Background
These proceedings concerned an ex parte application for injunctive relief brought by the plaintiff in September 2020. An Order was sought compelling the defendant to deliver alarm codes in respect of a fire safety system installed by the defendant. The Order was granted ex parte on the basis that the plaintiff advised the Court that there was extreme urgency to the situation as there was a risk to life due to the fire safety system not being operational. The plaintiff in particular sought access to the master engineer's codes for the system and informed the Court that the defendant had refused to provide them, even though the defendant's fee had been paid.
When the matter subsequently came before the Court again, it transpired that a very significant communication from the defendant had been omitted from the papers before the Court on the ex parte application and had not been referred to in the initial grounding affidavit or a later affidavit sworn by a director of the plaintiff. An email sent on 20 August 2020 by the defendant made an offer to attend the site and reset the codes to the manufacturer's code. This offer had also been made verbally prior to the email. The failure to advise the Court of the fact that the defendant had made an offer to attend the site and rectify the issue was a significant breach of the obligation on a plaintiff to make full and frank disclosure at the interim application stage, the "golden rule" when applying for ex parte injunctive relief.
Decision
The Court held that "it was utterly inappropriate and completely unnecessary for the plaintiff subsequently to move the ex parte application" and to advise the Court that an imminent fire risk existed. The Court noted that had full disclosure been made, the Order would never have been granted. The Court awarded costs to the defendant and stated that the failure to make full and frank disclosure was a "grievous sin" and that the award of costs was necessary to mark the Court's "severe displeasure".
Conclusion
The decision of the Court, and the significant criticism directed to the plaintiff, demonstrates the importance of making full disclosure of all relevant facts when applying for ex parte injunctive relief.
