The Duty of Full and Frank Disclosure in Without Notice Interim Applications

September 26, 2025

It is a long established principle in litigation that a party making a without notice (formerly ex parte) application has a duty of full and frank disclosure. The purpose of this is to ensure a fair hearing in circumstances where the Respondent to the application is not present.

Failing to comply with this duty has serious consequences and judges have discretion to deprive the Applicant of the remedy they sought; therefore, it is imperative that this duty is fully understood and considered.

What is a without notice application?

Pursuant to paragraph 23.4 of the Civil Procedure Rules, a copy of the application notice must ordinarily be served on the Respondent as soon as practicable after it is filed. This is known as a “with notice” application. By contrast, a without notice application is made to the court without serving notice on the other party. These types of applications are often used in urgent situations where notice might defeat the purpose of the application for example where there is risk that the Respondent might destroy evidence or hide assets that are crucial to the dispute.

Because the Respondent is not present at the hearing, the court relies entirely on the Applicant’s presentation of the case. This is where the duty of full and frank disclosure becomes critical.

What must be disclosed?

Where an application is made without notice, the applicant must disclose all matters which are material to the court in deciding whether to grant the order and, if so, on what terms. This is known as the duty of full and frank disclosure. A fact is “material” if it would influence the judge when making the order. What is material depends on the facts of the case and complexity of the matter; it may be matters of fact, or law that support or are adverse to the application. In essence, the Applicant must act as if the Respondent were present, disclosing not only the strengths of their case and reasons why the interim relief should be granted, but also any weaknesses or defences that might influence the judge’s decision (for example the existence of related proceedings in other jurisdictions). As clarified in Alliance Bank v Zhunus [2015] EWHC 714 (Comm) materiality is judged by the court, not by the Applicant or by their legal representatives.

Paired with the duty of full and frank disclosure, is the duty to carry out proper enquiries to ensure that this duty it met. Importantly, full and frank disclosure includes not only matters which the Applicant is aware of but, also matters that the Applicant would have been aware of had reasonable enquiries been made. This means that the Applicant must take active steps to investigate and present a balanced and accurate picture to the court. While the Applicant must highlight potential issues or defences, they are not required to provide a detailed analysis of each point to be made before the judge.

Consequences of breach

If an Applicant does not disclosure relevant information and this omission leads to the court being misled, or deprived of an accurate view of the facts, then the Applicant will be in breach of the duty of full and frank disclosure. Consequences of breaching the duty include:

  • Setting aside the interim relief granted
  • An order for the Applicant to pay the Respondent’s costs on an indemnity basis
  • In serious cases, a finding of contempt of court

The court will always consider the overriding objective and the need for proportionality when determining the appropriate response to the breach.

Key takeaways

Applicants and their solicitors have further obligations when making a without notice application. This reflects the fact that they are asking the court to make an order without hearing evidence from the Respondent which departs from the established principle of fairness. The overriding consideration of the court is always the interests of justice. Applicants must approach the court with candour and diligence, ensuring that the judge is provided with a complete picture. To ensure compliance, if you think it might be relevant, then you should bring it to the judge’s attention!

If you would like to discuss the content of this article further, please contact us to speak to a member of our Dispute Resolution Team for tailored advice.

Stephen Baker
Partner, Head of Dispute Resolution
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Florrie Aylward
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This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.

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