Disputed Allegations, Fortification & Full-and-Frank Disclosure: A Commentary on Astor Asset Management 3 Ltd & Ors v Pliego & Anor ([2025] EWCA Civ 1060)

England and Wales Court of Appeal (Civil Division)  |  Judgment date: 31 July 2025

1. Introduction

Astor Asset Management 3 Ltd & others v Pliego & another concerns the perennial tension between speed and fairness in urgent injunctions. The Claimants (businessman Mr Salinas and his company RBS) had secured, on a without-notice basis, worldwide freezing orders and proprietary injunctions against Astor 3, Mr Sklarov, Vanderbilt and Astor Capital. The Defendants later sought to discharge those orders, alleging six instances of material non-disclosure. Mr Justice Calver rejected every ground. On appeal the Defendants pursued only one allegation – that the Claimants had concealed material relating to Mr Salinas’ wealth and probity.

The Court of Appeal (Sir Geoffrey Voz LJ delivering the leading judgment, with Laing LJ and Arnold LJ concurring) dismissed the appeal but, in doing so, laid down important guidance on:

• What constitutes a “material fact” for full-and-frank disclosure when the fact itself is hotly disputed;
• The different analytical lenses for ability and willingness to pay under a cross-undertaking or redemption offer;
• When, and how, the court should consider fortification of the cross-undertaking at the ex parte stage; and
• The dangers of a “scatter-gun” approach to allegations of non-disclosure.

2. Summary of the Judgment

1. The alleged non-disclosure focussed on press articles, regulatory proceedings and conflicting share-ownership figures said to cast doubt on Mr Salinas’ billionaire status and probity.
2. The Court restated the high duty of applicants but held:
   (a) Mere existence of disputed allegations does not oblige the court to resolve them at the without-notice hearing.
   (b) Nonetheless, the fact that the allegations have been made may itself be material and usually must be mentioned.
   
3. On the facts, the allegations were either trivial, stale, unsupported or obviously immaterial to the ability/willingness to pay the relevant US$114 million.
4. The first-instance judge had been correct to refuse discharge; the appellants’ “scatter-gun” strategy failed to identify a “big-ticket” piece of withheld information.

3. Detailed Analysis

3.1 Precedents Cited & Their Influence

• Kazakhstan Kagazy plc v Arip [2014] EWCA Civ 381 – Authority for refusing to conduct a “trial within a trial” on disputed facts at the disclosure stage; heavily relied on by both Calver J and the Court of Appeal.
• Tugushev v Orlov [2019] EWHC 2031 (Comm) – Carr J’s distillation of thirteen principles governing full-and-frank disclosure; reproduced and reaffirmed.
• Mex Group Worldwide Ltd v Ford [2024] EWCA Civ 959 – Coulson LJ’s warnings against disproportionate disclosure disputes (“law of diminishing returns”). Adopted here to criticise the appellants’ indiscriminate approach.
• Crown Resources AG v Vinogradsky (Unreported, 2001) – Toulson J’s guidance that non-disclosure arguments should not become preliminary trials; endorsed again.
• Block v Nicholson (1986) – Example where failure to reveal a pending fraud charge led to discharge; used to illustrate that undisputed allegations can indeed be material.
• Gee on Commercial Injunctions, 7th ed §9-009 – Quoted for the proposition that silence about means to satisfy a cross-undertaking invites fortification.

3.2 The Court’s Legal Reasoning

1. Materiality Framework
   • Materiality depends on the use the court might make of the fact at the ex parte hearing.
   • Disputed allegations can be material if their mere existence affects judicial discretion (e.g., adequacy of a cross-undertaking).
   • However, a judge is not obliged to resolve contested merits then and there.
2. Ability vs. Willingness to Pay
   • Ability: assets actually and realistically available.
   • Willingness: claimant’s probable cooperation with enforcement; indirect access to corporate or family wealth is relevant.
   • Different considerations drive whether fortification is required.
3. Fortification at Without-Notice Stage
   • Applicant must assist the court to quantify interim loss the defendant could suffer before the return date.
   • If insufficient financial information is given, the judge should normally require fortification.
4. Scatter-Gun Critique
   • Echoing Mex Group, the Court stressed that non-disclosure challenges should identify “big-ticket” items; trivial fines of US$34,000 cannot impeach a US$3.5 billion valuation.
5. Outcome on Facts
   • Press accusations, un-particularised tax disputes and an outdated SEC settlement (expired 2011) did not dislodge the unchallenged valuations from Forbes, Bloomberg and the public market.
   • Claimants’ evidence of a 30.47 % shareholding worth >US$3 billion was unrefuted.
   • Therefore, no material risk existed that Mr Salinas could not or would not honour a US$114 million obligation.

3.3 Potential Impact of the Judgment

• Clarity on Disputed Allegations – Litigants must now disclose the fact that serious allegations exist, but can legitimately say “these are disputed and will be tried later.”
• Structured Approach to Fortification – Judges (and applicants) must separately analyse (i) interim loss to the defendant before the return date, and (ii) the quantum of redemption or cross-undertaking liability.
• Encouragement of Proportionate Challenges – The Court’s endorsement of Mex Group’s “law of diminishing returns” is likely to deter speculative, multi-point discharge applications.
• Practical Guidance on Claimant Asset Disclosure – Applicants should provide headline net-worth information (supported by public valuations or independent data). Excessive detail is not mandatory, but silence is risky.

4. Complex Concepts Simplified

Full-and-Frank Disclosure

An applicant who seeks an injunction without giving notice to the other side must tell the judge everything that could reasonably affect the decision – including weaknesses in its own case and arguments the absent party might raise.

Without-Notice (Ex Parte) Application

A hearing where one side appears alone, usually because speed or secrecy is essential (e.g., risk of asset dissipation).

Cross-Undertaking in Damages

A promise by the applicant to compensate the respondent for any loss caused by the injunction if it later proves unjustified.

Fortification

An order that the applicant secure its cross-undertaking (often by paying money into court or providing a bank guarantee) when the judge doubts the applicant’s financial strength.

Proprietary Injunction vs. Freezing Order

• Proprietary Injunction preserves specific assets claimed to belong to the claimant.
• Freezing Order restrains the respondent from dealing with assets generally, to prevent dissipation before judgment.

Scatter-Gun Approach

Raising a large number of minor complaints hoping some will stick, rather than focusing on a few genuinely material points.

5. Conclusion

The Court of Appeal’s decision in Astor Asset Management v Pliego refines the doctrine of full-and-frank disclosure in three important ways:

1. Disputed allegations must be flagged if material, but judges are not required to adjudicate those disputes at the ex parte stage.
2. A structured, twin-track analysis of willingness and ability to pay informs both the adequacy of a cross-undertaking and any need for fortification.
3. Parties who allege non-disclosure must concentrate on “big-ticket” omissions; trivial or speculative points will not suffice.

Practitioners should treat the case as essential reading when preparing or challenging without-notice injunctions. It reinforces the need for balanced presentation, proportionate challenges, and practical evidence of financial standing. By dismissing the appeal yet clarifying the applicable principles, the Court has both preserved a robust remedy against fraud and safeguarded the integrity of the ex parte process.