Astor Asset Management 3 Ltd v Pliego [2025] EWCA Civ 1060

The Court of Appeal (Arnold, Popplewell and Elisabeth Laing LJJ) has dismissed a challenge, by the principal defendants to a $400m fraud claim, to the grant of a WFO in support of the claim.

On appeal Ds contended that Cs had breached the duty of fair presentation (aka the duty of full and frank disclosure) on the without notice application for the WFO by failing properly to present Cs’ willingness and ability to meet the cross-undertaking in damages and other sums (Ds having unsuccessfully pursued five other alleged grounds of alleged unfair presentation below).

The Court unanimously rejected both complaints, with Popplewell LJ giving the lead judgment. On willingness to pay, the Court found that the material relied on by Ds “provide[s] no evidence of a refusal to honour an undisputed final judgment. There is nothing in that material to suggest a want of probity by any of [C’s] companies, let alone any want of probity on his own part” ([31]); while, as regards ability to pay, the Court found (at [33]) that “having considered [all relevant material] I am quite satisfied that it does not suggest that there is any real reason to doubt that [C] is an exceedingly wealthy man who would be able to pay… or that there was any failure to make adequate disclosure of matters which were material to the claimants’ ability to pay”.

In so finding, Popplewell LJ reiterated the Court’s deprecation of a “scattergun” approach to discharge applications, endorsing similar observations from Coulson LJ and Males LJ in Mex Group v Ford and National Bank Trust v Yurov and Carr J in Tugushev v Orlov,  and holding (at [18]) that a “substantial number of the… matters relied on… were so far removed from being ticket items that they could not assist, even on some cumulative basis, in establishing material non-disclosure”. The Court also provided useful guidance (at [20]) on the position of claimants with numerous assets across various holding structures: “If the claimant is to be treated as willing to meet such a payment, then what matters is access to funds so as to be able to do so, not whether they have assets in their own name. Many wealthy people and organisations have an interest in, or access to, funds which are held in the names of other entities through arrangements made for good commercial or tax reasons. If there is no reason to doubt their willingness to meet an adverse payment order, the focus of the inquiry when addressing ability to pay is on assets to which they would have access, however indirectly, not merely those in their own name.”

To read the full judgment, please click here.

Adam Cloherty KC acted for the successful claimants/respondents, instructed by Adam Flacks and Caroline Phipps of LK Law LLP.