Lawyers and lay clients have a duty to give full and frank disclosure to the Court when pursuing applications made without notice to the other party. The recent ruling of Apollo XI Ltd v Nexedge Markets Ltd [2025] has emphasised in stark terms the legal and professional risks of failing to do so. It should therefore be of interest to lawyers, particularly those involved in applying for freezing injunctions and other applications to which the duty applies.
What happened to Apollo XI?
Apollo asserted that Nexedge was in breach of a $10 million loan agreement and had concerns that Nexedge would dissipate its assets to defeat its repayment obligations to Apollo under the agreement. Apollo were granted a freezing order at the initial application hearing which was heard on a without notice basis.
At the return hearing, Mr Justice Saini found that the “main basis” for Apollo’s case at the initial application, which ultimately led to the freezing injunction, was an audio recording made on 11 April 2025. Importantly, however, this recording was never actually heard by the Judge at the without notice hearing. Rather, the court relied on an affidavit provided by Mr Liao, a director of Apollo, which referred to and quoted from the recording. This proved to be the applicant’s (and their lawyer’s) undoing.
Mr Justice Saini had concerns “as to the accuracy of [the affidavit] and the submissions that relied on it” and in fact found that the recording, when listened to in context, did not suggest any plan to dissipate assets or run from the jurisdiction, but rather “suggest[ed] the exact opposite”.
There was also a dispute about the manner in which the recording was obtained and whether it was recorded in breach of the duty of confidence.
A warning for lawyers
The judgment provided an important warning for legal representatives about the active role they should be taking when gathering and presenting evidence to the court.
“..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.”
Apollo’s solicitors had provided the Judge at the initial application with a hyperlink and USB containing the recording, but this was deemed insufficient to satisfy Apollo’s duty, at the first hearing, to give full and frank disclosure.
At the return hearing the freezing order was, unsurprisingly, discharged. The court emphasised that the duty of fair presentation applies to legal representatives as well as their client, and it is not acceptable for legal representative to simply go along with and “[allow] their client to dictate what would be put forward to the Judge”.
Lawyers should not simply act as a hired gun for their clients and ought to be actively considering and scrutinising the information that their clients provide, especially when that information is provided to the court in a witness statement at a without notice hearing. It goes without saying, therefore, that lawyers must ensure that witness evidence, whether provided on behalf of the legal advisors or their clients, does not mislead the court about documents it refers to and is aligned with the position set out in any documentary evidence.
