without notice applications

The Civil Procedure Rules specifically provide for without notice applications for certain types of orders. Amongst them are applications for freezing orders and search orders; other include orders for charging orders and other enforcement proceedings. These orders are usually sought without notice to the intended defendant as notice will be more likely than not to destroy the purpose of making the order for relief. Interim injunctions include quia timet injunctions, freezing injunctions and search orders.

Without Notice Applications - Defendants

In UK legal proceedings, it is a fundamental right that the defendant is entitled to have the opportunity to be heard before by the court before an order is made against it. Applications without notice (formerly known as ex parte applications) are by definition made in the absence of the defendant. In these circumstances, the Court imposes a number of obligations upon an applicant.

Requirements

As well as the application notice, the evidence in support of the application (which would be by witness statement or affidavit), should:

1. address the reasons why the application for the interim injunction is made without notice;
2. provide a fair presentation of the application;
3. give full and frank disclosure of all relevant matters which are relevant to the Court’s assessment of the application;
4. give the cross-undertaking in damages. The Court will usually require the applicant to fortify the cross-undertaking in damages, particularly where it is a foreign claimant;

Solicitors and counsel in attendance at the hearing of the application are responsible for production of a detailed note of all the proceedings before the judge and must make it available to the defendant when orders are served on the defendant, as well as any other person who may be affected by the grant of the order.

Fair Presentation of the Application

The application must be made fairly, accurately, without misrepresentation or non-disclosure of any matter, whether it be of fact, law, practice, procedure or expectations. A large part of what is said to the judge or omitted depends on the completeness of the instructions received so that the legal representatives are in a position to make an assessment of whether or not the judge should be informed, with an ever-present eye for caution and doing anything that may prejudice the order at a later date.

Importantly, if relevant facts come to light after the order has been made, it is imperative that the court be to rectify any possibility that the court has been mislead.

Full and Frank Disclosure

Although there is an overlap between the obligation to present the application fairly and the duty to give full and frank disclosure to the court, the duty lies with the applicant disclose all matters which are material to the application that are, and should be considered by the court in deciding whether or not to grant the interim relief sought. Accordingly, the applicant must act in the utmost good faith.

The duty applies not only to facts but any matter that judge should know or consider prior to making an order.  Incorrect submissions or arguments will not amount to a non-disclosure or material misrepresentation provided that such errors do not deprive the court of any knowledge of any material circumstance, as the applicant will have acted fairly in the presentation of their case.  The burden in respect to freezing and search orders takes an elevated status due to the draconian nature of these orders.  It is of fundamental importance, and in the absence of the ‘fullest and frankest disclosure’ orders will be revoked: Bank Mellat v Nikpour.

It is no answer to a material misrepresentation that if all the relevant matters were put before the court that the court’s decision would be the same, and still would have made the order. Nor will it be an excuse for the applicant to say subsequently that he was genuinely unaware or did not believe that the facts were relevant or important. In addition, the court will not accept that an applicant has forgotten relevant matters in question. Having said that, the nature and circumstances of the material non-disclosure will be relevant for the court to consider how the material non-disclosure should be rectified.

Making the Application

What must be done therefore is to:

1. place the full story before the court; this includes requiring witnesses to place all relevant documents and materials before the court which they have to minimise the risk of misleading the court.
2. identify defences that may be available to the defendant;
3. make proper enquiries to ascertain materials facts that would be available if the enquiries were made.  The nature and extent of the enquiries depend upon a) the nature of the case (b) the order sought; (c) the probable affect of the order on the defendant; (d) the degree of legitimate urgency and the time available for making enquiries prior to the application;

When fresh evidence is brought to light that may touch upon a material non-disclosure or material misrepresentation, that evidence ought to be produced.

Consequences of Failure to Comply

The court will consider all relevant circumstances of the non-disclosure or material misrepresentation, where proportionate to do so, simply set aside the order. This would reflect the view that the applicant’s conduct was such that they should be deprived of any advantage obtained by the grant of ex parte relief.  Whether an order will be discharged will rely upon the importance of the fact to the issues of the case which were decided by the judge on the application. Where the non-disclosure was innocent, in that the fact was not known or its relevance was not perceived, will be an important factor but not decisive by reason of the duty on the applicant to make all proper enquiries and to give careful consideration to the case being presented.

The court retains a discretion in the event that a material non-disclosure has taken place to continue the order or make a new order on terms (such as the payment of the defendant’s costs).