Nicola McKinney on why full & frank disclosure in ex parte applications is central to maintaining judicial integrity
- The duty of full and frank disclosure in ex parte applications is central to maintaining judicial integrity. Material facts are those that could influence the judge’s decision. Determining what is material can be complex, especially in high-stakes commercial litigation.
- Two recent cases illustrate the fine line in assessing materiality. In Reid, a date error was deemed immaterial due to its obvious nature and lack of impact. In contrast, Ivanishvili involved a concealed limitation defence that misled the court, leading to a finding of material non-disclosure.
- Courts emphasise proportionality—neither omitting key facts nor overwhelming the court with irrelevant details. Both applicants and respondents must exercise judgement and restraint to avoid misleading the court or diluting strong arguments.
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
