Gulf Air BSC (C) v One Inflight Ltd & Ors  EWHC 1019 (Comm).
The Commercial Court recently gave guidance on the interchangeable use of the terms 'knowledge' and 'belief' in Gulf Air BSC (C) v One Inflight Ltd & Ors  EWHC 1019 (Comm).
This was a dispute over an In-Flight Entertainment Contract ("IFE Contract") entered between Gulf Air B.S.C ("Gulf Air") and an entity referred to as Global One Media ("Global One") whereby Global One was to provide the IFE Contract services. In fact, Global One did not exist. Instead the services were provided by another entity, One Inflight Limited ("Inflight") and a similar sounding, but different entity, Global One Media Limited, which were corporate vehicles for two former employees of Gulf Air. Gulf Air believed that the IFE Contract was a vehicle for fraud in that the two former employees conspired against it, in breach of their employment and fiduciary duty, to ensure that Gulf Air gave the IFE Contract to Global One.
Gulf Air applied for and was granted a freezing injunction against the defendants at a hearing before Bryan J on 5 December 2017. The freezing injunction was continued (albeit with certain modifications) at the return date on 19 December 2017 by Nicholas Vineall QC.
The fourth defendant applied to have the worldwide freezing injunction set aside and advanced a number of arguments in support. At the hearing before Bryan J, Counsel for Gulf Air had stated that Gulf Air "know" the frozen account is operated by the Fifth respondents and could provide an affidavit to show that. Bryan J asked that they produce the affidavit which they did. However, the affidavit stated that Gulf Air "believe that the [frozen account] is operated by the Fifth Respondent...". The fourth defendant submitted that the use of the word 'believe' at the start of the paragraph amounts to something less than the word 'know', and the account may actually be operated by the seventh respondent. Counsel for the fourth defendant submitted that this lead to the 'inevitable conclusion' that the applicant made a material non-disclosure of fact in obtaining the freezing injunction which should now be discharged.
Mr Justice Picken rejected the distinction between knowledge and belief and found that "The fact that one of them used the word "know" and the other used the word "believe" is nothing to the point". Moreover, he was "quite clear that, in context, there was [no] distinction between the use of the word "know" and the use of the word "believe"" and in any event any distinction "is as artificial as it is inapposite." It followed that he also rejected the submission that the applicant had breached their duty of full and frank disclosure. The freezing injunction remained in place.
It is always advisable to ensure that the wording in a witness statement is consistent with representations made to a judge or stated in any pleadings as this would reduce the risk of your opponent taking up points grounded in semantics in the first place.
Conversely, as clearly shown by Mr Justice Picken, the court will look to the substance of the representation made when considering whether there has been an inconsistency such as to amount to a material non-disclosure.
020 7842 1650
Sam is an associate in the commercial litigation team. He is developing a broad practice comprising high value, complex contractual disputes, civil fraud litigation and insolvency matters.