Catching up with the new case law this week, I was interested to find that one contained a paragraph titled “A Warning”*. There is usually a need to tease out threads from a judgement, raising different opinions on how those views will be applied to future cases, but there can be no doubt that in this case the judge wanted family solicitors to consider his words very carefully.
The case deals with applications which are made to the court without telling the other person (ex parte or without notice applications). These are potentially very draconian applications, with orders being made about you or your possessions without your knowledge. The courts are very aware of this, and have reminded the lawyers in this case that “It is worth remembering not only that the ex parte procedure is intrinsically unfair but also, and very importantly, that a case which begins with an ex parte order is usually poisoned from that point onwards. The unilateral step taken at the beginning of case echoes down its history. Often the respondent is enraged by the step taken against him and looks to take counter-offensive measures. Every single subsequent step is coloured by that fateful first step. Costs tend to mount exponentially. And even after the lawyers close their files and render their final bills the personal relations of the spouses will likely remain forever soured. A nuclear winter often ensues”
Dramatic language, but all true. The price of choosing to issue such an application can be significant. To choose to issue an ex-parte application may result not only in a personal nuclear winter, but also a significant financial cost. In December, a law firm had to pay thousands after the judge found it had not followed the rules for issuing an ex-parte application (see my previous post Facebook and Family Law re case B v A). After UL v BK, it seems likely that these types of orders for costs are going to be much more common place in ex parte applications.
Of course, in some cases, the ex-parte application is the correct and appropriate step to take. In a financial case, these types of application can be used to freeze the assets. Helpfully, the judge has set out at the end of his judgement a draft document for lawyers to use going forward, to try to prevent any procedural deficiencies when freezing assets without telling the other spouse. If you want to freeze the assets without telling your spouse about it, it must be for reasons of “exceptional urgency” rather than as a “pre-emptive strike”. To issue an ex-parte freezing application for the wrong reasons could result in you or your lawyers having to foot the legal bill for your spouse.
*UL v BK (Freezing Orders: Safeguards: Standard Examples@ [2013] EWHC 1735 (Fam)
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