The comprehensive judgment of Mr Justice Mostyn in UL v BK (Freezing Orders: Safeguards: Standard Examples) [2013] EWHC 1735 (Fam) is absolutely essential reading for any practitioner specialising in financial remedy applications.

The comprehensive judgment provides a practical overview of without notice applications, procedural steps and provides useful comments on the use of illegally obtained documents in light of the Court of Appeal’s decision in Imerman.

Without notice applications

Judges in the Family Division have repeatedly expressed great concern at the number of without notice applications brought within the division. In FZ v SZ and Others (Ancillary Relief: Conduct: Valuations) [2010] EWHC 1630 (Fam), Mostyn J said: ‘In the short time that I have been sitting as a full-time judge I have been shocked at the volume of spurious ex-parte applications that are made in the urgent applications list.’ In ND v KP (ex-parte application) [2011] EWHC 457 (Fam), Mostyn J expressed the view that a without notice order is an ‘exceptional remedy’ and that no order should be made without notice to the other party unless there is very good reason for departing from the rule that notice must be given.

In UL v BK, Mostyn J summarised the relevant applicable principles to without notice applications as follows:

1. Practice Direction 18A, paragraph 5.1 of the Family Procedure Rules 2010 lists the circumstances in which an application may be made without notice as follows:

  • Where there is exceptional urgency;
  • Where the overriding objective is best furthered by doing so;
  • By consent of all parties;
  • With the permission of the court; l Where paragraph 4.9 of PD18A applies (that is, where a hearing date has been fixed, but there is insufficient time to file an application notice); and
  • Where a court order, rule or practice direction permits.

2. In accordance with Practice Direction 20A, paragraph 4.3(c) of the Family Procedure Rules 2010, except in cases where it is essential that the respondent must not be aware of the application, the applicant should take steps to notify the respondent informally of the application.

3. Mostyn J raised the bar higher by stating, ‘where the application for a freezing order is made ex-partethe applicant has to show that the matter is one of exceptional urgency [the emphasis marked by underlining is in the judgment]. Short informal notice must be given to the respondent unless it is essential that he is not made aware of the application. No notice at all would only be justified where there is powerful evidence that the giving of any notice would likely lead the respondent to take steps to defeat the purpose of the injunction…. cases where no notice at all can be justified are very rare indeed’.

Procedural considerations

In the case of UL v BK, the wife had already obtained a without notice freezing order, which was not in the standard form and omitted many of the standard safeguards, such as undertakings by the wife to pay damages to the husband or pay the reasonable costs of any third parties, nor did it state on its face why no notice or no short informal notice was given to the husband, or whether it was a world-wide freezing order or limited to England and Wales. The standard form for injunctions in civil proceedings is appended to Civil Procedure Rules PD25A, although no such equivalent form is appended to FPR 2010 PD20A, despite its wording being virtually identical to its counterpart in the CPR.

A copy of the standard CPR form was appended to Mostyn J’s judgment and should be used in all future applications for freezing orders. Mostyn J also stated that any departure from the standard form must be communicated to the judge hearing the without notice application.

This part of Mostyn J’s judgment was given with the specific authorisation of the president of the Family Division.

In his judgment, Mostyn J also reminded practitioners that where an application is made for a freezing order, and whether it is made under section 37 of the Matrimonial Causes Act 1973 or section 37 of the Senior Courts Act 1981 (Mostyn J expressed the view that there was no real difference between injunctions brought under either power), the applicant must show by reference to clear evidence that there is an unjustified dealing with assets (which would include threats) by the respondent giving rise to the conclusion that there is a solid risk of dissipation of assets to the applicant’s prejudice. Such an unjustified dealing will normally give rise to the inference that it is done with the intention of defeating the applicant’s claim.

Practice Direction 22A, paragraph 4.3 of the FPR 2010 deals with affidavits/witness statements. The paragraph specifically provides that a statement must indicate the source for any matters of information and belief. Mostyn J commented that this should amount to ‘evidence of objective facts’; accordingly, ‘mere expressions of suspicion or anxiety’ were insufficient. The sources of information and belief must be clearly set out.

Where the application is made with no notice or short informal notice only is given, the applicant is fixed with a high duty of candour. Breach of that duty will likely lead to a discharge of the order.

Use of illegally obtained documents

In his judgment in UL v BK, Mostyn J also provides some clear and useful guidance in applying the principles set down by the Court of Appeal in Tchenguiz v Imerman [2010] EWCA Civ 908. The principles he sets out are as follows:

1. It is simply and categorically unlawful for a wife to breach her husband’s privacy by copying his documents, regardless of whether they are hard copies or electronic copies.

2. If a wife does take such steps, she not only faces criminal penalties, but also risks being sued by her husband for breach of confidence and misuse of his private material.

3. If a wife supplies such documents to her solicitor, the solicitor must not read them and must immediately seek to obtain all of the documents from the wife and must return them, together with all copies to the husband’s solicitor. In turn, the husband’s solicitor, who owes a high duty to the court, will read them and disclose those of them that are both admissible and relevant to the wife’s claims, pursuant to the husband’s duty of full and frank disclosure. If for any reason the husband’s solicitor is disinstructed, the solicitor must retain those documents pending a further order of the court.

4. In the event that the husband does not have a solicitor, then the wife’s solicitor must retain the documents, unread, and in sealed files and must approach the court for directions. The directions will likely be to the effect that the wife will pay for an independent lawyer to be instructed to determine which of those documents are admissible and relevant to the wife’s claim. Copies can then be provided to the wife’s solicitor before the files of documents are returned to the husband.

Perhaps what is of principal interest to practitioners is whether the stern warnings on without notice applications will be reflected in the practice adopted in county courts across the country. Although perhaps not as common as they used to be, in practice a without notice order has not been viewed by many as an ‘exceptional remedy’.

Andrew Newbury, Pannone

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