NW Publishing UK Ltd v Newsweek Publishing LLC [2026] EWHC 1882 (Ch)

[2026] EWHC 1882 (Ch)

Case No CR-2025-005334

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

INSOLVENCY AND COMPANIES LIST (ChD)

Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NL

Date 30 July 2026

Before

ICC JUDGE AGNELLO KC

Between

NW PUBLISHING UK LTDApplicant

NEWSWEEK PUBLISHING LLCRespondent

Ms Jessica Brooke (instructed by Boodle Hatfield LLP) for Applicant

Mr Joseph Farmer (instructed by Pallas Partners LLP) for Respondent

Hearing Hearing date: 21 May 2026

JUDGMENT

ICC JUDGE AGNELLO KC:

[1]By application notice dated 4 August 2025, the Applicant company applied for an injunction restraining the Respondent company from presenting a winding up petition against the company based on the sums set out in the statutory demand dated 3 July 2025 or any part thereof. The grounds of the application are that the debt was disputed on grounds which are substantial. On 5 August 2025, on a without notice hearing, the court granted the injunction with the return date of the application listed for 15 September 2025. Prior to the hearing on 15 September 2025, the Respondent gave an undertaking not to present a petition. On 15 September 2025, the Respondent issued an application for the discharge of the injunction asserting that the Court was wrong to grant the injunction.

[2]The issue before me was one as to costs. I am not certain that the application to discharge the injunction really adds anything to the points being made by the Respondent as to why it should not be liable for the costs of the injunction application made by the Applicant. Before me, each side maintained that the other party should be liable for its costs.

[3]The Applicant asserts that costs should follow the event. It obtained an injunction and clearly it was entitled to the injunction because the Respondent thereafter gave a permanent undertaking. The Respondent asserts that:-(1) The Applicant acted unreasonably in making the injunction application. If it had given the Respondent an opportunity to respond to the email dated 4 August 2025, a satisfactory undertaking would have been provided and no application to court for an injunction would have been necessary;

(2) The Applicant failed to comply with its duty of full and frank disclosure and fair presentation in material respects;

(3) The Respondent provided an undertaking the day after the injunction was granted and therefore the Applicant has been unreasonable in not accepting the proposed offer relating to costs (being no order for costs);

(4) The Applicant adopted an unreasonable position overall in relation to the hearing on 15 September 2025;

(5) The failures in relation to full and frank disclosure would have led to the discharge of the injunction.

Legal principles as to costs

[4]There is agreement that costs are in the discretion of the court and that the general principle is that the unsuccessful party will be ordered to pay the costs of the successful party. It is open to the court to make a different order as is clear from CPR 44.2(1). In determining costs, the court will have regard to the circumstances of the case, including the conduct of the parties and whether a party has succeeded on part of its case even if the party has not been wholly successful. Additionally, any reasonable offer to settle made by a party is drawn to the court’s attention.

[5]In relation to winding up petitions and injunctions to restrain advertisement or presentation of a petition, reference was made to the well know case of Re A Company ( No 0012209 of 1991)

[1992] 1 WLR 351

. In that case Mr Justice Hoffman ( as he then was) ordered that the respondent company pay the costs of the injunction application made by the applicant company on the indemnity basis. This was because it was an abuse to present a petition based on a debt when the respondent company knew that it was disputed. The Judge held that the presentation of the petition is a therefore a high risk strategy taken by a proposed petitioner rather than seeking to bring ordinary proceedings and thereafter summary judgment. Full and frank disclosure

[6]There was also agreement in relation to the principles of full and frank disclosure. Taking the general principles from Mr Farmer’s skeleton:-(1) The duty of an applicant for a without notice injunction is to make full and accurate disclosure of all material facts and to draw the court's attention to significant factual, legal and procedural aspects of the case.

(2) It is a high duty and of the first importance to ensure the integrity of the court's process. It is the necessary corollary of the court being prepared to depart from the principle that it will hear both sides before reaching a decision, a basic principle of fairness. Derogation from that principle is an exceptional course adopted in cases of extreme urgency or the need for secrecy. The court must be able to rely on the party who appears alone to present the argument in a way which is not merely designed to promote its own interests but in a fair and even-handed manner, drawing attention to evidence and arguments which it can reasonably anticipate the absent party would wish to make.

(3) Full disclosure must be linked with fair presentation. The judge must be able to have complete confidence in the thoroughness and objectivity of those presenting the case for the applicant.

(4) Material facts are those which it is material for the judge to know in dealing with the application as made. The duty requires an applicant to make the court aware of the issues likely to arise and the possible difficulties in the claim, but need not extend to a detailed analysis of every possible point which may arise.

(5) Where facts are material in the broad sense, there will be degrees of relevance and a due sense of proportion must be kept. Sensible limits have to be drawn, particularly in more complex and heavy commercial cases where the opportunity to raise arguments about non-disclosure will be all the greater. The question is not whether the evidence in support could have been improved (or one to be approached with the benefit of hindsight). The primary question is whether in all the circumstances its effect was such as to mislead the court in any material respect.

(6) If material non-disclosure is established, the court will be astute to ensure that a claimant who obtains injunctive relief without full disclosure is deprived of any advantage he may thereby have derived.

(7) Whether or not the non-disclosure was innocent is an important consideration, but not necessarily decisive. Immediate discharge (without renewal) is likely to be the court's starting point, at least when the failure is substantial or deliberate. The court will discharge the order even if the order would still have been made had the relevant matter(s) been brought to its attention at the without notice hearing. This is a penal approach and intentionally so, by way of deterrent to ensure that applicants in future abide by their duties.

(8) The interests of justice may sometimes require that a freezing order be continued and that a failure of disclosure can be marked in some other way, for example by a suitable costs order. The court thus has at its disposal a range of options in the event of non-disclosure (Mex Group Worldwide Ltd v Ford

[2025] 1 WLR 975

at paragraphs 119-121 CA).

[7]The test of materiality of a matter not disclosed is whether it would be relevant to the exercise of the court’s discretion. A fact is material if it would have influenced the judge when deciding to make the order or deciding the terms upon which it should have been made. It is a matter for the court and not the subjective judgment of either the applicant or its lawyers (Alliance Bank JSC v Zhunus

[2015] EWHC 714 (Comm)

at paragraph 65). The overall question is whether the presentation of the application is fair in all material respects. Background

[8]The Applicant operates in the business of providing support and back-end services to digital news publications. Its sole director is Mr William Henry Dove. Until 2022, it formed part of the Newsweek business. The Respondent company is a US entity which forms part of Newsweek. The Applicant asserts that its activities contributed extensively to the success of Newsweek and its revenue streams including via the work of the skilled and experienced journalists employed by the Applicant. The Applicant relies upon what it calls the symbiotic relationship as between the Applicant and the Newsweek US entities. All the revenue of Newsweek was funnelled to the Newsweek entities in the US and payments to fund the Applicant’s activities (which is asserted were conducted entirely for the benefit of Newsweek) were transferred from the US as and when required by the Applicant.

[9]A lease was entered into by the Applicant on 21 February 2020 for the benefit of the Newsweek business. Prior to the entry into the lease, the Respondent transferred to the Applicant the rent deposit in the sum of £121,000 to pay the premises’ landlord. This demonstrated, according to the Applicant, its reliance upon the funding provided by the US entities and the symbiotic relationship. Both the Applicant and the Respondent executed the rent deposit deed which stated that the rent deposit belonged to the Applicant and that it was the Applicant who was entitled to the return of the deposit at the end of lease term.

[10]At the request of the landlord, the Respondent became the guarantor for the Applicant’s obligations under the lease, although no guarantee contract was executed as between the Respondent and the Applicant. When the lease term ended, the landlord retained the rent deposit to pay dilapidations. The Respondent asserts that the Applicant is required to pay to it a sum equivalent to the rent deposit which the Applicant asserts is contrary to the symbiotic relationship between the parties. According to the Applicant, its ability to pay depended upon the Respondent as the Applicant had no source of income other than the Newsweek entities.

[11]The Applicant’s case is that after a hive off of the Applicant’s business and assets by the Newsweek group, a new UK entity was set up to provide Newsweek with the services previously provided by the Applicant. The Applicant complains that the alleged hive off was wrongful and effectively deprived the Applicant of its ability to trade and generate revenue. In 2023, the Respondent entered into a settlement agreement with the landlord under which it paid £180,000 for outstanding rent and further dilapidations, pursuant to the guarantee in the lease. The Respondent asserts that the Applicant owes this sum to the Respondent.

[12]The sums set out in the statutory demand as being due from the Applicant to the Respondent therefore encompass two elements,(1) the rent deposit and

(2) the settlement sum under the settlement agreement. The Applicant asserts that it is not liable for either sum and that they are disputed on substantial grounds as summarised above based on the relationship as between the Applicant and the Respondent.

[13]Prior to issuing the injunction proceedings, the Applicant paid the settlement sum to the landlord. Subsequently, the landlord has transferred this sum to the Respondent. Whilst the Applicant disputes it was liable to pay either sum claimed, it maintains that it is not liable to pay the rent deposit sum to the Respondent.

The background to the injunction application

[14]The statutory demand was served on 3 July 2025. On 21 July 2025, the Applicant’s solicitors wrote to the Respondent’s solicitors disputing the debt and setting out its ground for the dispute. In particular, it asserted that the liability for the rent deposit was not the subject of any express agreement that the Applicant was liable to the Respondent bearing in mind the way the group operated at the time. It reserved its position in relation to the settlement sum. It asked for an undertaking that the Respondent would not present a winding up petition after the expiry of the period stipulated in the statutory demand.

[15]By a lengthy reply dated 24 July 2025 from the Respondent’s solicitors, the Respondent refused to provide the undertaking requested, but confirmed that no petition would be presented before 31 July 2025. The refusal to give the undertaking related to all the sums claimed in the statutory demand. Its letter set out its position relating to whether the debts claimed were disputed, effectively denying that there was any dispute in relation to both sums claimed in the demand. By email dated 28 July 2025, the Applicant’s solicitors sought a further 7 days extension, ‘so that we may take instructions and respond to your correspondence substantially’. The email stated that if the solicitors did not receive a response by 11 am the next day, then they would have no option but to start to prepare for an injunction application.

[16]By reply dated 28 July 2025, the Respondent’s solicitors refused to provide the requested extension. They did not provide an undertaking but did provide a shorter extension than the one sought. They confirmed that it would not present a petition before 5 August 2025.

[17]On 1 August 2025, the Applicant paid to the landlord the settlement sum of £180,000 and reminded it of its obligation to pass this on to the Respondent. By email dated 4 August 2025 timed at 10.54 am, being the day that the extension expired, the Applicant sought an undertaking which it had been requesting since its letter dated 21 July 2025. It also sought an extension to 15 August 2025. The email stated that the payment of £180,000 in relation to the settlement sum had been made by the Applicant to the landlord. The email denied that it had been provided with sufficient time to take instructions. There was no reply to this email prior to the Applicant applying to the court for an injunction.

[18]The application for an injunction was issued after hours on 4 August 2025 and heard before the judge on 5 August 2025 and granted with a return date of 15 September 2025.

[19]Thereafter, the order made was served upon the Respondent who provided by letter dated 6 August 2025 confirmation that a winding up petition would not be presented. Thereafter, the correspondence between the parties related to the liability for costs, with the Respondent’s solicitors proposing that no order for costs was the appropriate order and the Applicant’s solicitors seeking their costs of the injunction application. The Respondent’s solicitors also raised the issue that in their opinion there had been a failure of the duty of full and frank disclosure. The undertaking not to present a petition was not provided until the letter dated 5 September 2025. The Respondent’s solicitors asserted that the confirmation it had provided was adequate. In any event, the permanent undertaking was provided and is set out in the order dated 15 September 2025. On that basis, the injunction itself was no longer necessary. That order noted that the issue for the court was one of costs. It also noted the issue of the discharge application.

Submissions

[20]The Applicant submits that the debt was disputed on substantial grounds. Accordingly, it was an abuse of process for the Respondent to seek to issue a petition. In relation to the sums sought under the settlement agreement, it also disputed those sums, but had paid over those sums to the landlord prior to seeking an injunction. It submits that despite its request, the Respondent had refused to extend further than 5 August 2026 its confirmation not to present a winding up petition. It was therefore compelled to seek injunctive relief from the court. It submitted that it was not able to inform the Respondent of the application because it was concerned that such notification would cause a winding up petition to be issued as the extension which had been provided had by then expired. It submits that the assertion relating to any breach of the duty of full and frank disclosure are without merit.

[21]The Respondent submits in summary as follows:-(1) The injunction application was not necessary and was made precipitously;

(2) The application made failed to comply with the duty of full and frank disclosure; and

(3) the Applicant was unreasonable in not accepting the earlier offer relating to costs.

[22]The Respondent relies heavily on the fact that it provided confirmation that it would not present a petition based on the statutory demand the day after the injunction order was served. It submits that the correspondence made it clear that there was no justification for the Applicant to go to court and it should have instead sought a further confirmation/undertaking from the Respondent. The Respondent asserts that it would have provided such an undertaking and therefore there was no need to race to court.

[23]The Respondent considers the costs application being made in those circumstances by the Applicant to be unreasonable. Whilst in his skeleton, Mr Farmer appeared to be under the belief that the Applicant had belatedly conceded the discharge of the injunction, that point was not maintained. It is clear from the order of ICC Judge Prentis that the injunction was not necessary (and not given or continued) in that order because an undertaking had been given.

[24]Mr Farmer relies on the correspondence and in particular that the Applicant had sought further time in the email dated 4 August 2025 to obtain instructions and provide a substantive response. He complains that less than 4 hours after the email was sent, the Applicant made the injunction application without notice. He submits that no prior notice had been provided that the payment was made to the landlord of the settlement sum. No evidence of the payment of the sum to the landlord had been provided to the Respondent. The email did not state when the payment had been made. The payment was made to the landlord and not to the Respondent and no explanation was given as to why this was the case.

[25]Mr Farmer submits that the email dated 4 August 2025 contained no deadline for a response and did not state whether an application for an injunction would be made. Effectively, Mr Farmer submits that the Applicant had no reason to believe that the Respondent would not respond in good time to the Applicant’s further request for an extension. Mr Farmer asserts that it was open to the Applicant’s solicitors to contact the Respondent’s solicitors by further email or phone to seek confirmation that the Respondent would not file a winding up petition the next day.

[26]The Respondent submits that based on the payment asserted to have been made to the landlord, it was clear in those circumstances that the Respondent would not seek to file a winding up petition. As to the Re A Company ( No 0012209 of 1991) and the order sought for indemnity costs, Mr Farmer submits that this case is not authority for a proposition that indemnity costs is the usual order in cases where the petition is threatened based on a disputed debt.

[27]In relation to the duty of full and frank disclosure, the Respondent submits as follows :-(1) that there was a failure to disclose or fairly present the circumstances when the injunction application as made; and

(2) the relevant legal principles applicable to the two separate elements of the statutory demand were not fairly presented

[28]In relation to (1) above, the Respondent relies on the failure of the Applicant to present fairly the position in relation to the Respondent’s payment to the landlord on 1 August 2025. The Respondent submits that there was a failure to put the email of 4 August 2025 before the Judge and a failure to state that the payment to the landlord had not been notified by the Applicant to the Respondent until 4 August 2025, that the Respondent had not been provided with evidence that the payment had been made and that the Respondent would reasonably take steps to ascertain that the payment had indeed been made. There is a heavy reliance on a failure to inform the Respondent that an application for an injunction would be made. Reliance is also placed on the Respondent needing more time to respond to the email dated 4 August 2025. The Judge was not informed that the Respondent had always responded timeously to the Applicant and had acted reasonably. This is effectively a repeat of what is set out above namely, that it must have been obvious to the Applicant that the Respondent would not present a winding up petition for any part of the debts set out in the statutory demand where a payment of £180,000 had been made which consisted of 60% of the overall debt claimed in the statutory demand.

[29]In relation to ground (2), the Respondent asserts a failure of the Applicant to present the legal position of the two parts of the debt being claimed. The Respondent submits that the most obvious characterisation of the rent deposit transaction was a gift or loan. Instead the Applicant dealt with whether there were terms to be implied into a contract between the parties. In relation to the settlement sum debt, the Respondent submits that under the general principles of law and equity a guarantor is entitled to an indemnity by way of restitution from a primary obligor of the amount of the latter’s liability which the guarantor has been called to pay. The analysis presented was that of an implied term.

Discussion

[30]The Respondent elected to present a statutory demand based on two separate debts, being the settlement sum and the rent deposit. That was its choice. In my judgment, in doing so, it had expressly considered whether those debts were disputed. The correspondence between the parties leading up to the injunction application demonstrate that the Respondent was well aware of the grounds of the dispute in relation to the rent deposit. Its reply to the letter dated 21 July 2025 (which was the letter where the grounds of the dispute were set out by the Applicant’s solicitors) is a lengthy letter which shows a clear rejection of there being a disputed debt. This position was taken in relation to both parts of the debt. In my judgment, by the contents of this letter in reply, the Respondent made it clear that it rejected there being a disputed debt in relation to both debts in the statutory demand. It expressly rejected there being any dispute and furthermore refused to provide an undertaking of a permanent nature not to present a winding up petition. The Respondent provided a very short time limited confirmation not to present a petition. What was provided was less than what was sought by the Applicant. In my judgment, this approach by the Respondent heightened the risk that the Applicant would need to seek injunctive relief in a case where the Respondent rejected that there was a dispute. Even after being made aware of the dispute, the Respondent asserted that it was entitled to present a winding up petition. In my judgment, it makes no difference that the grounds of dispute were assessed to be weaker in relation to the settlement sum debt than the rent deposit debt. This is because the Respondent asserted an entitlement to present a petition in relation to both debts and not just the settlement sum.

[31]In my judgment, it also makes no difference that the Applicant paid a large part of sums being claimed in the statutory demand to the landlord shortly before seeking injunctive relief. The Respondent had made it clear that it rejected there being any dispute in relation to the rent deposit sum it asserted was owed. As the Respondent had elected to reject the dispute raised in relation to the rent deposit deed, the Applicant was entitled to seek injunctive relief. In cases where several debts are claimed in a demand, a debtor can pay the one which it admits and then seek relief in relation to that part of the debt which it disputes. That approach is common in these cases.

[32]Despite the submissions made, I do not accept that in some way the Respondent had been acting in a way whereby the Applicant knew (or ought to have known) that the Respondent would provide a further confirmation/undertaking thereby making the application for interim relief unnecessary. I do not accept that this was the conduct of the Respondent properly assessed. The Respondent had provided only a limited confirmation not to present a petition. It had refused a longer sought period. Moreover, it had made its position extremely clear in its letter dated 24 July 2025. When the email dated 4 August 2025 was sent by the Applicant, in my judgment, the Respondent was well aware that the confirmation it had provided expired that day. There was no explanation as to why no reply was provided by the Respondent on 4 August 2025. The Applicant was exposed to the risk of a petition being presented any time after the expiry of the period on 4 August 2025. In those circumstances, I accept the Applicant’s position that it did not inform the Respondent as being reasonable in all those circumstances. In my judgment, the Respondent would have been well aware that a failure to reply urgently to the 4 August 2025 email would in all likelihood cause the Applicant to seek interim relief from the court. Moreover the Respondent had already stated that it rejected the Applicant’s case on the grounds of the disputed debt.

[33]Equally, I reject that the contents of the email of 4 August 2025 whereby the Applicant’s solicitors stated that they needed more time to take instructions made any difference to the position. Regardless of that statement, the Respondent had already rejected the grounds provided by the Applicant asserting that the rent deposit deed debt was disputed. It makes no difference that ultimately once the Applicant obtained injunctive relief, the Respondent then gave an undertaking on a permanent basis. I also reject that the details of the payment made to the landlord and why it was not disclosed to the Respondent earlier makes a difference. There remained the rent deposit deed and the Respondent had made its position thereto clear.

[34]Whilst I accept that costs are in the discretion of the court, in my judgment, on the facts of this case, the order for costs should be made against the Respondent on an indemnity basis. It is an abuse of process to present a petition in relation to a debt which is disputed. It had pursued a high risk strategy in the knowledge that the debt was disputed. Full and frank disclosure

[35]The determinations which I have made above have a bearing on the full and frank disclosure grounds relied upon by the Respondent. I have rejected the submission of the Respondent that it was unnecessary for the Applicant to seek an injunction on the grounds that the Respondent would have provided an undertaking and that the Applicant should have waited for a reply to the email dated 4 August 2025. Accordingly, in my judgment, it was not material for the Judge to be informed that how the Respondent had responded in the past and what the Respondent perceived was its willingness to provide an undertaking if it had been asked. In my judgment, that is not, viewed objectively, the position of the Respondent when it had emphatically rejected that the debt was disputed. Equally I reject that the summary of the contents of the email of 4 August 2025 was insufficient for the purposes of full and frank disclosure. The Judge was informed of what was material. The Respondent had rejected that the rent deposit debt was disputed on substantial grounds. Issues relating to when the landlord had been paid are simply not material to the issue of the dispute or in some way material in relation to what the court needs to be aware of in making its determination. In the circumstances set out above, the Applicant was justified in seeking interim relief. It made no material difference to the judge that the email had stated that the Applicant sought further time to take instructions. Its case as to the dispute had been set out in the earlier letter. I do not accept that there was therefore any failure by the Applicant in its presentation of the case before the Judge. Any perceived material non disclosure was immaterial and mainly arose from the Respondent’s impression of its case rather than what the position is, viewed objectively, as I have determined above in the previous section.

[36]In relation to the legal principles relied upon as a ground of a failure of full and frank disclosure, I do not consider that what was presented by the Applicant can be challenged to the extent that it is a material non-disclosure. The legal principles were placed before the court. The grounds of the dispute and the asserted symbiotic relationship were presented to the court. What the Respondent is really criticising is the difference of legal analysis and a challenge to what the Respondent considers is the correct legal analysis. None of that detracts from the analysis presented by the Applicant relating to the symbiotic relationship. The challenge to the Applicant’s submission is that there was an implied term rather than arguing that it was a gift or a loan. In my judgment, these legal arguments are relevant to the determination of the dispute itself in normal court proceedings. That is not the same as the assessment by the court as to whether there is a dispute on substantial grounds. I reject this ground of full and frank disclosure as well. There was no material non-disclosure. The presentation of the application was fair in all material respects.

[37]As the Applicant has succeed in obtaining an order for costs, in my judgment, the Applicant was not unreasonable in refusing the earlier offer made as to costs, being each party pay its own costs. For the avoidance of doubt, I do not consider there is any conduct issue relating to the hearing on 15 September 2025. The Applicant succeeded in that a permanent undertaking was provided and the issue for costs was then adjourned to another date. In conclusion, the costs of the Applicant are to be paid by the Respondent on an indemnity basis.