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C v C [2005] EWHC 2741 (Fam)

Non-parties given notice of injunction were entitled to disclosure of evidence in support without the need for a court order.

Family Division: Munby J (29 November 2005)

Non-parties given notice of injunction were entitled to disclosure of evidence in support without the need for a court order.

The husband and wife were involved in divorce proceedings. The wife applied ex parte for a worldwide freezing injunction, as she believed that the husband was about to make a disposition, in circumstances caught by section 37 of the Matrimonial Causes Act 1973, of a valuable residential property in London. It was known that the property was subject to a charge or mortgage in favour of Citibank, and so the freezing injunction contained a provision giving the wife 'permission to notify the following persons of the terms of this order by serving a copy of this order upon them'; among those listed were Citibank and the purchaser's solicitors.

Notice of the injunction was given by the wife's solicitors to Citibank, and Citibank's solicitors responded, seeking disclosure 'by return' of the evidence filed in support of the application. The wife's solicitors replied that Citibank were not a party to the proceedings and they had no instructions to speak to them; they also said that they were in the process of family proceedings which were confidential to the parties, and it would be entirely inappropriate for them to send copies of their client's affidavit and supporting documentation without leave of the court.

On Citibank's application for an order requiring the wife's solicitors to hand over the requested documents, the question arose as to whether any such order was necessary, or whether the wife's solicitors had in fact been obliged to comply with Citibank's request at once. The court reviewed the applicable case-law, and described the present issue as an extension of the elementary principle of natural justice, underpinned by Article 6 of the European Convention on Human Rights, that cases had to be decided solely on the basis of evidence which was known to both parties, and it was not right to give a judge information in an ex parte application which could not at a later stage be revealed to a party affected by the result of the application.

The court found that a person served with, or given notice of, an injunction was to be treated as someone who was 'affected' – or potentially 'bound' – by the order; accordingly, the wife's solicitors should have supplied copies of the documents requested, without requiring Citibank first to obtain an order of the court.

The court was concerned here with a broad principle of fairness and natural justice, not with some technical rule of black letter law, and it was right that the broad principle applied for the benefit of all those 'affected' or 'bound' by the order, ie including all those, whether or not they were parties to the proceedings, and whether or not they had themselves been injuncted, who had been served with or given notice of the injunction.

The court added three further points:

(1) the general principle, that information should be volunteered without waiting to be asked, was applicable to those parties against whom the injunction has been obtained, but should not be extended to those who were merely served with or given notice of an injunction; in their case, the obligation was confined to supplying information when asked;
(2) there were certain limited exceptions to the principle that the court could not receive communications from one party which were to be kept secret from the other; however, none of these was ever likely to be relevant in the context of a freezing injunction; and
(3) the potential embarrassment to the husband and wife, if evidence in the divorce proceedings had to be disclosed to third parties, was no justification for not making full disclosure of the material on the basis of which an injunction had been granted; however, it may be appropriate for the relevant material to be set out in a separate affidavit which could be publicly disclosed.

Read the full text of the judgment

Digest prepared by Peter Smith, Barrister