In an exhaustive judgment, Flaux J found in Boreh v Republic of Djibouti that the court had been misled by a solicitor and his client both at the without notice stage, when applying for a freezing injunction, and then subsequently inter partes. Even when challenged, the deception of the court, and the other party, was maintained.
The case has been widely reported and the misconduct of the solicitor and the claimants was extreme. The case is particularly unfortunate for the individuals involved, but what can we learn from it for the purposes of the law on injunctions? What the case does is provide a useful summary of the relevant duties and issues that come into play in such circumstances.
The duty of full and frank disclosure at the without notice stage is well understood. Flaux J held that the court should apply the same principles by analogy when considering the duty not to mislead the court (which applies at any stage) and the consequences for breach of that duty. He then ran through a series of factors to consider, including:
1. The purpose of the rule is to deprive a wrongdoer of an advantage improperly obtained and serve as a deterrent to others;
2. The court has a discretion to discharge an injunction granted without notice and whether or not to grant fresh injunctive relief;
3. It would only be in exceptional circumstances that a court would not discharge an order where there has been deliberate non-disclosure or misrepresentation;
4. In exercising its discretion, the overriding question for the court is what is in the interests of justice;
5. Bad faith, either of a party or their advisers, would be a most material matter in considering the discharge of an injunction; and
6. It is immaterial if the judge on the without notice hearing might have still granted the injunction if the disclosure had been made.
The judge also considered the “clean hands” doctrine – he who comes into equity must come with clean hands. He considered that, depending on the circumstances, it might have a wider impact than the doctrine that the court should not be misled. So if, all other things being equal, the court was minded to grant a fresh injunction after setting aside the first, the clean hands doctrine might lead the court not to do that. That was not the case here, where the judge considered that there was an immediate and necessary relation between the misconduct – misleading the court – and the equitable relief sought – granting a fresh injunction.
Lastly, on the facts of this case, the judge refused to draw a distinction between the claimant and its solicitor.
Applying all this, the judge found it necessary to demonstrate the importance of honesty and openness by discharging the freezing injunction and he declined to grant a fresh injunction.
Boreh v Republic of Djibouti and others  EWHC 769 (Comm)