Mr Justice Mostyn has recently issued guidance in relation to applications made without notice, which has been circulated via designated family judges. The purpose of this article is to distil the principles set out in that guidance.

Starting point

The starting point, as emphasised in Moat Housing Group-South Ltd v Harris [2005] EWCA Civ 287, is that no order should be made in civil or family proceedings without notice to the other side unless there is a very good reason for departing from the general rule that notice should be given. The Court of Appeal agreed, however, that that does not prevent the making of a without notice order of a non-intrusive type provided the on notice hearing takes place timeously.

When will without notice orders be granted?

  • Where there is a well-founded belief that the giving of notice would lead to irretrievable prejudice being caused to the applicant for relief: ND v KP [2011] EWHC 457 (Fam); O’Farrell v O’Farrell [2012] EWHC 123 (HC); Edgerton v Edgerton [2012] 1 FCR 421, (CA). The obvious example is a search or freezing injunction where the giving of notice would likely lead the respondent to take steps to defeat the purpose of the injunction.
  • Where there is some genuine and exceptional urgency, which means literally there is no time to give notice: CEF Holdings Ltd v City Electrical factors Ltd [2012] EWHC 1524 (QB).

What duties does the applicant have to fulfil?

  • The fullest and most candid disclosure: Re S (Child: Ex Parte Orders) [2001] 1 WLR 211; ND v KP.
  • Only to give information to the judge that can be revealed to the other side and to bring all that information to the attention of the party affected at the earliest possible opportunity: Re S.
  • The giving of and compliance with any undertakings in damages, not only to the respondent but also to any affected third party: Re S; UL v BK (below).

Lawyers beware

  • Information put before the court on a without notice application will be the subject of the closest scrutiny. Mere suspicion is not enough.
  • Any application must be based on facts and the evidence in support of the application must depose to those clear facts. The sources of information and belief must be clearly set out. See UL v BK (Freezing Orders: Safeguards: Standard Examples) [2013] EWHC 1735 (Fam), a judgment approved by the president.
  • If the applicant is not present in court to verify the information, it should be substantiated by the production of a contemporaneous note of the instructions. Additional oral evidence at the hearing should be committed to writing quickly. Those giving advice should rigorously consider whether the application was justified and the evidential basis for it: KY v DD [2011] EWHC 1277 (Fam); B v A [2012] EWHC 3127 (Fam).
  • If secrecy is not essential but there is some urgency, give short informal notice by phone or email: Civil Procedure Rule PD25A and Family Proceedings Rules 2010 PD20A; AB v Barristers Benevolent Association Ltd [2011] EWHC 3413 (QB). Any notice is better than none: National Commercial Bank Jamaica Ltd v Olint Corp Ltd (Jamaica) [2009] UKPC 16.
  • But, short notice does not absolve the applicant from their obligation to give full and frank disclosure: CEF Holdings Ltd.
  • If no, or no proper, notice can be given, include a statement supported by facts explaining fully and honestly why proper notice could not have been given. Also, include a statement setting out the duty to give full and frank disclosure and then indicate how that duty has been complied with: National Commercial Bank Jamaica Ltd.
  • If established principles and procedures are not applied, such failures may be treated as negligence and a foundation for the exercise of discretion to make a wasted costs order: B v A.

The form of order

A freezing order must:

  • clearly state on its face whether it is a worldwide freezing injunction or limited to England and Wales;
  • state on its face why no notice, not even short informal notice, has been given to the respondent;
  • contain an exception which allows for a specified amount to be spent by the respondent on weekly living expenses and legal advice, and for the disposal of assets in the ordinary and proper course of business. Note that a freezing injunction does not provide advance security for the claimant’s claims, unless there is some proprietary claim (O’Farrell);
  • contain an undertaking by the applicant to pay damages to the respondent or any third party caused loss by the order which the court may be of the opinion ought to be paid;
  • contain an undertaking by the applicant to pay the reasonable costs of anyone other than the respondent which have been incurred as a result of compliance with the order;
  • contain an undertaking by the applicant not, without the permission of the court, to use any information obtained as a result of the order for the purpose of any civil or criminal proceedings, other than the present claim, either in England and Wales, or in any other jurisdiction;
  • contain an undertaking by the applicant, without the permission of the court, not to seek to enforce the order in any country outside of England and Wales; and
  • contain a statement of the right of the respondent to apply within seven days to set the order aside: UL v BK.
  • These principles also apply in proceedings under the Children Act 1989: Re C (A Child) [2013] EWCA Civ 1412.

District Judge Julie Exton sits at Bristol Civil Justice Centre and is senior vice-president of the Association of Her Majesty’s District Judges

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