Hughes LJ said: ‘it is essential that the duty of candour laid upon any applicant for an order without notice is fully understood and complied with. It is not limited to a duty not to misrepresent. It consists in a duty to consider what any other interested party would, if present, wish to advance by way of fact, or say in answer to the application, and to place that material before the judge. The duty applies to an applicant for a restraint order under POCA in exactly the same way as to any other applicant for an order without notice. Even in relatively small value cases, the potential of a restraint order to disrupt other commercial or personal dealings is considerable. The prosecutor may believe that the defendant is a criminal, and he may turn out to be right, but that is yet to be proved. An application for a restraint order is emphatically not a routine matter of form, with the expectation that it would be routinely granted. The fact that the initial application is likely to be forced into a busy list, with very limited time for the judge to deal with it, is yet further reason for the obligation of disclosure to be taken very seriously. In effect, the prosecutor seeking an ex parte order must put on his defence hat and ask himself what, if he were representing the defendant or a third party with a relevant interest, he would be saying to the judge, and, having answered that question, that is what he must tell the judge.’
Judges:
Sir Andrew Morritt Ch, Arden, Hughes LJJ
Citations:
[2010] EWCA Civ 137, [2011] 1 Ch 33, [2010] Lloyds Rep FC 357, [2010] 3 WLR 941, [2010] BPIR 679, [2010] Bus LR 1270
Links:
Statutes:
Cross Border Insolvency Regulations 2006
Jurisdiction:
England and Wales
Citing:
Appeal from – In re Stanford International Bank Ltd and Others ChD 3-Jul-2009
Sir Andrew Morritt explained the relationship of the Regulation, the Model Law, and the still earlier European Convention on Insolvency Proceedings: ‘To understand the arguments and explain my conclusion it is necessary to consider the evolution of . .
See Also – In re Stanford International Bank Ltd and Others ChD 9-Jul-2009
One of the parties wanted to request permission to appeal, but had not done so at the hearing. The court considered whether it had power to do so at a later hearing.
Held: It did not. The Rules set out a deliberately prescriptive regime which . .
Cited by:
Appeal from – Stanford International Bank Ltd v Director of The Serious Fraud Office SC 15-Feb-2012
The Court heard an interim application to decide whether an appeal to the Supreme Court existed under the 2002 Act. A restraint order had been made as to the appellants assets.
Held: The statutory provisions substituting the Supreme Court for . .
Cited – AB and Another, Regina (on The Application of) v Huddersfield Magistrates’ Court and Another Admn 10-Apr-2014
The claimants challenged the lawfuness of search warrants issued by the respondent court. They were solicitors, and were related to a person suspected of murder who was thought to have fled the country. The officers were looking for evidence that . .
Cited – Barnes (As Former Court Appointed Receiver) v The Eastenders Group and Another SC 8-May-2014
Costs of Wrongly Appointed Receiver
‘The contest in this case is about who should bear the costs and expenses of a receiver appointed under an order which ought not to have been made. The appellant, who is a former partner in a well known firm of accountants, was appointed to act as . .
Cited – Mills and Another, Regina (on The Application of) v Sussex Police and Another Admn 25-Jul-2014
The claimants faced criminal charges involving allegations of fraud and corruption. They now challenged by judicial review a search and seizure warrant saying that it was unlawful. A restraint order had been made against them and they had complied . .
Cited – Haralambous, Regina (on The Application of) v Crown Court at St Albans and Another SC 24-Jan-2018
The appellant challenged by review the use of closed material first in the issue of a search warrant, and subsequently to justify the retention of materials removed during the search.
Held: The appeal failed. No express statutory justification . .
Lists of cited by and citing cases may be incomplete.
Insolvency, Litigation Practice
Updated: 04 December 2022; Ref: scu.401845