2025 in Review: Civil fraud

In 2025, two High Court rulings, Apollo XI Ltd v Nexedge Markets Ltd and J&J Snack Foods Corp & ICEE Corp v Ralph Peters & Sons Ltd highlighted the strict nature of the duty of full and frank disclosure in without notice applications.

In both cases, the court discharged freezing injunctions after finding that the applicants had failed to meet the requisite standard of candour and fair presentation. These decisions serve as a clear reminder that when seeking urgent relief without notifying the other party, applicants must present all material facts – including those that may undermine their case, and ensure the court receives a balanced and accurate account.

The Legal Framework: Full and Frank Disclosure

Freezing injunctions are among the most powerful tools in civil litigation, designed to preserve assets pending the resolution of a claim. As a discretionary and equitable remedy, an applicant must meet a high standard of candour, especially when seeking relief without notice because of the departure from the basic principle of fairness: to hear both sides before reaching a decision.

The law on the duty of full and frank disclosure/fair presentation is clear and well established. In short, applicants are required to:

• Disclose to the judge all material facts, including those that may undermine their case;
• Raise legal and procedural issues, such as jurisdictional challenges;
• Present evidence objectively, avoiding advocacy or selective presentation; and
• Conduct reasonable enquiries to uncover relevant facts.

The 2025 Cases

Apollo v Nexedge

The case of Apollo v Nexedge serves as a cautionary tale for litigants seeking freezing injunctions. Apollo had loaned $10 million to Nexedge and alleged that Nexedge intended to dissipate its assets offshore without repayment. The application for a freezing order was based primarily on a recording of a Nexedge director, which Apollo claimed showed intent to move assets out of the jurisdiction.

Apollo asserted that the recording was obtained innocently through routine Zoom monitoring. However, at the return date, the Court found:

• The recording was actually the result of unauthorised surveillance and was made without the director’s knowledge, which raised ethical concerns.
• The contents of the recording were misrepresented at the hearing of the application for the injunction.
• Apollo failed to disclose that it had real-time access to Nexedge’s financial records under the loan agreement – meaning it could have monitored any suspicious activity.

The Court discharged the freezing order and granted indemnity costs against Apollo, holding that had the contents of the recording and the circumstances in which it had been obtained been presented fairly and in full context, the injunction would not have been granted.

J&J v Ralph Peters & Sons Ltd (RPSL)

In J&J v RPSL, the court granted a worldwide freezing injunction and imaging order in an intellectual property dispute involving the alleged infringement of the “Slush Puppie” trademarks. The claimants sued RPSL and its director as accessories to the alleged infringement by a subsidiary of RPSL, who were not party to the claim. The practical effect of the freezing order was to freeze £20 million.

RPSL and the director successfully applied to discharge the order on the grounds of material non-disclosure and unfair presentation. This was for a number of reasons, including:

1. Any hearing that takes place without the respondents’ knowledge is exceptional and needs to be justified. In this case, the claimants had failed to justify the need for the applications to be made without notice.
2. The claimants had not fairly presented all of the arguments that could be raised by the defendants in defence of the claim. For example, the claimants had failed to refer to the principle that accessories to others’ wrongdoing are only liable for profits they receive. The freezing injunction had been granted based on profits that another party had made, not on the defendants’ potential liability.
3. The claimants relied on alleged examples of dishonestly to argue that the defendants would make themselves judgment-proof and therefore a freezing injunction was required. However, it is a well-established principle that dishonesty is not in itself enough to justify the conclusion that there is a real risk that a potential judgment could not be satisfied due to dissipation of assets (a requirement before obtaining a freezing injunction).

These omissions, and other serious failures, led directly to the (i) grant of a worldwide freezing order for a “hugely excessive sum” and (ii) an imaging order granting access to offices of a non-party and imaging of its documents. The judge decided that the orders should be discharged.

Practical Takeaways

Both cases stress a critical point: the duty of fair presentation is not just a procedural nicety. The courts expect transparency, objectivity, and integrity from those seeking relief ex parte. It is not just the applicants who owe this duty; legal representatives must scrutinise the evidence and the client’s instructions. As Saini J observed in Apollo v Nexedge, (emphasis added) “legal representatives must satisfy themselves that the factual allegations being put forward by a lay client are in fact properly evidenced by the material, rather than simply accepting a client’s assertions as to what the material shows. The legal representatives also need to satisfy themselves that they have been provided with sufficient evidence of the factual background such that they can be confident that they will be able to provide a fair presentation to the judge.”

We await further decisions in this area, including the recent case of Pliego v Astor Asset Management, where the duty of full and frank disclosure is also in issue.