Case Update by Andrew Brown

15 September 2025

By Andrew Brown, Barrister at Radcliffe Chambers.

Ex parte Duty of Disclosure - Apollo XI Ltd v Nexedge Markets Ltd [2025] EWHC 1488 (KB)

On 17 June 2025 , Saini J gave judgment on the return date of an interim freezing injunction wherein he discharged the order in circumstances where he held that evidence relied upon at the ex parte was potentially unlawful as a recording of the respondent's director made without consent or knowledge that shocked the Court's conscience.

In August 2024, Apollo, a BVI registered company, provided Nexedge with a 10 year facility agreement. On 10 April 2025 the relationship between the companies became strained, and on 11 April 2025 a laptop of Apollo which had been left in Nexedge's offices began a four-hour video and audio Zoom recording within listening distance of Nexedge's director who was making various calls to third-parties. On 14 April 2025, Apollo served a default notice of the loan on Nexedge. On 16 April 2025, Apollo applied for a worldwide freezer, and on excerpts of the four-hour recording contending it occurred as an automatic process. The excerpts of the recording exhibited were said to indicate an intention by Nexedge to dissipate its assets and liquidate itself. The interim injunction was granted.

At the return, Nexedge applied for discharge on a failure of full and frank disclosure. Apollo's explanation for how the recording was made shifted in its new evidence, and the judge was not satisfied with the veracity of its explanations (although could not make a finding of fact without cross examination). The judge found the full text of the recordings did not indicate any risk of dissipation. Apollo's counsel made submissions that even illegally obtained recordings were still admissible as evidence under English law, but the Court was less concerned with the admissibility point and more with the shocking behaviour of Apollo in obtaining the recording and its manner of presentation to the Court.

The freezer was discharged for a failure to give full and frank disclosure and meet the good arguable case test. Saini J considered there to be 'no evidence, let alone solid evidence' of dissipation.

Take-Aways:

• The duty of full and frank disclosure at an ex parte hearing must be followed, and the selective use of elements of evidence without context can come back to bite the applicant with potentially profound cost consequences.
• The granting of injunctions is discretionary, and behaviour which runs contrary to the conscience of justice will overwhelm mere rules of admissibility of evidence - follow the spirit of the law not merely the text.
• Use common sense when bringing an application ex parte.

Illusory Cost Budget Repercussions - Hunt v Oceana Capital Reserves Ltd & IPS Law Ltd & Christopher Farnell [2025] EWHC 837 (Ch)

On 10 April 2025, Master Brightwell refused relief from sanction where the budget in question was 'illusory' as the figures in question were demonstrably false and not capable of justification.

The Claimant brought a fraud claim against Oceana for £1.9million, and a claim for dishonest assistance against IPS Law and Mr Farnell as the solicitor handling the sums. Default judgment was entered against Oceana but not the firm. The Claimant filed his cost budget by the 4 February 2025 deadline. IPS and Mr Farnell filed a budget 30-minutes late with a statement of truth signed by Mr Farnell. IPS' Precedent H cover page contained figures bearing a striking similarity to those appearing in the Claimant's schedule, but did not match the figures included in its own stage breakdowns. IPS failed to file a Precedent R or a completed DRD. Mr Farnell filed a statement seeking relief from sanction, and claimed amongst other things that software malfunction led to mistakes, but failed to address how the specific figures in the budget were calculated.

When considering the issue of relief from sanctions, the Master found that the figures on the face of the Precedent H were deliberately inflated to match those of the Claimant, and that it was reasonable to assume the detailed breakdowns were lifted from a different budget and hastily inserted into the budget. He considered this to be a serious breach, that the reason for the breach was not adequately addressed by Mr Farnell other than being analogous to 'the dog ate my homework,' and that the budget (and a revised budget filed before the CCMC) did not accurately or truthfully reflect the potential costs. Relief was denied, with the effect being that IPS' budget was limited to the applicable court fees.

Take-Aways:
• Even minor temporal breaches can be serious and significant depending on the circumstances;
• Don't make up the figures in a budget without justification as this can constitute a serious breach;
• If facing a dishonest assistance claim, it doesn't aid credibility to appear dishonest as early as the cost budgeting stage.