Duty of material disclosure and without notice applications
David Burrows explains the duty to disclose relevant documents in the context of urgent ex parte applications and the importance of an old case involving the Princess de Polignac… Continue reading
A judge-made rule: a duty to disclose where only the applicant knows
In these days where disclosure is having a public airing – including for Sir Wyn Wilson’s Post Office inquiry (still a moving target), in Hallett LJ’s inquiry into Tory messaging arrangements [see R (Cabinet Office) v Chair of the UK Covid-19 Inquiry  EWHC 1702 (Admin);  WLR(D) 302] and for Mr Trump and the US justice system (where disclosure is still called ‘discovery’) – this post looks at some of the roots of when a duty to disclose arises.
What happens when a party to proceedings has documents or information which are – or which may be – relevant to an issue in a case? More specifically, in the present context, what is the position where an applicant has information relevant to as issue raised in court without notice to a respondent to the application (ex parte)? The answer to both these questions coalesce over what are a parties’ duties to each other, and to the court.
First, the meaning of disclosure: Civil Procedure Rules 1998 r 31.2 says: “A party discloses a document by stating that the document exists or has existed.” Family Procedure Rules 2010 21.1(1) says the same.
The law in relation to disclosure or documents and of other relevant information in relation to financial order proceedings is based on a statutory interpretation as applied by Lord Brandon in the House of Lords. In Livesey (formerly Jenkins) v Jenkins  AC 424 at 436,  FLR 813 at 822 he explained that Matrimonial Causes Act 1973 (MCA 1973) s 25 set out the factors the court must take into account when deciding how to deal with a couples respective financial order claims. Thus, he said:
“…in proceedings in which parties invoke the exercise of the court’s powers under [MCA 1973 ss 23 and 24], they must provide the court with information about all the circumstances of the case, including, inter alia, the particular matters so specified. Unless they do so, directly or indirectly, and ensure that the information provided is correct, complete and up to date, the court is not equipped to exercise, and cannot therefore lawfully and properly exercise, its discretion in the manner ordained by [s 25(2)].”
He then explained, at pp 437-438, the extent of the court’s duty to the court to provide disclosure of relevant documents and information:
“Each party concerned in claims for financial provision and property adjustment (or other forms of ancillary relief not material in the present case) owes a duty to the court to make full and frank disclosure of all material facts to the other party and the court. This principle of full and frank disclosure in proceedings of this kind has long been recognised and enforced as a matter of practice. The legal basis of that principle, and the justification for it, are to be found in the statutory provisions to which I have referred.”
Duty of disclosure on a without notice application
In the type of circumstances – of a matrimonial financial remedy case – referred to in Livesey’s case and of others which are settled (as with Livesey) or which are progressing to a final hearing, the parties will have had full opportunity to challenge each others’ disclosure. The main concern of this post is what is the position where application is made without notice (ex parte) for an urgent order. Here the common law may step in in the guise of R v Commissioners of Income Tax, Kensington, ex parte Princess Edmond de Polignac  1 KB 486, a Court of Appeal decision which remains authority for what are the duties of the applicant to the court and towards other parties.
Princess Edmond de Polignac was born Winnaretta Singer (1865-1943). She was an American-born heiress to the Singer sewing machine fortune. Prince Edmond de Polignac (pictured back row, left, in the group portrait shown) was her first husband. He died in 1901. She lived a lot of her life in Paris, and used her fortune to fund a wide range of causes, notably a musical salon where her protégés included a variety of Parisian musicians including Debussy, Ravel, members of les Six including Poulenc and Germaine Tailleferre. The case refers to her residence and her property in Kensington.
In April 1916 Income Tax Commissioners made an assessment for the year ending April 5, 1913, in respect of profits arising from foreign possessions. In 1916 the princess applied in judicial review proceedings for prohibition of the Commissioners proceedings’ with this assessment. She said she was not a subject of the King and that she was not resident within the United Kingdom and had not been in the United Kingdom, except for temporary purposes, nor with any view or intent of establishing her residence therein, nor for a period equal to six months in any one year.
In the affidavit on which the prohibition order was obtained the applicant stated that she was a French subject and resident in France and was not and had not been a subject of the United Kingdom nor a resident in the United Kingdom. During the year ending April 1913, she was in the United Kingdom for temporary purposes on visits for sixty-eight days. From the affidavits filed on behalf of the Commissioners and of the surveyor of taxes, who showed cause against the rule nisi, and from the affidavit of the applicant in reply, it appeared that in February 1909, a leasehold house in King’s Road Chelsea, had been taken in the name of the applicant’s brother. The purchase-money for the lease of the house and the furniture amounted to £4,000, and this was paid by the applicant out of her own money. The accounts of household expenses were paid by the brother and subsequently adjusted between him and the applicant.
The Divisional Court, without dealing with the merits of the princess’s application, discharged her prohibition application on the ground that the applicant had suppressed or misrepresented the facts material to her application.
Duty of uberrima fides (utmost faith)
On the princess’s appeal to the Court of Appeal the court held that the rule of courts requiring uberrima fides (now a duty of candour) on the part of an applicant for a without notice injunction applied equally to the case of an application for a writ of prohibition (now a prohibitory order). Since there had been a suppression of material facts – which only she could have known – by the princess in her affidavit, the court would refuse an order; and the court would not therefore go into the merits of the case.
The basis of the decision of the Court of Appeal is summarised by the crusty comment (see especially italicised passage below) of Scrutton LJ (at 514):
“…it has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts — facts, not law. He must not misstate the law if he can help it — the Court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the Court will set aside any action which it has taken on the faith of the imperfect statement.”
Civil Procedure (‘The White Book’) at 25.3.6 cites Scrutton LJ’s judgment as the basis for the assertion of the common law that non-disclosure is likely to lead to discharge of any injunction made without material disclosure.
Modern application of the Polignac decision
A modern application of the importance of full disclosure in a without notice application can be found in R (Durojaiye) v Croydon Crown Court  EWHC 1736 (Admin) (6 July 2022), per Bean LJ in the Divisional Court:
“ In Re Stanford International Bank Ltd  Ch 33 Hughes LJ said that where police or prosecution make an application to the court ex parte the applicant must ‘put on his defence hat and ask himself what, when representing the defendant or a third party with a relevant interest, he would be saying to the judge.’ This important principle corresponds to the duty of candour imposed on an applicant in civil cases for what used to be called ex parte relief established as long ago as 1917 in R v Kensington Income Tax Commissioners ex parte Princess Edmond de Polignac  1 KB 486 and reaffirmed, for example, in Brink’s Mat Ltd v Elcombe  1 WLR 1350.”
Ten years earlier in the Family Division Mostyn J cited the Polignac case in ND v KP (Freezing Order: Ex Parte Application)  EWHC 457 (Fam),  2 FLR 622:
“ The third principle is this. If you do move the court ex parte then you are fixed with a high duty of candour. This is established in many cases. I cite, for example, [Polignac];…; Brink’s Mat Ltd v Elcombe  1 WLR 1350 and Behbehani v. Salem (Note)  1 WLR 723….”
A ‘judge made rule’: Brink’s Mat Ltd v Elcombe
In Brink’s Mat Ltd v Elcombe  1 WLR 1350 (12 June 1987), CA Ralph Gibson LJ (with whom Balcombe and Slade LJJ agreed) set out a number of principles to define the questions of without notice orders made without full material disclosure as follows (at 1356):
“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 [Polignac (above)], 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 [Polignac (above)], per Lord Cozens-Hardy MR, at p 504…
(3) The applicant must make proper inquiries before making the application: see Bank Mellat v Nikpour  F.S.R. 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 per Slade L.J. in Bank Mellat (above), 92–93.
(5) If material non-disclosure is established the court will be “astute to ensure that a plaintiff who obtains [a without notice injunction] without full disclosure … is deprived of any advantage he may have derived by that breach of duty:” see per Donaldson L.J. in Bank Mellat v. Nikpour (above), at 91, citing Warrington LJ in the Polignac case, 509.”
Balcombe LJ explained the relevance of the Polignac rule and its consequences as follows (at 1358):
“On any ex parte application, the fact that the court is asked to grant relief without the person against whom the relief is sought having the opportunity to be heard makes it imperative that the applicant should make full and frank disclosure of all facts known to him or which should have been known to him had he made all such inquiries as were reasonable and proper in the circumstances.
The rule that [a without notice] injunction will be discharged if it was obtained without full disclosure has a two-fold purpose. It will deprive the wrongdoer of an advantage improperly obtained: see Polignac, 509. But it also serves as a deterrent to ensure that persons who make ex parte applications realise that they have this duty of disclosure and of the consequences (which may include a liability in costs) if they fail in that duty.”
So concluded Balcombe LJ, this rule of judge-made law, must not be allowed to become in itself an instrument of injustice. It must not operate without judicial thought even though on the face of it there had been material non-disclosure. There must still be discretion in the court as to its operation:
“Nevertheless, this judge-made rule cannot be allowed itself to become an instrument of injustice. It is for this reason that there must be a discretion in the court to continue the injunction, or to grant a fresh injunction in its place, notwithstanding that there may have been non-disclosure when the original [without notice] injunction was obtained.”
self portrait (via Wikimedia Commons).
Featured image (above): group portrait showing, from left to right, standing: Prince Edmond de Polignac, Princess of Brancovan, Marcel Proust, Prince Constantin Brancoveanu (brother of Anna de Noailles), and Léon Delafosse. 2nd row: Madame de Montgenard, Princesse de Polignac, Countess Anna de Noailles, 1st row: Princess Helen Caraman-Chimay (sister of Anna de Noailles), Abel Hermant (via Wikimedia Commons).