This judgment can be reported provided that the parties to the proceedings are not identified. Failure to comply with this order will be a contempt of court.
B e f o r e :
| Mr R
Hearing date: 18 November 2014
Judgment date: 11 December 2014
Crown Copyright ©
Mr Justice Peter Jackson:
(1) The default position of a judge faced with a without notice application should always be "Why?", not "Why not?" As has been repeatedly stated, without notice orders can only be made in exceptional circumstances and with proper consideration for the rights of the absent party.
(2) The court should use its sweeping powers under the Family Law Act 1996 with caution, particularly at a one-sided hearing. Where an order is made, it is the responsibility of the court (and, where applicable, the lawyers) to ensure that it is accurately drafted. This consideration applies with special force when a breach of the order will amount to a criminal offence.
(3) Extra injunctive provisions such as exclusion areas and orders prohibiting any direct communication between parties should not be routinely included in non-molestation orders. They are serious infringements of a person's freedom of action and require specific evidence to justify them.
(4) The power to penalise non-compliance with case management orders should be used firmly but fairly, in a way that supports the overriding objective rather than defeating it. The court should apply the rules (here specifically FPR r.4.6) with that aim.
(5) The court should be on guard against the potential for unfairness arising from the Legal Aid, Sentencing and Punishment of Offenders Act 2012, whereby the applicant is entitled to legal representation as a result of unproven allegations, while the respondent is not. In this case, the fact that one party had no legal advice at any stage was critical to the outcome.
The without notice application
- Using or threatening violence to Mrs R
- Damaging property
- Communicating with Mrs R by letter, text message or any other means, except through her solicitors
- Harassing, pestering or molesting Mrs R
- Entering X Street (highlighted on a map)
- During the course of the marriage, Mr R had pushed and shoved Mr R and thrown objects. On one occasion 17 years ago he had grabbed her arm and pushed her to the floor during an argument.
- He had sworn at her.
- He had at times expected her to engage in distasteful sexual practices, particularly early in the marriage.
- He would control the finances until she insisted upon his making changes.
- There had been a significant impact on Mrs R's health and self-esteem.
- The children were being affected by the disharmony and one was now self harming.
The hearing on 20 June 2014
Service of the order
Mrs R goes to the police
- She said that the marriage broke down because of Mr R's controlling ways.
- He had moved out following the order and had not been around since.
- He had been texting his 18-year-old son, and although this was not forbidden, she did not want it to happen.
- He had made a phone call to her on 24 June. It was not threatening: he just wanted to know if the court case was still going ahead and would she allow him to come home.
- She was upset to be told that he would be spoken to or arrested and begged that this should not happen.
- She said that she was not in danger from her husband.
- She refused to give a statement and said that she had not wanted to come to the police but her solicitor told her that she had to.
- She and the children were safe and well.
The return date hearing
- Mr R was to serve a detailed narrative statement in response to Mrs R's evidence no later than 30 June (he himself suggested this date).
- Mrs R could file a statement in response by 14 July.
- Mrs R was to file a medical report by 14 July.
- The police were to give disclosure by 31 July.
- The matter was to be listed for a contested hearing for one day on 23 September.
Mr R is arrested
Mr R writes to the court seeking extra time
The court cancels the hearing in September
"Upon considering the Respondent's letter dated 30th June 2014
The Court orders
1 Respondent has failed to comply with the order of 26th June 2014. Pursuant to FPR 22.10 he cannot now give evidence on 23rd September 2014.
2 If he still opposes the continuation of the order he must make a formal application and he must do so promptly.
3 The court cannot retain a day of court time when the Respondent cannot give evidence. The hearing on 23rd September is therefore cancelled. If the Respondent successfully applies to adduce evidence a new date will be fixed."
"Thank you for your letter dated 30 June 2014. Your letter was referred to [the District Judge] for consideration. However, the Court does not conduct case management by correspondence letter and therefore cannot act as a legal adviser. If you require further assistance you are directed to consult a legal representative."
Mr R files his statement and applies to vary the orders
"I strongly protest in the manner that I have [been] removed from my property and access to my children by the completely inappropriate use of the legal system reserved for urgent and life threatening circumstances and misused by [Mrs R] to have access to legal aid and cause the maximum distress."
"Unfortunately, I failed to comply with the order of 26 June 14 due to I had to attend [name] Magistrates Court ... I wholeheartedly apologise for my failure in not applying within the stated time but due to no legal aid or legal advise I am not familiar with court etiquettes and procedures. I would be gratefull if another date could be given to me the Respondent so I can give evidence to contest this fabricated lies against me."
"In the circumstances we are concerned at the impact on the public purse in terms of an appropriate use of the Court's valuable time and our client's public funding certificate in allowing the Respondent to adduce oral evidence to oppose the making of an Order that he has already breached on at least one occasion."
"I am somewhat surprised by this opposition to oral evidence, when I have been evicted from my house for over six weeks and denied access to my children ... over a completely fabricated statement which has been hurriedly applied and without any notice or opportunity provided to me to refute the allegations. ... I have tried to refute all the false allegations against me in my statement dated 13 July 2014 and this has been my only opportunity thus far to express my version regarding this severe injunction against my welfare, livelihood, family life and human rights. I strongly protest ..."
Mr R's application for "relief from sanction" is finally listed
The hearing on 12 September
"The rules are strict. It is very harsh but it would have applied equally to [Mrs R]. She was ordered to do some evidence and, had she failed to do that, that order could have been discharged. It is difficult when people do not have legal representation and I fully understand that. However, I reject entirely [Mr R]'s assertion that he left my courtroom not understanding exactly what he had to do and when he had to do it. It is unfortunate if he did breach the order, which I must accept he did if he admitted it in the Magistrates' Court – he is not going to come back to the County Court and deny it – and he spent some time in custody and had the inconvenience and difficulty of a court appearance. However, the fact is I have a clear recollection of that hearing and I know for a fact that I emphasised to [Mr R] and his brother the importance of the compliance with my order and the implications of failing to comply with it. That is always my practice. When people appear before me without legal representation, I fully understand that and I take so much time and care. However, I actually remember [Mr R]'s hearing with absolute clarity. That is not a good reason."
"It has been 4 weeks since my request and this appears to be ignored. I am currently disillusioned with the Justice system in this country, which removes me from my home and family with a completely fabricated statement and process and the only way I can retrieve my belongings and have communications with my children is to request it through the Applicant's Solicitors and this is ignored!"
I would like the court to provide an explanation ..."
Mr R appeals
1. A without notice application should not have been made.
2. A without notice order should not have been granted on this evidence.
3. The order that was granted did not reflect the judge's intention.
4. The orders preventing access to the street and banning direct communication were unnecessary and disproportionate.
5. At the first hearing attended by both parties, the court did not review the without notice order to ensure that there were no obvious errors of the kind that existed here.
6. The date given for a contested hearing of Mrs R's application was too distant to be meaningful.
7. Mr R's request for extra time to file his statement should have been granted at the outset.
8. The hearing date for Mrs R's application should not have been cancelled.
9. The application for relief from sanction should have been considered on paper and granted.
10. The date given for a contested hearing of Mr R's application for relief from sanction was again too distant to be meaningful.
11. The District Judge did not correctly apply the rules governing relief from sanction. Had she done so, she would have concluded that there was no good reason for refusing to admit Mr R's statement.
Relief from sanctions
Relief from sanctions
(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order the court will consider all the circumstances including –(a) the interests of the administration of justice;(b) whether the application for relief has been made promptly;(c) whether the failure to comply was intentional;(d) whether there is a good explanation for the failure;(e) the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant pre-action protocol;(f) whether the failure to comply was caused by the party or the party's legal representative;(g) whether the hearing date or the likely hearing date can still be met if relief is granted;(h) the effect which the failure to comply had on each party; and(i) the effect which the granting of relief would have on each party or a child whose interest the court considers relevant.
(2) An application for relief must be supported by evidence.
In the present case, the sanction against giving oral evidence arose from Rule 22.10, which provides that if a witness statement is not served on time, the witness may not give oral evidence unless the court gives permission.