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Home > Articles > 2014 archive

Applications Without Notice: A Practitioner’s Guide

Rodney Noon, solicitor, provides a detailed review of the law and practice of – and the court’s attitude to – without notice applications in family proceedings.

Rodney Noon, Solicitor


















Rodney Noon, solicitor, Aarons Solicitors, Halifax


Overview

Recently there have been a substantial number of appeal decisions giving guidance on how and when applications should be granted on a without notice basis. A clear and consistent picture is now emerging and the objective of this article is to provide the practitioner with comprehensive, up to date guidance either when making such applications or when challenging orders made on such a basis.

A number of general points can be made at the outset. Firstly, it is clear that the current tide of judicial thought is running strongly against orders without notice save in fairly narrowly defined circumstances. Experience suggests that this thinking is not yet being universally applied at lower levels of the Family Court and so there is a greater need for advocates to remind the court of the hurdles which they are now required to surmount and the manner in which (they contend) the relevant tests are passed and how the order (if granted) should be drawn. As will be seen below, there can be costs consequences in the form of wasted costs orders where orders are obtained improperly.

There can be little doubt that an order which restricts, even on a short term basis, the rights of an individual, including their ability to exercise their parental responsibility for a child, is a substantial derogation from the most basic principles of natural justice and may similarly engage both articles 6 and 8 ECHR.

That is not to say that such orders do not have a legitimate role to play. Neither the Human Rights Act 1998 nor Strasbourg jurisprudence absolutely prohibits orders being made without notice in strictly limited and extreme circumstances. Without notice orders removing children from parents have been approved by the European Court in, for example, P, C & S v The United Kingdom [2002] 2 FLR 631 and Covezzi v Italy (2003) 38 EHRR 28.

The Family Procedure Rules 2010 at para 5.1 of PD18A make a general provision for such applications as follows:

"An application may be made without service of an application notice only –

(a) where there is exceptional urgency;

(b) where the overriding objective is best furthered by doing so;

(c) by consent of all parties;

(d) with the permission of the court;

(e) where paragraph 4.9 applies; or

(f) where a court order, rule or practice direction permits."

Applications on a without notice basis are, of course, not confined to the Family Court and there is therefore a raft of jurisprudence from the Chancery and Queen's Bench Divisions on the manner in which and when such applications should be made. There is, as a matter of common sense, no reason why the approach taken to such applications should be any different in the Family Court from other civil proceedings; however as Charles J sets out in B v A [2012] EWHC 3127 (Fam) this is often not the case in practice.

"11. Both Theis J and I (in B Borough Council v S) point out in restrained terms that the principles and  procedures in respect of without notice applications that are clearly established by authority are regularly not followed in the Family Division.

12. This case provides an example of this.  To my mind, this regular and flagrant failure by many practitioners and judges is contrary to the public interest.  I, and some of the other judges of the Division, try to bring about necessary and much needed changes when dealing with without notice applications (particularly in the Applications Court).  But sadly, this case is a clear demonstration that we have not succeeded and that a number of our colleagues do not take the same approach.  So the serious failings are endemic amongst many family practitioners and judges who have been family practitioners.

13. As mentioned in B Borough Council v S, I recognise that there is a natural temptation for applicants to seek, and for courts to grant, relief to protect the vulnerable, and, I add, to find children who it is alleged have been abducted.   But this temptation, and the strong public interest in granting such relief, does not provide an excuse for failures to apply the correct approach in law to such applications.  Indeed, if anything, the strong public interest in providing such relief and its impact on the subjects of the relief and their families mean that the correct approach in law should be followed and so the sound reasons for it, based on fairness, should be observed."

The correct approach has been clearly set out on a number of occasions and is to be found in the judgments of Munby J (as he then was) in Re W (Ex Parte Orders) [2000] 2 FLR 927 and Re S (Ex Parte Orders) [2001] 1 FLR 308. These include the applicant providing full and frank disclosure of all the known circumstances and the resulting order recording on its face all of the evidence considered by the court in deciding to make the order. Unfortunately, as Theis J remarks in KY v DD (Injunctions) [2011] EWHC Fam 1277, these principles have been "observed more in the breach than the observance".

His judgment in B v A was not the first time Charles J had looked at applications for ex parte relief. The judge goes on to refer to guidance which he gave in B Borough Council v S & Anor [2006] EWHC 2584 as follows:

"37. There is a natural temptation for applicants to seek, and courts to grant, relief to protect vulnerable persons whether they are children or vulnerable adults. In my view this can lead (and experience as the applications judge confirms that it does lead) to practitioners making without notice applications which are not necessary or appropriate, or which are not properly supported by appropriate evidence. Also there is in my view a general practice of asking the court to grant without notice orders over a fairly extended period with express permission to apply to vary or discharge on an inappropriately long period of notice (often 48 hours). It seems to me that on occasions this practice pays insufficient regard to the interests of both the persons in respect of whom and against whom the orders are made, and that therefore on every occasion without notice relief is sought and granted the choice of the return date and the provisions as to permission to apply should be addressed with care by both the applicants and the court. Factors in that consideration will be an estimation of the effect on the person against whom the order is made of service of the order and how that is to be carried out.

38. Inevitably on a without notice application the court hears from only the applicant. Good practice, fairness and indeed common sense demand that on any such application the applicant should provide the court with:

i) a balanced, fair and particularised account of the events leading up to the application and thus of the matters upon which it is based. In many cases this should include a brief account of what the applicant thinks the respondent's case is, or is likely to be,

ii) where available and appropriate, independent evidence,

iii) a clear and particularised explanation of the reasons why the application is made without notice and the reasons why the permission to apply to vary or discharge the injunction granted should be on notice (rather than immediately or forthwith as in the standard collection and location orders) and why the return date should not be within a short period of time. As to that I accept and acknowledge that a reference to notice being given if practicable, or for a short period of notice (say 2 working hours or just two hours if a week end or holiday period is imminent), may often provide an appropriate balance to avoid a sequence of effectively without notice applications, and that in some cases a longer period of notice may be appropriate, and need for, and the proportionality of, the relief sought and granted."

It is suggested that the matters set out by Charles J at para 38 above should be at the side of every practitioner, by way of a check list, before and during the drafting of an application for a without notice order.

Finally, and before turning to look at specific types of application, note should be taken of the additional comments made by Theis J.in KY v DD (Injunctions), above, where she says:

"16. As well as endorsing the guidance set out above, there are three additional comments I would make:

(1) If information is put before the court to substantiate a without notice order, it should be the subject of the closest scrutiny and, if the applicant is not present  in person to verify it, be substantiated by production of a contemporaneous note of the instructions. If that is not available, there may need to be a short adjournment to enable steps to be taken to verify the
information relied upon.

(2) If additional information is put before the court orally, there must be a direction for the filing of sworn evidence to confirm the information within a very short period of time. If that direction had not been made in this case, the passport order would have been executed when the grounds for obtaining it were simply not there. That would have involved a gross breach of the defendant's rights, quite apart from the court having been given misleading information.

(3) Lastly, leaving the scrutiny that the court should give to without notice applications to one side, it is incumbent on those advising whether such an application is justified to consider rigorously whether an application is justified and be clear as to the evidential basis for it."


Public law cases

One of the first and clearest decisions showing the turn of the judicial tide on without notice applications in family cases was the decision of Munby J. in X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam), [2005] 1 FLR 341. Practitioners, almost inevitably, suffer from a lack of authoritative guidance on short term orders because they either expire or return for reconsideration before there is time for an appeal. Presumably for this reason, there had not previously been much in the way of clear guidance on the making of EPOs. Munby J set out his guidance in 14 detailed points of which the following are of particular importance both as to whether the application should be heard on a without notice basis at all and if so the approach to be taken:

"(v) No EPO should be made for any longer than is absolutely necessary to protect the child. Where the EPO is made on an ex parte (without notice) application very careful consideration should be given to the need to ensure that the initial order is made for the shortest possible period commensurate with the preservation of the child's immediate safety.

(vi) The evidence in support of the application for an EPO must be full, detailed, precise and compelling. Unparticularised generalities will not suffice. The sources of hearsay evidence must be identified. Expressions of opinion must be supported by detailed evidence and properly articulated reasoning.

(vii) Save in wholly exceptional cases, parents must be given adequate prior notice of the date, time and place of any application by a local authority for an EPO. They must also be given proper notice of the evidence the local authority is relying upon.

(viii) Where the application for an EPO is made ex parte the local authority must make out a compelling case for applying without first giving the parents notice. An ex parte application will normally be appropriate only if the case is genuinely one of emergency or other great urgency – and even then it should normally be possible to give some kind of albeit informal notice to the parents – or if there are compelling reasons to believe that the child's welfare will be compromised if the parents are alerted in advance to what is going on.

(ix) The evidential burden on the local authority is even heavier if the application is made ex parte. Those who seek relief ex parte are under a duty to make the fullest and most candid and frank disclosure of all the relevant circumstances known to them. This duty is not confined to the material facts: it extends to all relevant matters, whether of fact or of law.

(x) Section 45(7)(b) of the Children Act 1989 permits the FPC to hear oral evidence. But it is important that those who are not present should nonetheless be able to know what oral evidence and other materials have been put before the FPC. It is, therefore, particularly important that the FPC complies meticulously with the mandatory requirements of rr 20, 21(5) and 21(6) of the Family Proceedings Courts (Children Act 1989) Rules 1991. The FPC must 'keep a note of the substance of the oral evidence' and must also record in writing not merely its reasons but also any findings of fact.

(xi) The mere fact that the FPC is under the obligations imposed by rr 21(5), 21(6) and 21(8), is no reason why the local authority should not immediately, on request, inform the parents of exactly what has gone on in their absence. Parents against whom an EPO is made ex parte are entitled to be given, if they ask, proper information as to what happened at the hearing and to be told, if they ask: (i) exactly what documents, bundles or other evidential materials were lodged with the FPC either before or during the course of the hearing; and (ii) what legal authorities were cited to the FPC. The local authority's legal representatives should respond forthwith to any reasonable request from the parents or their legal representatives either for copies of the materials read by the FPC or for information about what took place at the hearing. It will, therefore, be prudent for those acting for the local authority in such a case to keep a proper note of the proceedings, lest they otherwise find themselves embarrassed by a proper request for information which they are unable to provide."

The suggestion that where full, proper notice cannot be given, consideration should be given to shorter, informal notice is a matter which, as will be seen below, has been taken up again in other areas.

The guidance in this case was subsequently endorsed by McFarlane J (as he then was) in Re X (Emergency Protection Orders) [2006] EWHC 510 (Fam). In that decision the judge adds to the guidance in relation to the recording of the hearing and the subsequent provision of information about the hearing to the parents which he felt should not depend on them making a request for it.


Freezing injunctions

In financial remedy proceedings the court has the power to grant an injunction freezing all or part of the other party's assets to prevent their disposal so as to frustrate the applicant's claims. Such applications are often (for obvious reasons) initially made without notice to the other party.

Orders of this kind have been the subject of a comprehensive review by Mostyn J in UL v BK (Freezing Orders: Safeguards: Standard Examples) [2013] EWHC 1735 (Fam). The judge considers when and how an application should be made without notice. He begins his consideration of such applications with the judgment of Lord Hoffman in National Commercial Bank Jamaica Ltd v Olint Corp (Jamaica) [2009] UKPC 16 where he held:

"Their Lordships therefore consider that a judge should not entertain an application of which no notice has been given unless either giving notice would enable the defendant to take steps to defeat the purpose of the injunction (as in the case of a Mareva or Anton Piller order) or there has been literally no time to give notice before the injunction is required to prevent the threatened wrongful act. These two alternative conditions are reflected in rule 17.4(4) of the Civil Procedure Rules 2002. Their Lordships would expect cases in the latter category to be rare, because even in cases in which there was no time to give the period of notice required by the rules, there will usually be no reason why the applicant should not have given shorter notice or even made a telephone call. Any notice is better than none."

The issue of short informal notice had been further considered by Tugendhat J in O'Farrell v O'Farrell [2012] EWHC 123 (QB) where he had put the matter in fairly robust terms:

"In these days of mobile phones and emails it is almost always possible to give at least informal notice of an application. And it is equally almost always possible for the Judge hearing such an application to communicate with the intended defendant or respondent, either in a three way telephone call, or by a series of calls, or exchanges of e-mail. Judges do this routinely, including when on out of hours duty. Cases where no notice is required for reasons given in PD 25A para 4.3(3) ['where secrecy is essential'] are very rare indeed. ... The giving of informal notice of an urgent application is not only an elementary requirement of justice. It may also result in a saving of costs. The parties may agree an order, thereby rendering unnecessary a second hearing on a return date."

In the context of an application for a freezing order made in the family jurisdiction Mostyn J sets out the position in the following very clear terms:

"v) Where the application for a freezing order is made ex parte the applicant has to show that the matter is one of exceptional urgency. 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, or where there is literally no time to give any notice before the order is required to prevent the threatened wrongful act. Cases where no notice at all can be justified are very rare indeed. The order of the court should record on its face the reason why it was satisfied that no or short notice was given."

The constant problem for practitioners, of course, is that this is all well and good but if the order has been obtained, what sanction is there against those who have abused the court's powers. The judge notes the power of the court to make wasted costs orders in this context; however a further potential answer is to be found in Mostyn J's application of the re-grant test.

In UL the wife had brought her application on the basis of wrongfully obtained documents from the husband and there was found to be a significant lack of candour in her application. The judge refers to the ability of the court in such circumstances to refuse to re-grant the order at the hearing on notice, not because such an order is not in any event appropriate, but by way of a sanction for the way in which the without notice order was initially obtained. The principles on which this power may be exercised are gathered together in the judgment of Mr Alan Boyle QC in Arena Corporation v Schroeder [2003] EWHC 1089 (Ch) as follows:

"(1) If the court finds that there have been breaches of the duty of full and fair disclosure on the ex parte application, the general rule is that it should discharge the order obtained in breach and refuse to renew the order until trial.

(2) Notwithstanding that general rule, the court has jurisdiction to continue or re-grant the order.

(3) That jurisdiction should be exercised sparingly, and should take account of the need to protect the administration of justice and uphold the public interest in requiring full and fair disclosure.

(4) The court should assess the degree and extent of the culpability with regard to non-disclosure. It is relevant that the breach was innocent, but there is no general rule that an innocent breach will not attract the sanction of discharge of the order. Equally, there is no general rule that a deliberate breach will attract that sanction.

(5) The court should assess the importance and significance to the outcome of the application for an injunction of the matters which were not disclosed to the court. In making this assessment, the fact that the judge might have made the order anyway is of little if any importance.

(6) The court can weigh the merits of the plaintiff's claim, but should not conduct a simple balancing exercise in which the strength of the plaintiff's case is allowed to undermine the policy objective of the principle.

(7) The application of the principle should not be carried to extreme lengths or be allowed to become the instrument of injustice.

(8) The jurisdiction is penal in nature and the court should therefore have regard to the proportionality between the punishment and the offence.

(9) There are no hard and fast rules as to whether the discretion to continue or re-grant the order should be exercised, and the court should take into account all relevant circumstance."

In UL, Mostyn J confirmed that these principles were fully applicable in the context of an application for a freezing order. The judge refused to renew the ex parte freezing order whilst making it clear that if the wife had complied fully with her duty of candour when she made her initial application and complied with the relevant principles, it was "distinctly possible" that the order she sought would have been granted. She therefore had only herself (or her advisors) to blame.


Non-molestation orders

It has been, at least in the writer's experience, the exception for the initial hearing of such an application to be on notice (of any kind) to the respondent. The applicant is often living under the same roof as the respondent and has well founded fears of the consequences if they were required to notify their abuser several days before any protective order was in place. To meet this need s45 Family Law Act 1996 sets out the circumstances in which an order may be made without notice being given:

"(1) The court may, in any case where it considers that it is just and convenient to do so, make an occupation order or a non-molestation order even though the respondent has not been given such notice of the proceedings as would otherwise be required by rules of court.

(2) In determining whether to exercise its powers under subsection (1), the court shall have regard to all the circumstances including—

(a) any risk of significant harm to the applicant or a relevant child, attributable to conduct of the respondent, if the order is not made immediately;

(b) whether it is likely that the applicant will be deterred or prevented from pursuing the application if an order is not made immediately; and

(c) whether there is reason to believe that the respondent is aware of the proceedings but is deliberately evading service and that the applicant or a relevant child will be seriously prejudiced by the delay involved—

(i) where the court is a magistrates' court, in effecting service of proceedings; or

(ii) in any other case, in effecting substituted service.

(3) If the court makes an order by virtue of subsection (1) it must afford the respondent an opportunity to make representations relating to the order as soon as just and convenient at a full hearing."

Even where the allegations were very much at the lower end of the scale in terms of gravity, a statement by the applicant to the effect that without an immediate order and the protection this would afford they would be too afraid of the consequences to make the application is difficult for a judge, in the middle of a busy list, to go behind. The fact that the behaviour to be restrained would be (for the most part at least) a crime in any event has probably led to a more relaxed approach to such applications. It is at least arguable that such an approach should have ended with the addition in 2007of criminal sanctions under s45A.

A long overdue review of such orders has now been undertaken by Mostyn J in JM v CZ [2014] EWHC 1125 (Fam). In this case an application had been made in the Principal Registry for a non-molestation order. The application was made without notice to the respondent on 20th December 2013. Following the then usual practice in that court, an order was made for 12 months but with provision that the respondent could apply on 48 hours notice to vary or discharge it. The matter was also listed for review on 16th May 2014.

Considering the matter Mostyn J made the following important points which practitioners should be familiar with when dealing with cases of this kind.

1. The learned judge was quite clear that the provision allowing the respondent to apply to discharge or vary the order did not comply with the statutory requirements of s45(3) for a full hearing "as soon as just and convenient". This view is consistent with the views of Ward LJ in Horgan v Horgan [2002] EWCA Civ 1317.

2. The practice of not listing an immediate return date had been adopted in the Principal Registry (and other courts) because often the respondent did not turn up at the hearing on notice and time was wasted out of a busy and overstretched court list. Mostyn J expressed approval of an alternative procedure put forward by leading counsel for the applicant that the court might list a return date within 14 days but with the proviso that if the respondent failed to notify the court and the applicant in writing within 7 days of his intention to attend, the hearing would be vacated. The judge felt that this struck the right balance.

3. The judge refers back to the decision he made the previous year in UL v BK (above) and explains that the principles set out there about giving at least short, informal notice are fully applicable to applications for a non-molestation order. Practitioners should therefore be prepared to give informal notice by way of mobile telephone call, text or email or to justify to the court why it is not possible for such notice to be given. If no such notice is given judges should become much more willing to stand the case down for some notice to be given before any order is made.

4. The issue also arises as to whether the re-grant test is applicable to such proceedings. Mostyn J confirms at para 16 that the test does apply with the following rider:

"...but it is to be tempered by the fact that the Part IV proceedings are not financial proceedings, whereas plainly Mr Boyle QC, in devising his nine propositions which drew upon many authorities, was concerned with a commercial dispute that was purely monetary."

17. Plainly, in Part IV proceedings the refusal to re-grant, as he says in proposition 7, "should not be allowed to become an instrument of injustice".  If an ex parte order has been discharged because of, say, lack of candour or because notice ought to have been given but it is clear that the applicant is in need of protection, it would not be right – and it would be unjust – if the principles in Arena Corporation were applied to refuse to re grant the application."

5. The respondent in JM had offered a compromise on the basis of cross undertakings which was rejected by the applicant but subsequently settled on this basis just before the hearing. The applicant was ordered to pay the respondent's costs assessed summarily at £34,200.

Private law Children Act applications

The first point to make is that all of the principles set out above in relation to short, informal notice, candour and the form and content of the order are equally applicable to these matters. Although yet to be judicially considered it is suggested that the re-grant principles are applicable but very substantially tempered by the paramountcy principle in s1(1) Children Act 1989.

There are long standing principles cautioning against making changes to a child's residence on a without notice basis. In Re G (Minors) (Ex Parte Interim Residence Order) [1993] 1 FLR 910 it was stated that ex parte interim residence orders ought to be very rare and should be confined to a true "snatch" situation. If there is no risk of harm to the child (such as where a child is simply being retained after an agreed period of contact), then an early application on notice is to be preferred. Ex parte orders for the return of the child require "the most compelling circumstances" (M v C (Children Orders: Reasons) [1993] 2 FLR 584).

On the issue of without notice applications generally, the Child Arrangements Programme (PD12B) has clear provisions about when a without notice application should be made in private law children cases. Echoing much of what has been said by the courts in the cases outlined above and clearly written to be used by litigants in person, para 12.3 provides:

"Without Notice Orders should be made only exceptionally, and where –

(1) If the applicant were to give notice to the respondent(s) this would enable the respondent(s) to take steps to defeat the purpose of the injunction; cases where the application is brought without notice in order to conceal the step from the respondent(s) are very rare indeed; or

(2) The case is one of exceptional urgency; that is to say, that there has been literally no time to give notice (either by telephone, text or e-mail or otherwise) before the injunction is required to prevent the threatened wrongful act; or

(3) If the applicant gives notice to the respondent(s), this would be likely to expose the applicant or relevant child to unnecessary risk of physical or emotional harm."

Paragraph 12.4 goes on to remind everyone that where the order is made it must set out on its face why the order was made without notice to the other party.

There has also been recent Court of Appeal guidance on without notice orders in children cases and particularly prohibited steps orders. In Re C (A Child) [2013] EWCA Civ 1412, Ryder LJ was dealing with a case where, after an acrimonious separation with disputes about direct contact, the mother applied to the court on a without notice basis for a prohibited steps order to prevent the father removing the child from school or from her care. There was a lack of detail, particularity in the papers, but it seems that the father was alleged to have threatened to come and see the child without the mother's consent. The district judge granted the order and the father (later in the proceedings) appealed. Lord Justice Ryder identifies a litany of errors in the making of the order which can be summarised as follows:

1. Evidence had been given orally at the hearing. The details of the evidence were neither set out on the face of the order nor was there a direction made for a statement to be filed.

2. The order did not contain (as required by rule 18.10(3) FPR) a statement of the respondent's right to apply to set aside or vary the order. There was no reason why any such application should be restricted (as the order did) to an application on 24 hours notice. The judge explains that the phrase 'liberty to apply on 24 hours notice' is simply inapt in the face of the rules or for a litigant in person who has to understand without legal advice what the order means.

3. Exceptional urgency was required to justify an order being made on a without notice basis. Nowhere in the papers was the evidence set out to justify such urgency. As to what may amount to exceptional urgency Ryder LJ offers the following guidance at para 17. There are ordinarily two bases for exceptional urgency: the imminence of the event to be prohibited (and hence usually of the risk of harm to the child) or the need to make an order about that event without alerting the respondent, i.e. where notice would arguably defeat the ends of justice.

4.The prohibited steps order was expressed to be made without limit of time. Ryder LJ held that this was completely inappropriate at a without notice hearing and that the order should only be made to a finite date and this should be clear on the face of the order. The learned judge points out that the order restricts the parent's exercise of his or her parental responsibility. Since cases are often subject to adjournment this could not be permitted without hearing the other party and the order should be expressed to last no longer than the next hearing date.


Possible Costs Sanctions?

On the issue of making the fullest disclosure to the court when applying for a without notice order, the learned judge in Re C reminds practitioners of the views of Munby J. in Re S (Ex Parte Orders) [2001] 1 FLR 308 that this duty covers not only factual matters but also matters of law. It  follows, although not spelt out explicitly in this case, that advocates who fail to draw the court's attention to the hurdles they are required to surmount not only risk subsequent judicial criticism but also, potentially, orders for wasted costs.

The issue of wasted costs sanctions where without notice orders are inappropriately sought and obtained is discussed at some length by Charles J in B v A. This was a Hague Convention case where the father was seeking the return of the child to the USA and a series of ex parte location orders were sought and obtained in circumstances which amounted to a flagrant breach of most, if not all, of the principles discussed hitherto. When the father subsequently sought to withdraw the proceedings the mother sought an order for her costs. Having dismissed the application for an order against the father, Charles J turns to the issue of a wasted costs order and holds at para 110 that:

"It seems to me that if such failures are to be avoided in the future there is a need for judges:

i)  to refuse to make without notice orders if the established principles and procedures are not applied (I and some other judges do this), and

ii)  to treat such failures as negligent and thus as a foundation for the exercise of discretion to make a wasted costs order."

The applicant's solicitors were ordered to pay £18,000 in wasted costs. This may seem rather harsh, given that several Family Division judges had seen fit to grant the orders sought.


Summary

The current position regarding without notice applications in family cases can, it is suggested, be summarised in this way:

1. There is a gathering tide of judicial opinion, by no means confined to the Family Court, that without notice applications and orders have been made in a way which is lax and pays insufficient regard to well established principles and safeguards.

2. Before such an application is made there is an expectation that practitioners will seriously and objectively consider whether this is an appropriate case for a without notice application to be made. Practitioners must be able and willing to justify the basis on which the application is brought before the court. Weak applications made on instructions require the advocate to ensure that the court is aware of the weaknesses as well as the strengths of the application.

3. An application to the court with no notice at all to the other party should only be made where there is evidence before the court to show either that the case is so exceptionally urgent that notice to the other party is impossible or that giving notice of any kind would defeat the purpose of the order sought. "Cases where no notice at all can be justified are very rare indeed" per Mostyn J, UL v BK. In any other case at least short, informal notice should be given. The evidence justifying either approach must be explicitly set out in the supporting statements and other evidence filed in support of the application. Pleas of "Well, it's obvious isn't it?" are likely to receive short shrift.

4. The evidence given to the court must be detailed and precise. "Unparticularised generalities will not suffice" (per Munby J in  X Council v B).

5. There is a heavy duty on those presenting an application without notice to ensure that the court is directed to all the relevant facts, both favourable and otherwise, together with the relevant legal tests which have to be passed before the order can be made on such a basis.

6. Apart from setting out the respondent's right to apply to set aside or vary the order, the order must explicitly state what documents and evidence were considered and why it was considered appropriate to proceed without any notice to the respondent. If any (supplemental) oral evidence was given it must either be set out as a recital to the order (if very brief) or put into a statement and filed and served as quickly as possible.

7. A party who falls short of the high duty of candour required when an application is made without notice risks the court declining to renew the order when the case comes back on notice. This is however tempered in non-monetary cases to avoid injustice.

8. A failure to comply with the requirements of the court in such applications may amount to negligence for the purposes of making a wasted costs order.

17/7/14