Practical Guidance on the Duration of Ex Parte Orders from the President of the Family Division
The President of the Family Division, Sir James Munby, recently provided guidance in respect of ex parte (without notice) orders. Without notice applications have always been a thorny issue, as they involve a careful balancing act between the right to a fair trial and protecting an individual against injustice or irreparable harm. This guidance helps applicants and judges to tread this fine line.
This guidance was prompted by a question posed by The Magistrates' Association and the National Bench Chairs' Forum of whether it is proper to grant a without notice non-molestation injunction (a form of personal protection order) for an unlimited period.
Without Notice Injunctive Orders
The President of the Family Division confirmed that the practice of granting without notice injunctions for an unlimited period of time "is wrong in principle" and "must stop". He also used the opportunity, in answering this question, to provide guidance on without notice injunction applications generally.
An injunctive order is a court order that seeks to prohibit someone from doing something. It is usually these orders that are applied for on a without notice basis, due to the risk of an injustice being carried out. For example, a non-molestation order could be used to prevent someone using or threatening violence, intimidating, harassing or pestering, in order to ensure the other person's health, safety and well-being. Another example is a freezing injunction to stop assets being transferred out of reach.
Given the nature of these orders, it is often the case that the matter is urgent and the applicant does not want to 'tip off' the other person. It is therefore possible to make an order without notice, but the President has clarified that these will normally only be appropriate where either:
- There is an emergency, or other great urgency, so that it is impossible to give any notice, however short or informal; or
- There is a real risk that, if alerted to what is proposed, the respondent will take steps in advance of the hearing to thwart the court's order or otherwise to defeat the ends of justice.
The President's guidance helpfully confirms the principles with which all without notice injunctive orders must comply, including:
- A without notice injunctive order must never be made without a limit of time. There must be a fixed date specifying precisely, by reference to time and date, when it will expire.
- The order must fix, by reference to date, the time and place of the hearing, a return date (ie a date when you will return to court for a full hearing for which the respondent will be provided notice).
- The return date should normally be no more than 14 days after the date when the order was made.
- The duration of the order should be carefully considered. Most will typically be short, no more than 14 days, but in appropriate cases (for example where there is an allegation of long term abuse) the order can be for a longer period (such as six or 12 months) as long as it specifies a return day within no more than 14 days.
- The order must make it clear that it was made in the respondent's absence, the court has considered only the evidence of the applicant and the court has made no finding of fact. Written evidence must be identified in the order. Any oral or other evidence should be recorded on the face of the order or reduced to writing and served with the order.
- The order must state the right to make an application to set aside or vary the order. The phrase 'liberty to apply' is not sufficient - it must spell out that the respondent is entitled, without waiting for the return date, to apply to set aside or vary the order.
- If the respondent does apply to set aside or vary the order the court must list the application as a matter of urgency, within a matter of days at most.
Matthew Humphries, Partner at Stewarts Law commented:
"The President's guidance is a welcome reminder of the often overlooked obligations upon an applicant for a "without notice" order.
Such orders can impose draconian obligations and it is essential those obligations are measured and that the recipient of the order has a swift opportunity to have their arguments heard by the court.
It remains to be seen if the stretched resources of the court system can implement the timings proposed by the guidance."
This guidance takes a step towards fairness by reiterating the importance of both parties having the opportunity to be heard, and setting in place safeguards to minimise the risk of decisions being made in the absence of one party. This ties in both with an individual's right to a fair trial (guaranteed by article 6 of the Human Rights Act 1998) and the overriding objective in the Family Procedure Rules 2010 to deal with a case justly.
The guidance does not go so far as to say that without notice hearings should never happen as sometimes it is not appropriate for notice to be given, for example where it could lead to imminent or irreparable harm (albeit it suggests that at least some form of informal and short notice should almost always be given). However, in these urgent situations this guidance, if followed, should ensure the court has the opportunity properly to consider the rights of the absent party within a reasonable time frame, while also protecting the applicant from any immediate prejudice.
Without notice orders tread a fine line between granting relief to a vulnerable party, who may suffer prejudice or harm without such immediate relief, and observing the fundamental principle of fairness, which is inevitably encroached upon when a party is not provided with the opportunity to be heard. This guidance provides some welcome assistance with how to tread that fine line.