4 September hearing, that Nugee J was taken through the draft Injunction carefully and that he had in mind that compliance with the Injunction would be onerous; saying, at one point: “He has to do a whole lot of things immediately…[H]e can’t do all of them at the same time…” Further, Mr Reade accepted, properly in my view, that the Claimant could not reasonably know about any matters peculiar to the Defendants which made their compliance with the Injunction unusually onerous. Nugee J having apparently made clear that he had well in mind the terms of the draft Injunction, I do not think that anything more was required of the Claimant, as to the timings in the Injunction, in order for it to comply with its fair presentation obligation.
  6.  Ground 7: The Claimant did not properly draw to Nugee J’s attention that, to comply with the Delivery Up order, the Defendants might have to deliver up material confidential to third parties. I understand that the Defendants make a particular criticism about the order for the delivery up of Specified Documents in the without notice order. As to that, as I have said, in my view, any criticism of the Claimant was properly addressed at the hearing on 12 September 2018.
  7.  The reason why the Defendants have delivered up material which is confidential to third parties, in over-compliance with the Delivery Up order, is because they have mixed material confidential to the Claimant with material confidential to others. It must be remembered that, by the Delivery Up order, the Defendants were required to deliver up all copies in their control of the Claimant’s confidential information and documents. I was not taken to any evidence which showed that the Claimant knew or ought to have known that the Defendants had mixed confidential information. The order did not compel the Defendants to deliver up to the Claimant material confidential to third parties. This ground might have been a good ground of complaint if the Claimant knew or ought to have known, by the 4 September hearing, that the Defendants had mixed confidential information but, as I have said, the Claimant did not know this nor ought it to have known this, on the evidence before me. I have concluded, therefore, that this ground for the discharge of the Injunction is not made out.
  8.  Ground 8: The Claimant failed to fairly make the point to Nugee J that the Injunction was almost as intrusive as a search order. I am clear that this ground ought to be rejected. The Claimant did make the Injunction application at the 4 September hearing on the basis, effectively, that it was seeking an order almost as intrusive as a search order. Pages 3 to 19 of the Skeleton Argument considered the requirements for a search order in detail. The following exchange took place at the 4 September hearing:
“Nugee J: …I can see it is not as intrusive as an Anton Pillar in enabling you to march in and rummage through someone’s home, but I don’t think it should be described as anything other than quite an intrusive order.
Mr Anderson: My Lord, I entirely accept that…Hence, we have approached it by saying to my Lord: let’s look at this through the lens of the criteria of a search order because I accept this is a quasi-search order.
Nugee J: Yes. Exactly…”
Nugee J was in no doubt about how invasive the without notice order was.
  1.  Ground 9: The Claimant should have told Nugee J that, had the Defendants been at the 4 September hearing, they are likely to have contended that the Claimant was sufficiently protected, at that stage, by orders which preserved documents. The Defendants contend, in effect, on this ground, that the Claimant should have drawn to Nugee J’s attention that the Delivery Up order and the Information Provision orders were not necessary at that stage. On reflection, I do not think that this ground takes matters any further than grounds 4 and 5 above.
  2.  Ground 10: The Claimant did not properly address, in evidence, the likelihood that it might not have been able to acquire LBB. The Defendants make the point that LBB’s vendors had given a mid-range valuation of its intellectual property of £72 million. They also contended that:
  3. i) even though that that was not necessarily the value of the business (that is, of LBB), the Claimant only had access to a US$30 million revolving credit facility;
  4. ii) various individuals represented to them that the Claimant was not financially able to acquire LBB.
They pointed out that the Claimant did not attempt, in due course, to buy LBB.
  1.  Nugee J was taken to the intellectual property valuation at the 4 September hearing (although it is right to note that that was not done in the course of submissions about whether the Claimant could have acquired LBB).
  2.  Whether the Claimant was financially able to acquire LBB (or a controlling interest in it) is disputed. Whether or not the individuals identified by the Defendants as having made representations to them about the Claimant’s finances made those representations is also disputed (at least by those individuals who have made witness statements).
  3.  In support of the Injunction application, Mr Donovan, the Chief Executive Officer of DHX Media Ltd. (of which the Claimant is an indirectly wholly owned subsidiary), made an affidavit in which he said:
“…I anticipate that it could be said by [the Defendants] that [the Claimant] did not have the funds available to purchase [LBB] and the opportunity was passed over – or could not have been exploited anyway – by [the Claimant] for financial and other reasons…”
  1.  At the 4 September hearing, Mr Anderson said:
“…what is not unlikely to be said by the Defendants is well — when the time comes — you had no interest in [LBB] or you didn’t have the money to acquire it and so you can’t complain that we’ve taken that opportunity elsewhere…”
He continued by explaining, expressly, that he was making the point as part of the fair presentation obligation.
  1.  The Claimant accepts that it did not try to acquire LBB in due course but the circumstances in which it did not try to do so are disputed. The Claimant contended, before me, that it did not try to do so, because those who were given the job of considering the acquisition were the very people who left its employment and are now employed (in the case of the Defendants) or may be employed by Moonbug.
  2.  Bearing in mind the continuing issues in dispute which I cannot resolve on the Discharge application (and was not asked to do so), I have concluded that the Claimant did not fail in its fair presentation obligation on this ground. The most difficult aspect of this ground to resolve has been whether or not the Claimant said enough to Nugee J, at the 4 September hearing, about the Claimant’s financial ability to acquire LBB. However, on reflection, having considered everything that Mr Anderson said at the point in the 4 September hearing from which the above quote has been taken, as I have said, I have come to the conclusion that the Claimant did not fail in its fair presentation obligation on this ground.
  3.  Ground 11: The Claimant should have made clear to Nugee J that it is arguable that the Defendants were not fiduciaries. Mr Reade accepted that the Defendants owed the Claimant a duty of fidelity and I understood him not to dispute that it would a breach of that duty if they misused the Claimant’s confidential information. At first sight, it does not seem to matter whether or not the Defendants were fiduciaries (a matter which is apparently disputed in any event). Mr Reade suggested, however, that the remedy for breach of a duty of fidelity is normally limited to damages. He did not take me to anything to support that submission. In my view, if the grounds for making a search-type order are otherwise made out (which, in this context, importantly include a strong prima facie case of a civil cause of action (per Henry Carr J in BMW at [14])), I do not believe that it is material whether or not the Defendants were fiduciaries or only owed a duty of fidelity. I therefore do not believe that this ground for the discharge of the Injunction is made out.
  4.  Ground 12: The Claimant did not fairly present meetings which the First Defendant held with Mr Donovan, Ms Loi and Mr Scherba. In his oral submissions, Mr Reade relied on two meetings; one, on 22 December 2017, with Mr Donovan (“the December meeting”) and the other, on 22 November 2017, with Ms Loi and Mr Scherba (“the breakfast meeting”).
  5.  The First Defendant contends that, at the December meeting, he told Mr Donovan that he “was going to try to raise capital to set up [his] own kid’s video content company”. Mr Donovan disputed that. In his affidavit in support of the Injunction application he said that the First Defendant “did not mention to…at [their] lunch meeting that the reason for his departure was that he was planning to set up the New Venture or that he was looking for third party funding”. The parties agree that I cannot resolve this dispute on the Discharge application.
  6.  However, Mr Reade pointed out that the February letter (written by the Claimant’s solicitors) said, with reference to the December meeting:
“When [the First Defendant] indicated that he intended to seek funding for a new venture, Mr Donovan made it abundantly clear to [the First Defendant] that he was prohibited from doing so during the garden leave period…”
This version of events is consistent with what the First Defendant says and inconsistent with what Mr Donovan says.
  1.  It is not disputed that the February letter was sufficiently material that it had to be fairly drawn to Nugee J’s attention as part of the Claimant’s fair presentation obligation. In his affidavit, in a footnote, Mr Donovan points out that the February letter is consistent with what the First Defendant says but then adds that the letter is incorrect. Nugee J clearly had the February letter in mind (because of what he had read before the 4 September hearing) and the following exchange took place at the 4 September hearing:
“Nugee J: …It’s difficult to see how the letter could have been written in those terms…if nothing was said about it at all.
Mr. Anderson: …He’s…being candid and telling my Lord on oath the best of his recollection now. I take the point, my Lord…
Nugee J: But this is significant because it suggests that [the First Defendant’s] response to the claim will be…: all I was doing was trying to line up possible funding for something to be done once my garden leave had expired.”
I understand the Defendants’ complaint, in this context, to be that the contents of the February letter were not fairly drawn to Nugee J’s attention. I have concluded that the Claimant did fairly draw to the Judge’s attention the contents of the February letter. The relevant contents of the February letter were referred to neutrally in Mr Donovan’s affidavit, albeit in a footnote. Even though referred to in a footnote, Nugee J clearly had the relevant contents in mind. Once the Judge had so indicated, I do not believe that there was any further obligation on the Claimant to draw those contents to the Judge’s attention.
  1.  The breakfast meeting was not referred to at the 4 September hearing. The First Defendant says that, at that meeting, he “shared with [Ms Loi and Mr Scherba] and outlined [his] plan to leave [the Claimant]. [He] told them details of [his] proposal from Raine and that [he] would be setting up a competing business with Rene Rechtman.” Ms Loi and Mr Scherba dispute this version of events. Ms Loi said:
“…[The First Defendant] indicated to Mr Scherba and me that he was considering leaving [the First Defendant]…I recall [the First Defendant] expressing his view that there was plenty of money in the market to set up a new venture…There was no definitive plan presented by [the First Defendant] at all, merely a number of ideas that he was apparently considering…
No specifics about [the First Defendant’s] new venture were discussed at the meeting and [he] did not mention anything about proposals that had been made by Raine…to fund a potential new venture. He certainly did not disclose that he planned to misappropriate confidential information belonging to [the Claimant] or to acquire [LBB] through a new venture in direct competion to [the Claimant].”
  1.  At the hearing before me, Mr Anderson pointed out that, in paragraph 17.4.1 of the Defence, the Defendants contend:
“…The “New Venture” was and remained nothing more than a highly speculative possibility until the end of December 2017/beginning of January 2018…and even then it remained only a possibility until later in 2018.”
  1.  Mr Reade did not explain why the breakfast meeting is material. Bearing in mind what the Defendants say in their Defence about the state of affairs in November 2017, I am not satisfied that what was said at the breakfast meeting, to the extent accepted by the Claimant, was material. Bearing in mind too that what actually took place at the breakfast meeting is disputed, I have concluded that, that the Claimant did not mention it in its evidence in support of the Injunction application or at the 4 September hearing, was not a breach of its fair presentation obligation.
  2.  In the light of all I have said, after careful consideration, I have concluded that the Defendants have not established that the Claimant failed in its fair presentation obligation and that the Discharge application fails on this basis too.
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