[1988] 3 All ER 188

A person applying ex parte for a Mareva injunction is under a duty not only to make a full and fair disclosure of all material facts known to him but also to make proper inquiries for any relevant additional facts before making the application, since not only facts known to the applicant but also any additional facts which he would have known if he had made proper inquiries will determine whether there has been material non-disclosure. The extent of the inquiries which will be deemed to be proper will depend on all the circumstances of the case, including the nature of the applicant's case when making the application and the probable effect of the order on the defendant. Whether a fact not disclosed is of sufficient materiality to justify or require immediate discharge of the order without examination of the merits depends on the importance of that fact to188 the issue to be decided by the judge on the application. The fact that the non-disclosure was innocent, in the sense that it was not known to the applicant or that its relevance was not perceived, is an important, but not decisive, consideration in deciding whether to order an immediate discharge. However, the court has a discretion, notwithstanding proof of material non-disclosure which justifies the immediate discharge of an ex parte order, to continue the order or to make a new order on terms (see p 192 f to p 193 d g to p 194 c g, post).
   Bank Mellat v Nikpour [1985] FSR 87 and Lloyds Bowmaker Ltd v Britannia Arrow Holdings Ltd (Lavens, third party) [1988] 3 All ER 178 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 appeals
The plaintiffs, Brink's-MAT Ltd, appealed with leave of the judge against the order of Alliott J dated 15 April 1987 whereby he ordered that an interlocutory injunction made by Roch J on 9 December 1986 on the ex parte application of the plaintiffs restraining the first to fourth defendants and the seventh to tenth defendants in an action by the plaintiffs against eleven defendants, until trial or further order, from disposing of assets listed against their names in a schedule to the order, be discharged as against the ninth defendant, Boinco Corp, a Panamanian corporation, and the tenth defendant, Stephen Philip Kay, and refused in his discretion to make any new order. The plaintiffs sought the restoration of Roch J's order and a new injunction against the ninth and tenth defendants in the terms of Roch J's order. The ninth and tenth defendants applied for leave to appeal out of time against the order of his Honour Judge White sitting as a judge of the High Court on 30 December 1986 refusing to set aside Roch J's order. The facts are set out in the judgment of Ralph Gibson LJ.

189

12 June 1987. The following judgments were delivered.

RALPH GIBSON LJ (giving the first judgment at the invitation of Slade LJ). This is an appeal by the plaintiffs, Brink's-MAT Ltd, from the order of Alliott J of 15 April 1987 whereby an interlocutory injunction made by Roch J on 9 December 1986 was discharged as against the ninth defendant, Boinco Corp, and the tenth defendant, Mr Stephen Philip Kay. Roch J had on 9 December 1986 on an ex parte application by the plaintiffs ordered that nine out of the eleven defendants in this action be restrained until trial or further order from disposing of the assets listed against their names in a schedule to the order. So far as concerns Boinco and Mr Kay the assets so listed are described as the proceeds of sale of Cyclops Wharf, a dockland property in West Ferry Road, London E14. The order was made, of course, on the usual undertakings, including undertakings as to damages, given by the plaintiffs. The plaintiffs seek an order continuing the injunction until trial.
   The action in which this interlocutory appeal is brought is but one of a number of separate actions in which Brink's-MAT Ltd claim various forms of relief against a number of men and women and corporations. All the claims arise, directly or indirectly, out of the Brink's-MAT robbery at Heathrow in November 1983 when valuables, including gold bullion worth then some £25m, were stolen. The main grounds of claim made against the first nine defendants in this case are three: first, damages for wrongful interference with the stolen gold; next, damages for conspiracy to injure the plaintiffs and for procuring the breach of duty of a servant of the plaintiffs who was involved in the robbery; and, third, for declarations that certain assets are the proceeds of sale of, or profits made from the use of, the stolen gold and are held on trust for the plaintiffs. The parties to this appeal are Boinco and Mr Kay. The plaintiffs' claim against Boinco is advanced on all three grounds but as against Mr Kay it is made only on the third ground of constructive trust. Mr Kay appears to have been caught up in this litigation because he is and has long been the close personal friend of Mr Relton, a solicitor. Mr Relton acted for Mr Parry, the seventh defendant, who on the evidence before the court got hold of some £2.7m in cash in sterling and paid it into an account, code-named 'Burton', in a bank in Zurich. That fund was the source of finance for a large number of property deals in this country, and for one in Spain, by which large profits were made by companies formed, or acquired, and operated, for Mr Parry by Mr Relton. Mr Relton has admitted that the money in the Burton account was the proceeds of the stolen gold and that he knew that fact from about December 1985.
   In January 1986 the eighth defendant, Selective, a Jersey company owned and controlled by Mr Parry, or by Mr Parry and Mr Relton, contracted to buy Cyclops Wharf from Durable Warehousing Co Ltd for £2.7m. Only £135,000 was paid as deposit by Selective. The rest of the purchase price was payable as to £135,000 on 31 July and the balance on 1 May 1987. On 29 July 1986 Selective contracted to sell Cyclops Wharf to Chrysalis plc for £4.25m, to be paid by instalments with completion on 1 May 1987 and to yield a gross profit of £1.55m. Thus Selective did not have to find any further funds from its own resources. Under the resale contract to Chrysalis, Selective received £600,000 on 29 July 1986; £400,000 was to be paid on 15 December 1986, £300,000 on 2 March 1987 and the balance of £2.95m on completion on 1 May 1987.
   As against Selective the claim of the plaintiffs to be entitled in equity to the proceeds of sale of Cyclops Wharf appears on the stated facts to be good. According to Mr Kay and Mr190 Relton, however, Selective is no longer entitled to the proceeds of sale of Cyclops Wharf. It is said that by an oral agreement in March 1986 Mr Kay became entitled to one-half of the Cyclops Wharf transaction and therefore to one-half of the profit. On or before 4 September 1986 Mr Relton became joint owner with Mr Kay of Boinco, a Panamanian corporation, previously wholly owned by Mr Kay, and on 17 September 1986 it is said that Selective by a written agreement validly passed and assigned the burden and benefits of the purchase and resale contracts for Cyclops Wharf to Boinco. Further, it is said that, while some companies owned and operated by Mr Parry and Mr Relton did carry out many property transactions with money derived from the stolen gold, the Cyclops Wharf transaction was different in that no tainted money was used to acquire the property and therefore the plaintiffs have no equitable claim against the proceeds of sale. If they have such a claim it is contended nevertheless that Mr Kay and Boinco are bona fide purchasers of the rights under the contracts without notice of the equitable rights of the plaintiffs.
   The assignment contract of 17 September 1986, if that is what it was, is an important matter in this case. According to the copy provided to the plaintiffs' loss adjusters, Selective by that contract assigned to Boinco all the interest of Selective in the purchase contract for Cyclops Wharf and in the resale contract, together with the right to receive from Chrysalis the outstanding stage payments. The receipt by Selective of £600,000 from Chrysalis, being the first payment under the resale contract, was recited. The consideration for the assignment to Boinco was said to be £800,000 paid by Boinco to Selective and, by the terms of the contract, Selective acknowledged receipt of that sum. In fact, as has become apparent in the course of the proceedings, nothing was paid by Boinco to Selective. The evidence as to the circumstances in which the assignment contract was made and such explanation as there is for the difference between the form of the contract and the facts as they are alleged to have been will be described later in this judgment.
   Alliott J on 15 April 1987 ordered that the injunction be discharged as against Boinco and Mr Kay and refused in his discretion to make any new order. He directed, however, that the injunction continue pending the hearing of this appeal. The grounds on which Alliott J so proceeded were in substance that there had been innocent but material non-disclosure of facts in the information put by the plaintiffs before Roch J, and that new material put before Alliott J had falsified the basis on which the plaintiffs had sought to show a ground of claim against Boinco and Mr Kay. He declined in his discretion to make any new order on the ground that on the evidence the plaintiffs had not made out a sufficiently strong case.
   There had been an earlier application by Boinco and Mr Kay to set aside the order of Roch J. That application was heard by his Honour Judge White, sitting as a judge of the High Court, and on 30 December 1986 was dismissed by him. During the hearing in this court counsel applied on behalf of Boinco and Mr Kay for leave to appeal against that decision of Judge White out of time on the ground that on the evidence before him he was wrong not to set aside the order of Roch J by reason of material non-disclosure by the plaintiffs. This court gave leave to appeal.
   [His Lordship then referred to the facts out of which the plaintiffs' claims were said to arise and to the ex parte application and then set out the material parts of the affidavit by Mr McCunn, the plaintiffs' solicitor, filed in support of the application. His Lordship continued:]
   It is not in issue that, with one important exception to be described, Mr McCunn's affidavit accurately describes the information put by counsel for the plaintiffs before Roch J.
   The exception is that counsel for the plaintiffs had informed Roch J that the basis of the information put before him was information made available by the police and that there was more information not known to counsel. The explanation to this court for the limitation on the information supplied was said to be that Mr Relton had only recently been arrested and that it was thought that it would be disadvantageous to the continuing investigations by the police if it were known to what extent Mr Relton had disclosed information. Nothing was said in the affidavit with reference to that matter.
   There were, in my judgment, several respects in which this affidavit was defective. First, it seems to me that there was no justification for not including in the affidavit, or at least in a letter to the defendants, an account of what counsel had said to the judge about information available to the plaintiffs. Whatever justification there may have been for any inadequacies in the information put before Roch J, there was no justification for191 not immediately informing the defendants of what had been said. Counsel for the plaintiffs (Mr Tugendhat), of course, had no intention to conceal anything. At the next stage of the proceedings Mr Charles Gray QC, who was then appearing for the plaintiffs, made reference to what had been said by Mr Tugendhat. It was acknowledged by counsel for the plaintiffs before us that a full account of the substance of what had been said to the judge should have gone at once to the defendants, who were entitled to know on what material and in what circumstances the orders had been made against them in their absence so as to be able properly to consider whether or not to apply for the order to be set aside.
   Next there are formal defects in the affidavit. I will consider these matters at once, and separately from the question whether the plaintiffs complied with the obligation, in applying to the court for ex parte orders against Boinco and Mr Kay 'to make a full and fair disclosure of all the material facts': see Scrutton LJ in R v Kensington Income Tax Comrs, ex p Princess Edmond de Polignac [1917] 1 KB 486. [His Lordship then dealt with the formal defects in the affidavit and continued:]
   Counsel for the plaintiffs was asked in this court to state what on his instructions his personal knowledge was of information not set out in Mr McCunn's affidavit. His reply was that there were three items: first, that Mr Relton was co-operating with the police by making statements; second, that in general terms the loss adjusters had had sight of some parts of those statements and, third, that in general terms the police were at least one source of the information which the loss adjusters had obtained. With reference to the main allegation of non-disclosure raised before Alliott J, counsel for the plaintiffs added that he did not know that Mr Relton had said, ie in the statements made by him to the police, that the Cyclops Wharf did not involve the proceeds of the robbery and counsel for the plaintiffs had no reason to suspect that he might be saying that.
   During the course of the argument the question was raised whether the course followed by the plaintiffs in the application was or could be justified by reference to public interest immunity. [His Lordship then considered whether the application could be justified by reference to public interest immunity, referring to IRC v Rossminster Ltd [1980] 1 All ER 80 at 93, [1980] AC 952 at 1011-1012 (citing Conway v Rimmer [1968] 1 All ER 874 at 889, [1968] AC 910 at 953-954) and WEA Records Ltd v Visions Channel 4 Ltd [1984] FSR 404 at 406, and held that the application could not be so justified. His Lordship then described the applications to discharge the injunction and continued:]
   In considering whether there has been relevant non-disclosure and what consequence the court should attach to any failure to comply with the duty to make full and frank disclosure, the principles relevant to the issues in these appeals appear to me to include the following. (i) The duty of the applicant is to make 'a full and fair disclosure of all the material facts': see R v Kensington Income Tax Comrs, ex p Princess Edmond de Polignac [1917] 1 KB 486 at 514 per Scrutton LJ. (ii) The material facts are those which it is material for the judge to know in dealing with the application as made; materiality is to be decided by the court and not by the assessment of the applicant or his legal advisers: see the Kensington Income Tax Comrs case [1917] 1 KB 486 at 504 per Lord Cozens-Hardy MR, citing Dalglish v Jarvie (1850) 2 Mac & G 231 at 238, 42 ER 89 at 92, and Thermax Ltd v Schott Industrial Glass Ltd [1981] FSR 289 at 295 per Browne-Wilkinson J. (iii) The applicant must make proper inquiries before making the application: see Bank Mellat v Nikpour [1985] FSR 87. The duty of disclosure therefore applies not only to material facts known to the applicant but also to any additional facts which he would have known if he had made such inquiries. (iv) The extent of the inquiries which will be held to be proper, and therefore necessary, must depend on all the circumstances of the case including (a) the nature of the case which the applicant is making when he makes the application, (b) the order for which application is made and the probable effect of the order on the defendant: see, for example, the examination by Scott J of the possible effect of an Anton Piller order in Columbia Picture Industries Inc v Robinson [1986] 3 All ER 338, [1987] Ch 38, and (c) the degree of legitimate urgency and the time available for the making of inquiries: see Bank Mellat v Nikpour [1985] FSR 87 at 92-93 per Slade LJ. (v) If material192 non-disclosure is established the court will be 'astute to ensure that a plaintiff who obtains ... an ex parte injunction without full disclosure is deprived of any advantage he may have derived by that breach of duty ... ': see Bank Mellat v Nikpour (at 91) per Donaldson LJ, citing Warrington LJ in the Kensington Income Tax Comrs case. (vi) Whether the fact not disclosed is of sufficient materiality to justify or require immediate discharge of the order without examination of the merits depends on the importance of the fact to the issues which were to be decided by the judge on the application. The answer to the question whether the non-disclosure was innocent, in the sense that the fact was not known to the applicant or that its relevance was not perceived, is an important consideration but not decisive by reason of the duty on the applicant to make all proper inquiries and to give careful consideration to the case being presented. (vii) Finally 'it is not for every omission that the injunction will be automatically discharged. A locus poenitentiae may sometimes be afforded': see Bank Mellat v Nikpour [1985] FSR 87 at 90 per Lord Denning MR. The court has a discretion, notwithstanding proof of material non-disclosure which justifies or requires the immediate discharge of the ex parte order, nevertheless to continue the order, or to make a new order on terms:

   (See Lloyds Bowmaker Ltd v Britannia Arrow Holdings plc (Lavens, third party) [1988] 3 All ER 178 at 183 per Glidewell LJ.)
   [His Lordship referred to the evidence and matters of non-disclosure and continued:]
   For my part, therefore, on the evidence before Judge White I would have held that the defendants had demonstrated material non-disclosure so that the plaintiffs were, within the principles to which I have referred, in mercy before the court, that is to say liable to have the order set aside on that ground. Nevertheless, I have no doubt whatever that on the facts of this case, if the additional information had been before Roch J, the order would still have been made by him at once and on the same terms. [His Lordship considered the additional information placed before Alliott J and stated that there was nothing in the further evidence to affect the conclusion which he had reached. His Lordship continued:]
   For these reasons, therefore, I would allow the plaintiffs' appeal against the order of Alliott J, and I would dismiss the defendants' appeal against the order of Judge White.

BALCOMBE LJ. I have had the advantage of reading the draft judgment of Ralph Gibson LJ. I agree with him, and for the reasons which he gives, that the plaintiffs' appeal against the order of Alliott J should be allowed and that the defendants' appeal against the order of Judge White should be dismissed. However, as we are differing from the conclusions of Alliott J, I propose to add a few words of my own.
   The courts today are frequently asked to grant ex parte injunctions, either because the matter is too urgent to await a hearing on notice or because the very fact of giving notice may precipitate the action which the application is designed to prevent. On any ex parte application, the fact that the court is asked to grant relief without the person against whom the relief is sought having the opportunity to be heard makes it imperative that the applicant should make full and frank disclosure of all facts known to him or which should have been known to him had he made all such inquiries as were reasonable and proper in the circumstances.
   The rule that an ex parte injunction will be discharged if it was obtained without full disclosure has a twofold purpose. It will deprive the wrongdoer of an advantage improperly obtained: see R v Kensington Income Tax Comrs, ex p Princess Edmond de Polignac [1917] 1 KB 486 at 509. But it also serves as a deterrent to ensure that persons who make ex parte applications realise that they have this duty of disclosure and of the consequences (which may include a liability in costs) if they fail in that duty. Nevertheless, 193this judge-made rule cannot be allowed itself to become an instrument of injustice. It is for this reason that there must be a discretion in the court to continue the injunction, or to grant a fresh injunction in its place, notwithstanding that there may have been non-disclosure when the original ex parte injunction was obtained: see in general Bank Mellat v Nikpour [1985] FSR 87 at 90 and Lloyds Bowmaker Ltd v Britannia Arrow Holdings plc (Lavens third party) [1988] 3 All ER 178, a recent decision of this court in which the authorities are fully reviewed. I make two comments on the exercise of this discretion. (i) Whilst, having regard to the purpose of the rule, the discretion is one to be exercised sparingly, I would not wish to define or limit the circumstances in which it may be exercised. (ii) I agree with the views of Dillon LJ in the Lloyds Bowmaker case [1988] 3 All ER 178 at 187 that, if there is jurisdiction to grant a fresh injunction, then there must also be a discretion to refuse, in an appropriate case, to discharge the original injunction.
   Those being the principles involved, it remains only to apply them to the facts of the present case. [His Lordship referred to the factual information given to Roch J and continued:]
   So, on a fair analysis of the position as it is now known, the facts which should have been disclosed to Roch J, but innocently were not, are material neither to the plaintiffs' cause of action nor to the possible defences of Mr Kay and Boinco. If the injunction 'freezing' the Cyclops Wharf profit is discharged and not renewed, then a sum in excess of £1m, which may belong to the plaintiffs, will be paid out to Boinco, a Panamanian corporation which, so far as we know, has no assets within the jurisdiction. In those circumstances, I would not rate highly the plaintiffs' chances of recovering these moneys if they succeed in establishing their claim at the hearing of the action. On the other hand, Mr Kay has been repaid his initial contribution of £130,000 together with £10,000 by way of interest, so that he will not in any event be out of pocket on the transaction, even though he may be temporarily deprived (if he ultimately succeeds in his defence to the plaintiffs' claim) of his anticipated profit. The arguments in favour of maintaining the injunction are all one way, save only for 'punishing' the plaintiffs for their original innocent, and, as it now transpires, immaterial, non-disclosure. On the application of the discretion to which I have already referred, I am satisfied that this is a proper case for maintaining the injunction.

SLADE LJ. These appeals raise a number of different questions arising out of the application of what is sometimes known as the principle of R v Kensington Income Tax Comrs, ex p Princess Edmond de Polignac [1917] 1 KB 486. I have had the advantage of reading in draft the judgments of Balcombe and Ralph Gibson LJJ. I respectfully agree with them, both in their analyses of the principle and in its application to the facts of the present case. The principle is, I think, a thoroughly healthy one. It serves the important purposes of encouraging persons who are making ex parte applications to the court diligently to observe their duty to make full disclosure of all material facts and to deter them from any failure to observe this duty, whether through deliberate lack of candour or innocent lack of due care.
   Nevertheless, the nature of the principle, as I see it, is essentially penal and in its application the practical realities of any case before the court cannot be overlooked. By their very nature, ex parte applications usually necessitate the giving and taking of instructions and the preparation of the requisite drafts in some haste. Particularly in heavy commercial cases, the borderline between material facts and non-material facts may be a somewhat uncertain one. While in no way discounting the heavy duty of candour and care which falls on persons making ex parte applications, I do not think the application of the principle should be carried to extreme lengths. In one or two other recent cases coming before this court, I have suspected signs of a growing tendency on the part of some litigants against whom ex parte injunctions have been granted, or of their legal advisers, to rush to the R v Kensington Income Tax Comrs principle as a tabula in naufragio, alleging material non-disclosure on sometimes rather slender grounds, as representing substantially the only hope of obtaining the discharge of injunctions in194 cases where there is little hope of doing so on the substantial merits of the case or on the balance of convenience.
   Though in the present case I agree that there was some material, albeit innocent, non-disclosure on the application to Roch J, I am quite satisfied that the punishment would be out of all proportion to the offence, and indeed would cause a serious potential injustice if this court were, on account of such non-disclosure, to refuse to continue the injunction granted by Roch J on 9 December 1986.
   As Ralph Gibson LJ has explained in his judgment, the three principle issues on the two appeals now before the court have, in effect, been these: (A) whether the plaintiffs failed in their obligation to make full and frank disclosure to Roch J in such a manner as to require revocation of the order made by him ex parte on 9 December 1986; (B) whether the plaintiffs have shown a good arguable claim to be beneficially entitled to the proceeds of the sale of Cyclops Wharf; (C) if the plaintiffs fail on (A) but succeed on (B), whether the court can and should in its discretion continue Roch J's injunction or grant a new injunction.
   It has, I think, been common ground, and is to my mind clear, that, if the plaintiffs have shown a good arguable case as in (B), the balance of convenience would support the grant or continuation of an interlocutory injunction.
   [His Lordship then considered issue (B) and stated that the plaintiffs had established a good arguable case both to be beneficially entitled to the proceeds of sale of Cyclops Wharf and to have a title to such proceeds superior to any which might be possessed by Boinco and Mr Kay. His Lordship continued:]
   As to issues (A) and (C) above, for the reasons given in the judgment of Ralph Gibson LJ, and the further reasons given by Balcombe LJ so far as they too relate to these points, I too have reached the following conclusions.
   (1) On the information put before him orally by counsel, Roch J was right to make the order which he made ex parte on 9 December 1986.
   (2) Quite apart from any other questions of material non-disclosure (as to which see para (7) below) the affidavit subsequently sworn by Mr McCunn on 10 December 1986 pursuant to the undertaking given to Roch J was formally defective because (i) it should have included an account of what counsel had said to the judge about the information available to the plaintiffs, (ii) it did not sufficiently state the sources of the deponent's information or of his belief that payments from the proceeds of the robbery were probably the source of the funds used by Selective to make the initial deposit of £135,000 which enabled it to buy Cyclops Wharf, (iii) it did not comply with the practice direction of 30 March 1983 (see Practice Note [1983] 1 All ER 1119, [1983] 1 WLR 433) with reference to stating the facts relied on as justifying the application being made ex parte, (iv) the course followed by the plaintiffs in relation to the evidence could not be justified by reference to public interest immunity.
   (3) His Honour Judge White, on the evidence before him, was right to hold that the plaintiffs had established a good cause of action and a good arguable case against Boinco and Mr Kay.
   (4) On such evidence, Judge White was also right to hold that the ex parte injunction against Boinco and Mr Kay should not be discharged, but for the reasons summarised in para (9) below, rather than the reasons given by him.
   (5) In so far as Judge White found that in regard to some facts there had been a material non-disclosure but that it did not justify discharging the order, Alliott J (contrary to his own view) was bound to take those undisclosed material facts into consideration in deciding whether, in conjunction with any undisclosed material facts found by him, those facts justified the discharge of the order.
   (6) The defendants' appeal against Judge White's decision would only affect the continuation of the injunction until trial, if the plaintiffs' appeal against Alliott J's order would otherwise be allowed. However, it has to be considered in any event, because it could be relevant in relation to the costs of the hearing before Judge White.
   (7) The plaintiffs, in their evidence in support of the ex parte application, should have195 informed the court of the various instances of frankness which Mr Kay had apparently shown in his contacts with loss adjusters about his relationship with Mr Relton, because this information was material to the question whether Mr Kay's conduct was consistent with his not having been aware of the alleged tainted nature of the funds used by Selective to acquire its rights to Cyclops Wharf, and, further, was a relevant consideration for the court in deciding whether or not this was an appropriate case in which to grant ex parte relief.
   (8) The failure to disclose these matters, though innocent in the sense that the plaintiffs did not intentionally omit information which they thought to be material, amounted to material non-disclosure within the principles of R v Kensington Income Tax Comrs, ex p Princess Edmond de Polignac [1917] 1 KB 486 and Judge White should have so held.
   (9) Nevertheless, even if this additional information had been put before him, it would not (and should not) have caused Roch J to decline to grant ex parte relief, in the terms in which he granted it, at once.
   (10) In all the circumstances of this case, notwithstanding this non-disclosure and notwithstanding the defects in the presentation of the information placed before Roch J and recorded in Mr McCunn's first affidavit, it would have been right for Judge White, on the evidence before him, in the exercise of his discretion to continue the injunction granted by Roch J.
   (11) As to the new evidence before Alliott J, the plaintiffs are not yet shown to have had knowledge of the contents of the police witness statements at the time when they made their ex parte application to Roch J. Nor are they to be treated as having constructive knowledge of those contents. The additional information placed before Alliott J thus did not establish any further material non-disclosure.
   (12) Even if the relevant statements had been before Roch J, they would not have presented any obstacle to the finding that there was a good arguable case that the initial deposit paid by Selective represented proceeds of the stolen gold, but would have provided support for that inference, because Mr Relton was reporting that Selective had obtained the money by borrowing and said nothing to contradict the inference that the borrowing by Selective was based on the assets of Selective which represented the proceeds of the stolen gold or assets derived from deals financed by those proceeds.
   (13) Alliott J was wrong to accept the submission that the only evidence before him was that the first £135,000 of the deposit was not tainted money.
   (14) Alliott J erred in holding that the basis on which Judge White had declined to discharge the injunctions had been falsified by the new evidence and in allowing the defendants' application to discharge them on the new ground of non-disclosure relating to the contents of the police statements.
   (15) Having regard to all the evidence which was before Alliott J, the injunction granted by Roch J on 9 December 1986 against Boinco and Mr Kay should continue until judgment in the action or further order in the mean time.
   (16) The plaintiffs' appeal against the order of Alliott J should be allowed, and the defendants' appeal against the order of Judge White should be dismissed.

Solicitors: Shaw & Croft (for the plaintiffs); Roscoe-Phillips (for the ninth and tenth defendants).