Full and frank disclosure and discharge applications (Astor v Salinas)
Dispute Resolution analysis: This appeal concerns the dismissal of an application by Astor and three others (the appellants) to discharge a worldwide freezing order and proprietary injunction based upon an alleged breach of the duty of full and frank disclosure by one of the richest men in the world, Mr Salinas, and his company RBS (the respondents) on the without notice application for such relief. The relief was obtained in support of claims against an alleged prolific fraudster (and others) that over US$400m of shares in a listed Mexican company were transferred and then misappropriated following fraudulent misrepresentations. Having unsuccessfully pursued five other grounds at first instance, the appeal concerned one remaining allegation, namely that the respondents had failed properly to present their willingness and ability to pay the cross-undertaking in damages and other sums. The court unanimously dismissed the appeal, in so doing reiterating important points about the approach to full and frank disclosure and discharge applications as well as providing specific guidance in relation to what is required to demonstrate an unwillingness and inability to pay. Written by Jon Felce, partner at CYK.