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Evidence, practice and procedure: Without notice applications and wasted costs

Date:18 DEC 2012
Solicitor Advocate

David Burrows - Evidence, practice and procedure

David BurrowsIn B v A [2012] EWHC 3127 Charles J sets out his position uncompromisingly on without notice applications (at para [3]). The case was a successful claim for wasted costs against a father's solicitors who had 'negligently' (as defined in Ridehalgh v Horsefield (Wasted Costs Order) [1994] 2 FLR 194, CA) maintained a child abduction location order, abetted by a series of unnamed High Court judges.

The judgment suggests a turf war between Family Division judges: those who grant such applications on relatively flimsy evidence; and those, like Charles J, who recognise their duties and grant orders only where entirely justified and on a principled basis. The latter include Mostyn J, who early in his puisne judicial career expressed himself ‘shocked at the volume of spurious [urgent] ex parte applications that are made' (FZ v SZ (ancillary relief: conduct: valuations) [2011] 1 FLR 64; and Theis J (a member of the rules committee who could therefore do something about it) who summarised the applicable principles in KY v DD (Jurisdiction) [2012] 2 FLR 200 (at paras [14] and [15]) as established by Munby and Charles JJ.

These judges start with the fundamental importance of the duty of candour (R v Commissioners of Income Tax, Kensington ex parte Princess Edmond de Polignac [1917] 1 KB 486). The urgent without notice application is provided for by FPR 2010 rr 20.3(2)(b) and 20.4. The equivalent of this provision under CPR 1998 Part 25.3 is explained by Lord Hoffman in National Commercial Bank Jamaica v Olint [2009] UKPC 16 and in the Court of Appeal in Moat Housing v Harris [2005] EWCA Civ 287 (where the tendency of family judges to issue orders without notice was criticised by the appeal judges at para [64]). Notice where at all possible is essential: a judge should not ‘entertain an application of which no notice has been given' says Lord Hoffman, unless notice would defeat the object of the application; or ‘there has literally been no time to give notice'. ‘Audi alterem partem (hear the other side) is a salutary and important principle' (para [13]), he says.

On candour: the court must have the whole story, recited truthfully by the applicant, and pointing up weaknesses in the applicant's own case (exp Princess Edmond de Polignac (above)). This is for reasons of justice; but also from pragmatism, since when the respondent does come before the court, the applicant's weaknesses will be exposed.

A v B is another case where failure to follow court procedure as explained by the rules or established case law has led to wasted costs; or where court procedures are themselves unclear and a solicitor has been criticised unfairly for not following them (Fisher Meredith LLP v JH & PH (Rev 2) [2012] EWHC 408 (Fam), Mostyn J: addition of parties in family proceedings, then an unknown procedural issue)).

David Burrows is author of Practice of Family Law: Evidence and Procedure (Jordans, 2012). Interim Remedies is dealt with in Chapters 16 (especially at 16.19-16.37).

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.