[1988] 3 All ER 178

An applicant who applies ex parte for a Mareva injunction is under a duty to the court to make the fullest disclosure of all material facts, including any defence he has reason to anticipate may be advanced. If he does not comply with that duty he will normally be deprived of the benefits of the order without consideration of the merits and irrespective of whether the non-disclosure was innocent or deliberate or whether he would have obtained the order if he had made full disclosure. However, if the injunction is discharged because of material non-disclosure the court has a discretion to grant a second injunction when all the facts are placed before it and a second injunction may well be granted if the non-disclosure was innocent and an injunction could properly have been granted on the disclosed facts. On the other hand, the applicant will be refused a second injunction if he has failed to press on with his action as quickly as possible (see p 181 d to g, p 183 d e and p 185 g j to p 186 f, p 187 b c g h and p 188 c d, post).
   Bank Mellat v Nikpour [1985] FSR 87 followed.
   R v Kensington Income Tax Comrs, ex p Princess Edmond de Polignac [1917] 1 KB 486 applied.

Notes
For Mareva injunctions, see 37 Halsbury's Laws (4th edn) para 362, and for cases on the subject see 37(2) Digest (Reissue) 474-476, 2947-2962.

Interlocutory appeal
The plaintiffs, Lloyds Bowmaker Ltd, as assignees of Hamilton Leasing Ltd, brought an action by writ issued in May 1984 against the defendants, Britannia Arrow Holdings plc (Britannia Arrow), claiming £63,138.09 as arrears of rental charges in respect of 27 agreements for the lease of telephone equipment made between Hamilton Leasing Ltd and Britannia Arrow between September 1981 and July 1983. Britannia Arrow subsequently issued a third party notice against Mr A G Lavens who traded as Commend Communications (the business name of a company called Sprigchoice Ltd) alleging, inter alia, that they had entered into the agreements, under which unreasonable rental charges had been levied, in reliance on the advice of Mr Lavens who purported to be an expert178 on telephone equipment. On 20 August 1984 Kennedy J, on an ex parte application by Britannia Arrow, granted a Mareva injunction against Mr Lavens and Sprigchoice Ltd restraining the disposition of certain assets. Mr Lavens later applied for the discharge of the Mareva injunction on the general ground that it had been obtained as a result of a material non-disclosure by Britannia Arrow. Sir Neil Lawson sitting as a judge of the High Court dismissed the application on 2 July 1986, and Mr Lavens appealed with leave against his decision. The facts are set out in the judgment of Glidewell LJ.

18 March 1987. The following judgments were delivered.

GLIDEWELL LJ (giving the first judgment at the invitation of Dillon LJ). By a specially indorsed writ issued in May 1984 the plaintiffs, Lloyds Bowmaker Ltd, as assignees of Hamilton Leasing Ltd, claimed £63,138á09 as arrears of rental charges under 27 agreements for the leasing of telephone equipment made between Hamilton Leasing and the defendants, Britannia Arrow Holdings plc, between September 1981 and July 1983.
   Britannia Arrow's defence in summary is that the rental charges under the agreements were grossly excessive and unfair and that Britannia Arrow had entered into the agreements in reliance on the advice of Mr Lavens, the third party, who purported to be an expert in the field of telephone equipment and was alleged to have acted as the agent of Hamilton Leasing. The defence claims rescission of the agreements and counterclaims for negligence by Mr Lavens.
   On 6 August 1984 Britannia Arrow issued a third party notice against Mr Lavens making allegations to which I shall refer later. On 20 August 1984 Kennedy J, on Britannia Arrow's ex parte application, granted a Mareva injunction against Mr Lavens and against a company called Sprigchoice Ltd. The injunction restrained Mr Lavens and the company from 'disposing of or removing from the jurisdiction or otherwise disposing of or dealing with or parting with their assets within the jurisdiction' in excess of £681,686, and save for the sum of £1,000 a month. It also restrained Mr Lavens and the company from disposing of or dealing with the sum of £500,000 or other receipts in respect of 27 rental agreements. Mr Lavens and the company were also required to disclose information which would, Britannia Arrow hoped, enable the money received by Mr Lavens by virtue of the transactions to be traced.
   These injunctions were varied on 20 December 1984 and again on 1 May 1985, so as to allow various payments for Mr Lavens's costs, but otherwise remain in force.
   On 2 July 1986 Mr Lavens and Sprigchoice applied on summons to Sir Neil Lawson for the discharge of the Mareva injunction on the general ground that it was obtained as a result of material non-disclosure by Britannia Arrow. The application was dismissed. With the leave of Sir Neil Lawson, Mr Lavens now appeals against that decision.
   The third party notice alleges that Mr Lavens, trading as Commend Communications, specialised and had expertise in the supply and installation of telecommunications equipment for office purposes. It is said that in February 1981 Britannia Arrow, by Mr White (their company secretary), sought Mr Lavens's advice as to the supply of telecommunications equipment for their offices, and that he agreed to give such advice. It is alleged that Mr Lavens knew, or ought to have known, that neither Mr White nor Mr Tyler, the Britannia Arrow office manager, had any expertise in matters relating to telecommunications equipment, and that they would rely on him to advise them, amongst other matters, whether the prices charged to Britannia Arrow for such equipment were fair.
   In February 1981, on Mr Lavens's advice, Britannia Arrow agreed to acquire an internal179 office telephone system. The equipment was supplied by Commend Communications to Hamilton Leasing, from whom Britannia Arrow agreed to lease the equipment. Thereafter Britannia Arrow entered into 26 further similar agreements with Hamilton Leasing, all relating to further equipment supplied by Commend Communications. The rental charge made by Hamilton Leasing was of course related to the price charged by Commend Communications for the equipment and its installation. In each case the rental agreement was for a period of five years. It is alleged that on the first agreement the price charged to Hamilton Leasing was reasonable and thus the rental charge was approximately what might reasonably be expected. However, starting with the second agreement, it is alleged that Commend Communications, to Mr Lavens's knowledge, charged to Hamilton Leasing prices which were excessive and which gradually became less and less reasonable. The effect was that the rental charge being made by Hamilton Leasing vastly exceeded what would have been reasonable. Thus, in relation to the penultimate agreement entered into on 14 July 1983, it is alleged that the quarterly rental charged was £3,119á14, whereas a fair and reasonable quarterly rental would have been the sum of £53á65. In total it is alleged that Britannia Arrow under the agreements were required to pay total rentals over the five-year period of some £724,486, whereas a reasonable total rental would have been the sum of £42,800á40.
   Britannia Arrow's claim against Mr Lavens is put in a number of alternative ways: first, it is alleged as breach of an implied term in a contract between them second, in negligence third, as the result of misrepresentation (the representation alleged being implied, not expressed) and, finally, in deceit.
   The material before Kennedy J, in addition to the pleadings to which I have referred, consisted of three affidavits. The deponents were Mr White, Mr Tyler and Mr Simmonds, a telecommunications consultant whose evidence was that the prices charged were excessive and unreasonable. Mr White's evidence was to the effect that he sought Mr Lavens's advice in relation to the first agreement, and that he signed that agreement in the belief that the rental was a fair, genuine and reasonable rental. Thereafter, Mr White left it to Mr Tyler to sign the agreements. Mr Tyler's evidence was that he merely signed the agreements as an acknowledgment that the equipment had been installed. He said that he gave no attention to the rental figure because it was no part of his responsibility to check it. He did not inform Mr White of the amount being charged. Moreover, Mr Tyler alleged that he only had authority to expend sums up to £200 without reference to higher authority and he could not believe that Mr Lavens thought he had authority to incur obligations of the size represented by the various agreements.
   Mr White's affidavit exhibits a number of specimen rental agreements in which the supplier of the equipment is described as Commend Communications. In para 13 of his affidavit Mr White says:

At the end of his affidavit Mr Tyler says:

   In Mr White's affidavit he exhibits a copy of a telex from Hamilton Leasing in which that company say that they sometimes paid by cheque made out to Sprigchoice Ltd. Mr White also exhibits a report on Sprigchoice which reveals it to be a £100 company of which Mr Lavens is the sole director and owner of 99 shares, his wife being the owner of the remaining share. Mr White also produces the accounts of Sprigchoice for the years 1981 to 1983.

180

   Following the grant of the Mareva injunction, third party directions were given on 30 November 1984. Thereafter, Mr Lavens filed a defence to the third party notice. This alleges that it was Sprigchoice who traded as Commend Communications, and that it was Sprigchoice using that name which supplied all the equipment to Hamilton Leasing. It denies that Mr Lavens personally owed any duty to Britannia Arrow, either in contract or in tort. The defence neither admits nor denies that the prices charged on some of the later agreements were excessive. It says in effect that Britannia Arrow are a substantial company perfectly capable of making their own business decisions, and, if they chose to enter into a number of rental agreements without checking the prices or obtaining alternative quotations elsewhere, that is their concern. It is specifically denied that Mr Tyler or Mr White relied on Mr Lavens's advice. Misrepresentation, negligence, breach of contract and deception are all denied.
   As I have said, it was almost two years after the grant of the Mareva injunction that Mr Lavens's application to discharge it came before Sir Neil Lawson. The point made before the judge, and made before us, was, in short, that a party to proceedings who seeks an injunction ex parte, particularly a Mareva injunction, owes a duty to disclose to the court all facts which are material to the proceedings. It is alleged that the information put before Kennedy J did not disclose all material facts, or draw them to the attention of that judge, and that accordingly the Mareva injunction should be discharged.
   Counsel for Mr Lavens makes the following submissions as to the law. A party who seeks relief ex parte is under a duty to the court to make the fullest disclosure of all material facts. He must disclose any defence he has reason to anticipate may be advanced. If he does not comply, he will be deprived of the fruits of his order without consideration of the merits and irrespective of whether, had he made such disclosure, he would or would not have obtained the order. It matters not whether the non-disclosure is deliberate or innocent. The court may allow a limited latitude for a slip, but only where the party seeking relief has corrected the error quickly.
   Counsel for Britannia Arrow accepts that an applicant for a Mareva injunction has a responsibility to disclose all material facts, but submits that failure to comply does not automatically lead to the discharge of the injunction. He submits that a party should not be deprived of relief if he was innocent in not disclosing the facts, and if he himself had done nothing wrong. Alternatively, he submits that, even if an injunction initially granted is discharged, the court should be ready to consider a further application for an injunction based on the facts as they appear at the time of the application to discharge the first injunction.
   The authorities to which counsel for Mr Lavens refers us start with R v Kensington Income Tax Comrs, ex p Princess Edmond de Polignac [1917] 1 KB 486, a decision of this court. That case involved an ex parte application for an order of prohibition, not for an injunction. However, the judgments contain dicta which relate to ex parte applications generally. Warrington LJ said (at 509):

Scrutton LJ said (at 514):

   Bank Mellat v Nikpour [1985] FSR 87 was a decision of this court relating to a Mareva injunction. On an inter partes application a judge discharged the injunction on the ground that there had not been a full and proper disclosure of the facts by the plaintiffs. On appeal the plaintiffs argued that, if there had been a non-disclosure, it had been innocent. The court dismissed the appeal, holding in effect that even innocent non-disclosure was fatal. Lord Denning MR said (at 89):

Donaldson LJ said (at 90):

He then quoted the passage from the judgment of Warrington LJ in Ex p Princess de Polignac which I have quoted above and continued (at 91-92):

Slade L J agreed.
Yardley & Co Ltd v Higson [1984] FSR 304, which was heard after the Bank Mellat case, was a passing-off action in which the plaintiffs obtained an ex parte injunction. This was granted for three weeks in the first instance. At the end of that time, when the plaintiffs made an application to renew the injunction, they realised that they had failed to disclose some material fact, but brought it to the attention of the judge on the second application. Lawton LJ said (at 309):

   Oliver and Slade LJJ agreed. The order of the second judge granting a modified injunction on the second application was therefore upheld.
   In Eastglen International Corp v Monpare SA (1987) 137 NLJ 56 the first solicitor for the plaintiffs on an application for a Mareva injunction swore an affidavit which clearly omitted a most material fact. When the defendants applied to discharge the injunction, the plaintiffs went to other solicitors, who discontinued the first action and started a fresh182 action, coupled with a fresh application for a Mareva injunction backed by an affidavit which made clear the failure to disclose in the first action. On an application to discharge the second injunction because of the non-disclosure in relation to the first injunction, it being accepted that the failure was wholly due to the solicitor, Gatehouse J said that if an omission is innocent and the undisclosed fact is not of central importance, the court may well decline to discharge the injunction (see (1986) 136 NLJ 1087). However, this was obiter because in the particular case he did discharge the injunction. On appeal Sir John Donaldson MR said (137 NLJ 56):

Nevertheless, in relation to the second injunction, because the default was wholly that of the first solicitor, the court (Ralph Gibson and Nicholls LJJ agreeing) allowed the appeal and continued the second injunction.
   In my view these authorities support the propositions of law advanced by counsel for Mr Lavens as set out above. However, the last submission of counsel for Britannia Arrow is also correct in my view, ie even though a first injunction is discharged because of material non-disclosure, the court has a discretion whether to grant a second Mareva injunction at a stage when the whole of the facts, including that of the original non-disclosure, are before it, and may well grant such a second injunction if the original non-disclosure was innocent and if an injunction could properly be granted even had the facts been disclosed.
   Counsel for Mr Lavens complains of four respects in which material was not disclosed before Kennedy J. They can be summarised as follows.
   (1) The picture presented by the plaintiffs was that, at the time when the telephone equipment was acquired and leased to Britannia Arrow, Mr White and Mr Tyler both believed that they were dealing with Mr Lavens personally, trading as Commend Communications, and did not know of the existence of Sprigchoice or indeed that Mr Lavens owned a limited company. However, submits counsel, it is clear that Mr White did know of the existence of Sprigchoice and of the part it played. He refers us to the following documents which were placed before the court on the application to discharge. First, an invoice relating to an earlier transaction for the supply of equipment to Britannia Financial Services Ltd by Sprigchoice, an invoice dated 30 April 1980. Admittedly this did not relate to any of the transactions which are the subject of these proceedings. Second, a letter from Mr Lavens to Mr White dated 4 February 1981 relating to the first of the relevant transactions, signed 'Yours faithfully Sprigchoice Limited A. G. Lavens', together with another letter of the same date to Mr White from a Mr Henderson which says 'We would confirm that Sprigchoice Limited, who trade under the name Commend Communications ... ' Third, a delivery note dated 23 April 1981 headed 'Sprigchoice Limited trading as Commend Communications' which related to some of the relevant material. This note is signed by Mr Tyler.
   In his judgment on this issue Sir Neil Lawson said:

   Counsel for Britannia Arrow argues that this is a correct analysis, but, with respect to the judge, I disagree. It is true that the alleged deceit and negligence were alleged as being those of Mr Lavens personally, and on those causes of action the existence of Sprigchoice was immaterial. I note incidentally that the word 'fraud' is first used in the third party notice after it was further amended in March 1987. However, as I have said, one of the alleged causes of action is breach of contract, and it clearly was material to this cause of action whether the contract was with the company or with Mr Lavens personally. Counsel for Mr Lavens further argues with justification that, since the alleged misrepresentation is based on an implied as opposed to an expressed representation, the cause of action in contract must be one of considerable importance to Britannia Arrow. Accordingly, in my view the failure by Mr White and Mr Tyler to disclose in their first affidavits that they knew or had documents which showed that at least in some of the transactions the contract was with Sprigchoice rather than with Mr Lavens personally was clearly a material non-disclosure.
   (2) The second matter of which counsel for Mr Lavens complains is Mr Tyler's assertion in his first affidavit that he had no authority to sign rental agreements relating to sums larger than £200, and that Mr Lavens must have known this. Counsel points to evidence which shows that Mr Tyler's authority was not so limited and that Mr Lavens would not have thought that it was.
   Counsel for Britannia Arrow points out that Britannia Arrow in their third party notice do not mention, or rely on, Mr Tyler's alleged lack of authority. Thus, he submits, the point was of no materiality in the action. Sir Neil Lawson held that non-disclosure in this connection was immaterial, and in this respect I agree with him.
   (3) The third complaint is based on the assertion in Mr Tyler's affidavit that he signed the rental agreements thinking that they were merely delivery notes. The answer to this is similar to that to the second complaint, ie that Britannia Arrow do not rely in their pleading on want of authority in Mr Tyler to enter into the rental agreements. For this reason the judge held that this point also was not material, and again I agree with him.
   (4) Counsel's fourth complaint of non-disclosure is based on a passage in Mr White's first affidavit to which I have not so far referred. At para 11 he said:

   Mr White also says in the first sentence of para 14: 'Britannia have not received a satisfactory or any explanation for the rental amounts which they regard as grossly excessive.'
   Counsel for Mr Lavens shows us the following documents exhibited to an affidavit sworn by Mr Lavens on 1 July 1986.
   First, a Britannia Arrow file note dated 7 September 1983 of a meeting between Mr White and a colleague, representatives of Hamilton Leasing, Mr Lavens and a gentleman from Messrs Clifford Turner. It is clear that during this meeting Mr White asked Mr Lavens to explain his prices and that Mr Lavens gave an explanation, which may or may not have been satisfactory, but certainly purported to explain the size of the prices charged.
   Second, a letter from Hamilton Leasing to Britannia Arrow dated 10 April 1984 in reply to a letter of 12 January 1984 in which Britannia Arrow had said: '... 184neither Commend nor Mr Lavens ... has ever been able to explain how any of the rental amounts were calculated.' In their letter Hamilton Leasing said: 'Mr Lavens assures us that Britannia Arrow have not been overcharged on this project. The high cost of the installation is put down to [and there then follow four alleged reasons for the high cost of the installation] '. Again, these may or may not be satisfactory, but they do purport to be explanations emanating from Mr Lavens. In his judgment on this issue Sir Neil Lawson said:

   The point of counsel for Mr Lavens is that since it is not admitted that the prices were excessive or unreasonable, even though the precise explanations are not relied on in Mr Lavens's defence, nevertheless at the ex parte stage the possibility that these explanations might in part at least be relied on should have been envisaged, and it was wrong to say that no explanation of the prices had been given. With this submission I also agree.
   I am therefore of the view that in the evidence placed before Kennedy J on the application for the Mareva injunction the failure to reveal that Mr White and Mr Tyler had knowledge that Sprigchoice was involved in at least some of the transactions was a material non-disclosure, and that the statement that Mr Lavens never gave an explanation for the prices was a material misstatement. Accordingly, in accordance with the criteria laid down in the authorities to which I have referred, but in particular Bank Mellat v Nikpour[1985] FSR 87, I take the view that the injunction granted should be discharged. The fact that Mr Lavens's advisers waited almost two years to make the application could have been material if Britannia Arrow were put at a disadvantage by the delay, but I cannot see that they were. In this respect Sir Neil Lawson held that the delay did not debar the application for setting aside the injunction, and I agree with him. In my view, therefore, the Mareva injunction granted by Kennedy J should be discharged.
   Counsel for Britannia Arrow urges that even if the first injunction is discharged, we should at this stage exercise our discretion either ourselves to grant a further Mareva injunction or to remit the matter to the High Court to enable a further application for a Mareva injunction to be made and in some way preserve the status quo in the mean time. For some time during the course of the argument I was of the opinion that this was probably the proper course to adopt. Certainly on the more recent authorities it is my view that the High Court would have a discretion to grant a second Mareva injunction, and it may well be that this court would have a discretion to preserve the status quo in the mean time pending such an application, or a discretion itself to grant a second Mareva injunction. I note, as I have said, that, while Mr Lavens has never admitted that his prices were excessive, on the other hand he has not denied it in his pleadings. It seems probable that Britannia Arrow will be able to establish that Mr Lavens took advantage of the fact that they left the conduct of affairs to Mr Tyler, who, whether through incompetence or for some other reason, signed the rental agreements without giving any proper consideration to the rental charges and prices set out in the agreements. Whether this will suffice to establish a cause of action against Mr Lavens personally remains to be seen.
   Counsel for Mr Lavens argues, however, that it is at this stage that delay does become relevant. He points out that it is now over two and a half years since the third party proceedings were commenced, and, although the summons for directions was over two years ago, neither the action nor the third party proceedings have been set down for trial. I agree with him that this is a most relevant consideration. A Mareva injunction, as Sir John Donaldson MR said in the Bank Mellat case [1985] FSR 87 at 92, is a draconian remedy. It is intended as an adjunct to the action itself, not as a substitute for relief to be185 obtained on trial. In other words, a plaintiff who succeeds in obtaining a Mareva injunction is in my view under an obligation to press on with his action as rapidly as he can so that, if he should fail to establish liability in the defendant, the disadvantage which the injunction imposes on the defendant will be lessened so far as possible. There is no sign that the defendants in the present case have been active in pressing ahead with these proceedings.
   It is not for this court to direct whether or not Britannia Arrow should make another application for a fresh Mareva injunction. Certainly, if they do so, the factors to which I have just referred, amongst other matters, should no doubt be taken into account by the judge who hears the application but for my part I am persuaded that we should not grant a fresh Mareva injunction ourselves, and that we should not, because of the delay, take any other steps to preserve the status quo.
   Accordingly, I would allow the appeal and discharge the existing injunction.

DILLON LJ. As I said in a judgment given in this court only last week (Janov v Markham [1987] CA Transcript 228), I would indorse as emphatically as I can the views expressed by Lord Denning MR and Donaldson LJ in Bank Mellat v Nikpour [1985] FSR 87 that the making of an application for a Mareva injunction requires the fullest and frankest disclosure to the court on the part of the applicant. If an injunction is obtained and there has been material non-disclosure by the applicant, then prima facie the injunction ought to be discharged.
   This is an instance, of particular importance because of the draconian nature of a Mareva injunction, of the general rule as to ex parte applications which is very clearly set out in the judgments of this court in R v Kensington Income Tax Comrs, ex p Princess Edmond de Polignac [1917] 1 KB 486, to which Glidewell LJ has referred. That must, I apprehend, as a matter of jurisdiction be a rule of practice rather than a rule of law, and, in so far as the judgments in the Polignac case show that the rule is derived from the practice of the old Court of Chancery in relation to the grant of injunctions, there must, I apprehend, be an element of discretion which, despite non-disclosure, might allow an injunction to stand in an exceptional case, as in effect was done in Eastglen International Corp v Monpare SA (1987) 137 NLJ 56. That does not, however, arise in the present case.
   The case of the defendants, Britannia Arrow Holdings plc, against the third party, Mr Lavens, was pleaded as a case of breach of the duty of care of an expert adviser and breach of an implied representation or, alternatively, as a case of fraud, although the actual word 'fraud' is not used until the recent reamendment of the pleading. There is an alternative plea in contract that there was a contract between the defendants and the third party embodying the duty relied on, but for present purposes I disregard that.
   Britannia Arrow's trouble is that when they applied to Kennedy J ex parte for the Mareva injunction they overgilded the lily. They had pleaded in considerable detail their case of alleged breach of duty of care and implied representation with a case of deceit woven into it. When they came to prepare the evidence for the Mareva application, they sought to put in maximum prejudice against Mr Lavens. Thus Mr White, their company secretary, included in his affidavit the passage at the end of para 13 in relation to non-disclosure of the existence of Sprigchoice Ltd, to which Glidewell LJ has referred, and also the passages in paras 11 and 14 in relation to the failure of Mr Lavens to give any explanations of the prices charged and his alleged refusal to disclose the whereabouts of the money. These are statements calculated, in a case such as this, to prejudice the third party, and thus in my judgment highly material to the application for the Mareva injunction against the third party, even though the third party would be personally liable in damages for his fraud or breach of professional duty, even if he was acting through a company. The same goes for the statements of Mr Tyler in para 8 of his affidavit. But in fact Mr White and Mr Tyler knew perfectly well that Mr Lavens was carrying on business through a company, and they also knew that Sprigchoice Ltd was the name of that186 company. They may not have known the amount of its paid-up capital, but that was only because the paid-up capital was not a material factor.
   The judge seems to have though that non-disclosure is only material as a basis for discharging the injunction if it affects some point which it is necessary for the applicant for the injunction to establish if he is to succeed in his claim. Therefore he said that the failure to disclose that Britannia Arrow knew about the company was not material, because it would have been no defence for Mr Lavens to say in answer to the charge of fraud: 'It was not I; it was my tame company who did it.'
   With all respect, I do not agree with the judge that the duty of disclosure is so limited. The applicant owes a duty of fullest and frankest disclosure: if he puts in matters of prejudice, he must put them in as fully as is necessary to be fair. He cannot pile on the prejudice and then, when it is pointed out that he has told only half of the story and has left out matters which give a quite different complexion, say, 'Oh, well it is not material. It is only prejudice and so, on a strict analysis of the pleadings, does not have to be regarded.'
   Again, as to the absence of satisfactory explanation afterwards, or, as it is put by Mr White, any explanation afterwards for the rental amounts, Mr White fails to disclose the matters to which Glidewell LJ has referred: that there was a meeting in September 1983 between representatives of Hamilton Leasing Ltd and of Britannia Arrow and Mr Lavens; that at that meeting Mr Lavens agreed to provide a breakdown of all contracts and charges; that at the end of the meeting, after Mr Lavens had left, the recorded feelings of the others present was that he did seem sharp, although vague on various points; that after the meeting Mr Lavens did not supply several pages of notes to Britannia Arrow by way of breakdown and explanation; and that in April 1984 Mr White himself had received a letter from Hamilton Leasing giving Mr Lavens's heads of explanation of the high cost of installation of the equipment. Whether the explanations are valid I know not: the point is that they were given.
   In my judgment, therefore, Britannia Arrow were guilty of serious and material non-disclosure on that application to Kennedy J for the Mareva injunction.
   It was submitted for Britannia Arrow that Mr Lavens's delay in applying for the discharge of the injunction precludes it being discharged now. There is no evidence that the delay has prejudiced the Britannia Arrow. The judge held that Mr Lavens was not guilty of unreasonable delay. I agree. Mr Lavens had to find the material to prove what Britannia Arrow had known at the time of their application to Kennedy J, and, owing in part to the Mareva injunction, he had difficulty in doing that.
   Should the court nevertheless exercise discretion in favour of Britannia Arrow by not discharging the Mareva injunction or by granting a fresh injunction in similar terms, or by staying the discharge for a period pending application by Britannia Arrow at first instance for a fresh injunction?
   There is no doubt that there is jurisdiction to grant a fresh injunction, even though there has been culpable non-disclosure when the original injunction was applied for. I find it a cumbrous procedure that the court should be bound, instead of itself granting a fresh injunction, to discharge the existing injunction and stay the discharge until a fresh application is made, possibly in another court, and the court which is asked to discharge the injunction should not simply, as a matter of discretion in an appropriate case, refuse to discharge it if it feels that it would be appropriate to grant a fresh injunction. That leads me to think that there is a discretion in the court on an application for discharge. It is difficult to see that there should be a different result in a case such as Yardley & Co Ltd v Higson [1984] FSR 304 which Glidewell LJ has mentioned, where the injunction was, in accordance with the normal practice of the Chancery Division, only granted for a limited period in the first place and the question of non-disclosure arose on the application for a renewal of the injunction at the end of that period, and cases in the Queen's Bench Division under a practice where the ex parte injunction is granted without specific limit187 in the first place and the question of non-disclosure arises on an application by the party enjoined to discharge the injunction.
   But in the present case a further important factor comes in at this stage. The Mareva injunction was granted on 20 August 1984. It is a very onerous injunction which has hung over Mr Lavens for two and a half years, with the attendant expense of applying from time to time for relaxations, but the action is not yet set down. Britannia Arrow say that that is in part due to delay or prevarication on the part of Mr Lavens in answering interrogatories in aid of discovery as to what has happened to money he received from Hamilton Leasing in respect of equipment which he, or his company, supplied to Britannia Arrow. But the directions for setting down were given before 1984 expired. They have been ignored nothing has happened. Britannia Arrow have been content to leave Mr Lavens tied up indefinitely in the toils of the Mareva injunction. For a party to do that when an Anton Piller order had been obtained was strongly disapproved in Hytrac Conveyors Ltd v Conveyors International Ltd [1982] 3 All ER 415, [1983] 1 WLR 44, a decision of this court affirming a decision of Whitford J. Precisely the same considerations, in my judgment, apply in relation to a Mareva injunction: where a party has obtained a Mareva injunction, that party is bound to get on with the trial of the action, not to rest content with the injunction. The injunction is merely ancillary to the trial of the action to hold the position until the action comes on for trial.
   In my judgment, therefore, Britannia Arrow have been wrong in resting on the Mareva injunction, and the discretion of the court should not be exercised in their favour by granting some stay on the discharge of the injunction or by this court granting a fresh injunction. Accordingly, I would simply allow this appeal and discharge the injunction.

Solicitors: Matthew Trackman & Co (for Mr Lavens); Smyth & Co (for Britannia Arrow).