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The “Sin of Omission”- the importance of full and frank disclosure

In a recent case that came before the High Court in the Republic of Ireland, the Court strongly criticised an applicant who obtained an interim injunction that was “completely unnecessary” and in breach of its duty of full and frank disclosure.

Although an ROI decision, this case serves as a healthy reminder of the core principles of emergency injunctive relief; that full disclosure must be given and that such relief should only be sought when absolutely necessary.

In this case (Dardania Holdings Ltd v Advanced Life Safety LTD T/A Advanced Fire), the Plaintiff owned a number of rental properties and the Defendant supplied and maintained fire alarm systems. After a fault with a fire alarm was raised by a tenant, Dardania contacted Advanced Fire to request the master codes to the alarms so that it could be fixed.

Advanced Fire refused this request on the basis that sharing the master codes would provide Dardania with the codes for thousands of alarms it had installed across the country. Instead, they made a verbal offer to send out an engineer to fix the issue at a cost of €150 plus VAT. Dardania initially accepted the offer, but various issues arose and they continued to demand the master codes to the alarms.

Dardania subsequently applied ex parte (without notice) to the High Court for an interim injunction to recover the master codes. They claimed that there was an “imminent threat to life” from the faulty fire alarm and that there was no other method of fixing the alarms. They also claimed that Advanced Fire’s codes were essential to the maintenance of the alarms and that Dardania had paid the €150 requested.

Conveniently, Dardania failed to make reference to an email later sent by Advanced Fire that repeated the offer to attend the site to fix the problem. The application also failed to mention the verbal offer made much earlier by the Defendant. Unsurprisingly, the Court granted the interim injunction based on the evidence before it. The matter was then referred for a hearing where the Defendant had the injunction vacated. Dardania sought to recover its costs of the injunction application, but the Defendant objected on the basis that Dardania failed to disclose key information to the Court.

The Court was scathing in its assessment of the Plaintiff’s conduct in this matter, refused its claim for costs and ordered it to pay those of the Defendant. It was held that Dardania had clearly failed to provide full and frank disclosure in its application and that the injunction was entirely unnecessary since the Plaintiff did not need the codes to fix the alarm. Indeed, Dardania was able to engage a third party to fix the alarm who did so without the benefit of any codes.

The Judge went so far as to say that “the sin of omission is no less a grievous sin in this regard and, given the evidence before it, this Court must signal its severe displeasure in the very clearest of terms at what occurred in the present case…”

This case raises two key points of principle for applicants to always be mindful of:

  1. There is an inherent duty on an applicant to give full and frank disclosure, particularly when making ex parte applications.  You must disclose all matters that are material to the court in deciding whether to grant the order and, if so, on what terms; and
  2. An injunction should only be sought if absolutely necessary on the merits of the case. Specialist legal advice should always be sought before embarking on such a step.

The experts at Mills Selig have significant experience in injunctive proceedings. If you require specialist advice on a matter that may require urgent court action, click here:

A copy of the published judgment can be read here.

Editorial prepared by: Rebecca Logan, Solicitor, Mills Selig

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