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Home > Judgments

Tobias v Tobias [2017] EWFC 46

Judgment of Mostyn J giving guidance on applications for freezing orders, ex parte orders and use of the out-of-hours judge

The wife lived in the former matrimonial home and H in a care home. H applied for an ex parte freezing order in respect of the FMH, a property that was heavily charged in favour of commercial creditors as well as the Local Authority in relation to unpaid council tax. It was also subject to a notice of home rights in H's favour.

Notably, H sought the order via the out-of-hours High Court judge despite there being no apparent emergency. H's statement in support of the application was defective, there was no proper application and no divorce petition had been received by the Court. After some weeks the application came before Mostyn J inter partes. Mostyn J used the application as an opportunity to set out a number of principles:

• The Family Court has full jurisdiction to deal with applications for freezing orders (whether made via s.37 MCA 1973 or s.37 SCA 1981) and "it is impossible to conceive of any circumstances where an application for a freezing order should be heard in the High Court, rather than the Family Court";

• It is unlikely that the High Court has any further powers under its inherent jurisdiction (citing his own judgment in L v K [2014] Fam 35);

• A district judge, circuit judge or High Court judge within the Family Court can hear such an application (see the Family Court (Composition and Distribution of Business) Rules 2014, Schedule 2) whereas only a High Court judge can hear an application for a search order. Inferentially from those rules applications for freezing orders should ordinarily be heard by a district judge or possibly a circuit judge (efficient allocation of business per r. 15(2). "In the future, applications for freezing orders must be made to the Family Court at district judge level, unless the criteria in the Efficient Statement…justify it being heard at High Court judge level";

• Applying analogously the Statement on the Efficient conduct of Financial Remedy Hearings, a High Court judge will only hear an application for a freezing order where the application either (a) seeks to freeze assets exceeding £15 million; (b) seeks to freeze assets in excess of £7.5 million and includes issues of complexity applying paras 3(3)-3(10) of the Efficiency Statement; or (c) seeks to freeze assets of less than £7.5 million and the application involves a novel and important point of law;

• Practitioners are reminded of the principles set out in L v K [2014] Fam 35 and President's Guidance of 18th January 2017 regarding ex parte orders;

• There were no grounds for the application being made to the out-of-hours judge and Mostyn states "I find it virtually impossible to conceive of any circumstances in any money case where it would be appropriate to approach the emergency out-of-hours judge for an injunction. I suppose that, if it could be said that there was strong evidence that a vast sum of money was just about to leave the jurisdiction and disappear to some king of safe haven or if there was strong evidence that a contract was about to be signed, that there might be justification for approaching the emergency out-of-hours judge but it would need a drama of that magnitude to justify it."

Summary by Richard Norman, barrister, St John's Chambers, Bristol.

__________________________

Neutral Citation Number: [2017] EWFC 46

IN THE FAMILY COURT
Case No:  FD17F00055
Courtroom No. 48

Queen's Building
The Royal Courts of Justice
Strand
London
WC2A 2LL

11.15am – 11.36am
Thursday, 29th June 2017


Before:

THE HONOURABLE MR JUSTICE MOSTYN


B E T W E E N:

ANTHONY TOBIAS
and
LINDSEY TOBIAS

Transcript from a recording by Ubiqus
61 Southwark Street, London SE1 0HL
Tel: 020 7269 0370
legal@ubiqus.com

MISS F HEADLEY (instructed by JCS Solicitors) appeared on behalf of the Respondent
The applicant was self-represented and attended by telephone

JUDGMENT (Approved)
MR JUSTICE MOSTYN: 
1. Anthony Tobias is a tetraplegic and he presently lives in a care home in Bournewood.  His wife, Lindsey Tobias, lives in the former matrimonial home, 115 Ingleside Drive in Stevenage.  This property may be worth £650,000, but it is heavily charged in respect of a number of debts in favour of commercial creditors as well as the local authority for unpaid council tax.  Moreover, it is subject to a notice of home rights under the Family Law Act, 1996, in favour of Anthony Tobias which was registered on 19 December 2016.  It is elementary that the property could not be sold without the consent of Anthony Tobias, while that notice was in place. 

2. However, on 31 May 2017, Mr Tobias made an ex parte application for a freezing order to the out-of-hours High Court judge, Keehan J.  He has told me, by telephone, that he did this because he was advised to do so at the Family Court at Luton.  He was not able to explain to me what the emergency was that required the use of the High Court out-of-hours service; which is there for extreme emergencies, for example, if children are about to be removed from the jurisdiction or if a medical procedure needs to be authorised.  Keehan J declined to make a freezing order; his order - which is headed to be in the High Court of Justice, although for reasons which I shall explain, it certainly was not in the High Court of Justice, it was rather in the Family Court -  provided that Mr Tobias' application for injunctive relief would be listed on 7 June 2017 before the urgent applications judge. 

3. The witness statement, in support of the application for injunctive relief, was a defective document in that it failed to specify that the property was already heavily charged in favour of various creditors.  It did, in paragraph four, state that Mr Tobias had the benefit of the home rights charge which I have mentioned.  It also stated that he had filed a petition at Bury St Edmunds which was waiting to be issued, as they were working in that court on a 28-day backlog.  That petition still has not been issued 1

4. On 5 June, Mr Tobias sent an email with attachments to the court, which included a draft injunction order, and that, on 6 June, was treated as an application for a freezing order.  The draft of the injunction order was, in fact, sealed by the court and has the appearance of an order actually issued by the court, but investigation demonstrates that this is not so, and that the sealed document is in fact the proposed order that Mr Tobias was seeking. 

5. That application, although it was not framed as an application in proper form, came, pursuant to Keehan J's direction, before Francis J on 7 June 2017, when he made an order, again headed in the High Court of Justice  - but which, as I shall explain, almost certainly was not in the High Court of Justice but was rather in the Family Court - which recorded that he had heard Mr Tobias via a telephone link and that the wife, Lindsey Tobias, was neither present nor had notice. 

6. Francis J did not make a freezing order on that day, but he adjourned the matter to be heard inter partes on 15 June 2017.  On that occasion the matter was heard by Hayden J; Mrs Tobias attended in person and again Mr Tobias attended by telephone.  On that occasion, the court recorded that Mrs Tobias gave an undertaking not to dispose of "any of the marital assets".  In her witness statement made in these proceedings, she argues that there has been some kind of misunderstanding because, on one view of things, that would prevent her even spending money on a sandwich.  She said that what she had intended to give an undertaking to do, was not to dispose of the marital home. 

7. Hayden J, having recorded this undertaking, directed that the matter be determined finally before me.  I have heard Mr Tobias by telephone, and I have heard Mrs Tobias through counsel, Miss Headley.  There are a number of matters of principle that I need to state at the outset. 

8. First, in a money case, it is impossible to conceive of any circumstances where an application for a freezing order should be heard in the High Court, rather than the Family Court.  The power to grant a freezing order is derived from one of two sources; namely Section 37 of the Matrimonial Causes Act, 1973; or Section 37 of the Senior Courts Act, 1981.  Proceedings under Section 37 of the Matrimonial Causes Act are within the exclusive jurisdiction, at least initially, of the Family Court; and in relation to proceedings under Section 37 of the Senior Courts Act, subsection 6 provides that this section applies in relation to the Family Court as it applies in relation to the High Court.  Thus, in relation to those two sources of power, the Family Court has full jurisdiction.  It is unlikely that there exists any further residual power pursuant to the inherent jurisdiction of the High Court or otherwise; in this regard I refer to my own decision of L v K [2014] Fam 35 at paragraph 14. 

9. Therefore, an application for a freezing order, in my judgment, should only be determined in the Family Court.  At which level of the Family Court should a freezing order application be adjudged?  By virtue of the Family Court (Composition and Distribution of Business) Rules 2014 (SI 2014 No. 840)  a freezing order may be made at any level of the Family Court above the lay justices.  Schedule 2 of those rules specifies that a freezing injunction may not be granted by a lay justice in the Family Court; it can therefore be granted by a district judge, a circuit judge or a High Court judge: see Table 1 para 2.  However, by virtue of Schedule 2, Table 3, para 2 a search order can only be made by a judge of High Court level; therefore, inferentially an application for a freezing injunction should ordinarily be heard by a judge of district judge level or perhaps, by virtue of an efficient allocation of business under rule 15(2), by a judge of circuit judge level. 

10. Now, in my judgment, in circumstances where there is power for a High Court judge sitting in the Family Court to hear a freezing injunction, it would be helpful for me to give guidelines as to the sort of case which should be heard at that level.  In my judgment, the criteria set out in the Statement on the Efficient Conduct of Financial Remedy Hearings, dated 1 February 2016, should be applied analogously to applications for freezing injunctions.  Therefore, if the application for a freezing injunction seeks to freeze assets in excess of    £15 million, then it would be appropriate to approach a High Court judge.  If the application is to freeze assets in excess of £7.5 million, and it is accompanied by the factors of complexity mentioned in the statement at paragraph 3(3) – 3(10), then it would be appropriate to approach a High Court judge.  However, if the assets which are sought to be frozen do not, on any view, exceed £7.5 million, then it would only be appropriate to approach a High Court judge if the application involves a novel and important point of law. 

11. In my judgement in L v K [2014], I set out the principles that needed to be applied if an application were to be entertained ex parte; in that regard I draw attention further to the President's Guidance given on 18 January 2017 concerning ex parte orders generally.  In paragraph 7 of that guidance, the President stated 'I remind all practitioners and judges of the principle which applies to all ex parte injunctive orders made by the Family Court or by the Family Division, irrespective of the subject matter of the proceedings or the terms of the order, that a without notice application will normally be appropriate only if: (a) there is an emergency or other great urgency so that it is impossible to give any notice, however short or informal, or (b) there is a real risk that, if alerted to what is proposed, if tipped off, the respondent will take steps in advance of the hearing to thwart the court's order or otherwise to defeat the ends of justice'.  That says perhaps more laconically what I said at great length in my decision of L v K.   

12. It is particularly relevant where an application is sought to be made to the emergency out-of-hours judge.  In such circumstances the judge will be hearing the matter by telephone; and probably will only have one or two pages of material.  For my part, I find it virtually impossible to conceive of any circumstances in any money case where it would be appropriate to approach the emergency out-of-hours judge for an injunction.  I suppose that, if it could be said that there was strong evidence that a vast sum of money was just about to leave the jurisdiction and disappear to some kind of safe haven; or if there was strong evidence that a contract was about to be signed, that there might be justification for approaching the emergency out-of-hours judge but it would need a drama of that magnitude to justify it. 

13. I am perfectly satisfied in this case that there was no such urgency because, in effect, Mr Tobias had already frozen this property by the imposition of his home rights charge on 19 December 2016.  Moreover, I am not satisfied that he satisfied the requirement of full candour when he made his application.  I reiterate that the application was defective procedurally and substantively; it was procedurally defective in that it went to the wrong court, at the wrong time, for the wrong reasons.  In the future, applications for freezing orders must be made to the Family Court at district judge level, unless the criteria in the Efficiency Statement to which I have referred, justify it being heard at High Court judge level.  Of course, there was nothing in this case - where the assets on any view are probably no more than half a million pounds - justifying relief from a High Court judge sitting in the Family Court. 

14. For all these reasons the application for a freezing injunction is dismissed. 

15. I direct that a copy of the oral judgment I have just given be obtained at public expense and that it be placed on BAILII. 

End of Judgment

1 Since this judgment was promulgated I have received an email from HHJ Roberts, Designated Family Judge for Essex and Suffolk, which states "I particularly picked up on paragraph 3 [of your judgment] in which you record that the applicant had said that he had filed a petition at BSE which was waiting to be issued as they were working on a 28-day backlog and that the petition had still not been issued. I asked for checks to be made at BSE and am informed by the manager at BSE that no petition has been received from or on behalf of Mr Tobias. I understand that the case is over but I am keen for the family law world to appreciate that BSE divorce hub is working very well.   In early June this year, for example, there was no more than a 5 day turnaround for divorce petitions to be received and issued."