Without Notice Applications: Full And Frank Disclosure After Astor v Pliego

Introduction

Ex parte orders including freezing orders, proprietary injunctions and similar interim measures, remain among the most powerful remedies available to the courts. These orders preserve the status quo as regards an opposing party's assets, so prevent dissipation before they are even aware that legal proceedings have commenced. However, the Court's ability to make an order without first hearing from a party directly affected by it inherently carries a risk of procedural unfairness. This is particularly so given the onerous conditions often imposed by such measures.

To counterbalance that risk, applicants bear a duty of full and frank disclosure: a positive obligation to put before the court all facts and matters which might reasonably be considered material to their application, whether helpful or harmful to their position. This obligation extends to matters which are both known to them and those which should have been known to them had reasonable and proper inquiry been made. The duty is not a procedural nicety; it is a substantive safeguard for the integrity of the without-notice process and fundamental to due process.

The Court of Appeal's decision in Astor Asset Management 3 Ltd & Ors v Pliego & anor [2025] EWCA Civ 1060 provides a timely reminder of the scope of that duty, particularly where the facts underlying such applications include disputed allegations about an applicant's probity or financial capacity. The Judgement offers a calibrated approach to what must be disclosed and how such issues should be presented to the Court when time is short, and the stakes are high.

Background

The dispute in Astor centred on a contested Stock Loan Agreement involving shares (worth more than US $400 million) in the Mexican company, Grupo Elektra SAB De CV, which were pledged as security for loans advanced by Astor 3 to RBS. Pliego and RBS applied for proprietary and worldwide freezing injunctions without notice, on the basis that: (i) as a result of fraudulent misrepresentations of Vladimir Sklarov (the Second Defendant) and his associates, they were persuaded to transfer shares; and (ii) there was a risk that the Defendants could deal with or dispose of the collateral shares or the proceeds thereof before the claim could be resolved by the Court.

The Orders sought by the Pliego and RBS were granted, subject to the usual cross-undertakings in damages. Upon being served with the Orders, Astor 3 et al sought their discharge, alleging that Pliego and RBS had failed to disclose material adverse matters to the Court; in particular, material facts about their own integrity and financial resources, which were alleged to be relevant to the adequacy of the undertakings.

The High Court rejected the challenge, finding no breach of duty. On appeal, the central question was whether Pliego and RBS's treatment of these contested allegations in their application met the required standard of candour.

The Duty of Full and Frank Disclosure

The principles guiding applicants' duty of full and frank disclosure are well established – most notably in Brink's Mat Ltd v Elcombe and others [1988] 3 All ER 188. The duty is broad: an applicant must disclose any fact or matter which might reasonably influence the court's decision to grant relief. This includes points of law, procedural history and, crucially in Astor, evidence that might call into question the value of any cross-undertaking in damages.

The rationale is clear. In the absence of submissions from the affected party, the Judge relies entirely on the applicant for the factual and legal matrix. A selective presentation of risks which distorts that matrix may critically undermine the fairness of the process.

The Court of Appeal's Approach

The Court of Appeal accepted that allegations touching on an applicant's probity and financial standing may be material, especially when the Court must evaluate whether the cross-undertaking has substance. However, it drew an important distinction between disclosure and determination.

1. Disclosure Without Mini-Trial

Urgent without notice hearings are not the forum for resolving heavily contested factual disputes. The applicant's obligation is to inform the Court of such matters, summarising them accurately and fairly, so that the Judge can take them into account. Determinations as to their credibility belongs at the return date, not the ex parte stage.

2. Materiality as the Decisive Test

The duty to provide full and frank disclosure does not extend to every adverse fact, however peripheral. The touchstone is materiality: would the matter have been capable of affecting the Court's decision to grant or withhold relief? This refocuses the duty on substance rather than volume.

3. Fortification as a Proportionate Safeguard

Where there is genuine doubt about the applicant's ability to meet the cross-undertaking, the appropriate course may be to order fortification, such as a payment into court or a bank guarantee, rather than refuse an application for urgent relief altogether. While the adequacy of such fortification may be considered in detail at the return date when the Court has the benefit of submissions and evidence from the respondent, this should still be considered by the Court at the without notice stage and, if appropriate, short-term fortification should be ordered to protect the respondent from the risk of loss in the interim.

4. Avoiding Scatter-Gun Allegations

The Court cautioned against non-disclosure challenges built on a diffuse or speculative list of grievances. Materiality, again, is key: the complaint must be both specific and relevant to the relief granted. In Astor, the Court of Appeal considered that the appellants were guilty of such as scatter-gun approach, as a "substantial number" of the points they relied on "were so far removed from being big ticket items that they could not assist, even on some cumulative basis, in establishing material non-disclosure" [18].

Having had regard to these factors, the Court of Appeal found that there had been no material non-disclosure, and the appeal was dismissed. In particular, the respondents had failed to establish any risk that the Claimants would be unable to discharge the cross-undertakings they had provided if called upon to do so.

Analysis

The decision in Astor reflects a pragmatic balancing act. The Court reaffirmed the rigour of the duty of full and frank disclosure yet resisted an approach that would turn urgent applications into "mini- trials".

It is also notable that the Court of Appeal reinforced the principle that the duty of full and frank disclosure is, at its core, about candour. It does not go so far as to require an applicant to prove or disprove any and every point that might be raised by an opposing party had they been on notice of the application.

The emphasis on fortification as a middle ground is also significant. It allows the Court to safeguard the Respondent's position without derailing an application for the urgent relief – thus achieving a balance between the parties' competing interests. This reflects the judiciary's a broader commitment to proportionate case management, which seeks to uphold fairness without sacrificing the effectiveness of urgent remedies.

Why the case matters

From a doctrinal perspective, Astor refines the framework for assessing whether a non-disclosure is material and how it can be handled. It confirms that:

• The applicant's role is to give the judge the full picture, including matters that may be disputed or adverse to their position.
• The court will not expect contested factual issues to be resolved at the ex parte
• If material non-disclosure has occurred, this will usually lead to the discharge of the order – albeit the Court retains a discretion to continue or regrant the relief sought by the applicant.

From a practitioner's point of view, the decision underscores that the most persuasive without-notice applications are those that acknowledge complexity rather than present an artificially clean case. Attempting to supress or sidestep adverse material, risks a loss of credibility that may be more damaging than the material itself.

Conclusion

Astor v Pliego stands as a nuanced reaffirmation of the duty of full and frank disclosure. It acknowledges the realities of urgent litigation, where speed is essential and facts are often contested, whilst preserving the integrity of the without-notice process through transparency and proportional safeguards.

For legal professionals, it is a reminder that the strength of an ex parte application lies not in how seamlessly it can be presented, but in how candidly it confronts the full range of relevant facts. In the end, credibility before the court may be the most valuable currency an applicant possesses.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.