When is disclosure not full and frank?
4 August 2021
Southern Housing Group Ltd v Stephen Berry (County Court at Clerkenwell and Shoreditch, 25 February 2021) dealt with an important issue for anyone who is bringing a without notice application, namely what is full and frank disclosure?
Mr Berry, an assured tenant of the claimant for approximately 20 years had been embroiled in a long running dispute with his neighbours. There were allegations and cross allegations but the claimant decided Mr Berry was the main protagonist.
In December 2020 an application was made for an injunction on a without-notice basis relying on a witness statement of a housing officer which included detailed allegations of nuisance made by two named neighbours and reference to one unnamed one.
At the initial hearing on the 5 January 2021 the injunction was granted. At the return hearing on 14 January 2021 an issue was raised of material non-disclosure by the claimant. There was no transcript of this hearing and seemingly both sides disagree about what was said on the day. What is known is that a third hearing was set for the 25 February 2021 to determine if the original injunction order should be set aside.
At the third hearing it was apparent that the claimant knew, but did not disclose, that the defendant had mental health issues. Additionally, the claimant was aware that the defendant had been making allegations against his accusers, these allegations concerned nuisance and threats to kill. They also knew these had been passed to the police and were being investigated.
There is a duty on the part of the claimant when making a without-notice injunction that there should be full and frank disclosure and paragraph 12 of the judgement (which draws on principles laid out in Tugushev v Orlov  EWHC 2031) provides a good summary of the claimant’s duties.
It is not a duty that requires the claimant to include all information but to include that which should be included within a reasonable degree of relevance. On these facts it is apparent that mental health issues which seem to have been exacerbated by Mr Berry’s interactions with his neighbours and his allegations against them which have been passed to the police clearly fall within that scope.
When claimants attend without-notice hearings and seek to present their case, it is important that they present the facts in a balanced way which means drawing the court’s attention to evidence and arguments that the other party may deploy. The judge was critical of the housing officer in this case as they appeared to approach it in a “partisan” way and left out plainly relevant information.
Claimants also need to be mindful of their obligations to the court and the other side from the outset as an already complicated matter can be made more complex and expensive if the upmost care is not taken.
Finally, it would be sensible prior to making the application and appearing at court to consider what evidence, within your knowledge, might impact upon the Judge’s decision to grant the application and if it would be likely to impact on the judge’s decision, that evidence must be included.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at August 2021.