In the recent case of Lachaux v Independent Print (see Weekly Update 24/15), Nicol J queried whether there had been the necessary "extreme urgency" to justify a without notice application and said that in any event, it was not clear why informal notification had not been given to the defendants' solicitors. In this case, heard by another Queen's Bench judge, reference was made to the practice of issuing applications ex parte and before issue of a claim form "as if this were the normal way of proceeding". Edis J continued: "It is not. The default position is that interim remedies are granted within existing proceedings. The default position is that they are granted after notice has been given to the person against whom they are sought and after service of the claim form on that person. Those default positions can (and very often are) be varied where good cause is shown, but each variation needs to be justified and considered separately. Where, as here, the claimant comes without having issued proceedings, without serving proceedings, and without giving notice to the other party or parties there is a series of issues to be addressed before any order at all can be made:-
- Why has no claim form been issued? Is it appropriate to consider granting an order on an undertaking to issue and serve proceedings forthwith? Is there sufficient urgency to justify this course, and what is the likelihood that a claim form will come into existence in such a form that it can lawfully be issued within that time frame?
- If the application is entertained before issue, why is it being pursued without notice? There must be a substantial justification for that before the application will be heard, still less granted".
Accordingly, practitioners should bear these considerations in mind when making an ex parteapplication before issue of a claim form.