England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		29th November 2005

MR JUSTICE MUNBY

This judgment was handed down in private but the judge hereby gives leave for it to be reported.

Mr Justice Munby :

1. This case raises a short but important point of practice in relation to the grant of ex parte (without notice) orders.

The facts

2. Last Tuesday (22 November 2005), whilst I was sitting as the urgent applications judge in the Family Division, counsel instructed by well-known matrimonial solicitors of unimpeachable integrity applied to me ex parte for a worldwide freezing injunction. The application was made by a wife in a pending divorce suit. She claimed that the husband was about to make a disposition, in circumstances caught by section 37 of the Matrimonial Causes Act 1973, of a valuable residential property in London. The wife understood that the husband was on the point of completing a sale in relation to which contracts had already been exchanged. The registered proprietor of the property was a Lichtenstein anstalt which, according to the wife, was merely the husband's alter ego. In these circumstances the wife's advisers took the view that there was no need to join the anstalt as a party: see the discussion in Re W (Ex Parte Orders) [2000] 2 FLR 927 at page 938 of, in particular, Purba v Purba [2000] 1 FLR 444 and Khreino v Khreino (No 2) (court's power to grant injunctions) [2000] 1 FCR 80. They took the view that it would be sufficient if the injunction, although directed only against the husband, was served on the anstalt and on the purchasers.
3. It was known that the property was subject to a charge or mortgage in favour of Citibank NA. Accordingly, the freezing injunction I granted contained a provision giving the wife "permission to notify the following persons of the terms of this Order by serving a copy of this Order upon them." Among those then listed were the anstalt, Citibank and the purchaser's solicitors.
4. Notice of the injunction was given by the wife's solicitors to Citibank in a letter sent the next day (23 November 2005). Citibank's solicitors responded in a letter sent the same day in which they sought disclosure "by return" of the evidence filed in support of the application, counsel's note to the Judge and her full notes of the hearing. They continued:

"If necessary, we shall apply to the Judge without notice in order to obtain these documents, to which our client is plainly entitled."

Citibank's solicitors sent a 'chasing' letter the following morning (24 November 2005). The wife's solicitors replied in a letter sent the same morning in which they said:

"You are not a party to [the] proceedings and we had no instructions to speak to you last night … We are in the process of family proceedings which are confidential to the parties. It would be entirely inappropriate for us to send you copies of our client's affidavit and supporting documentation without leave of the Court. However the authority referred to in Counsel's note was W v H (Family Division: without notice orders) [2000] 3 FCR 481."

The authority to which they referred is in fact reported as W v H (ex parte injunctions) [2000] 3 FCR 481 and as Re W (Ex Parte Orders) [2000] 2 FLR 927. I shall refer hereafter to the latter report.

5. I note the solicitors' assertions about the confidentiality of the proceedings. I do not pause to consider to what extent that view was justified, a complicated topic considered in Clibbery v Allan [2001] 2 FLR 819 (on appeal Clibbery v Allan [2002] EWCA Civ 45, [2002] 1 FLR 565). I accept, however, and without reservation, that the solicitors reasonably believed themselves to be precluded from giving Citibank the information requested.
6. Later that morning (24 November 2005) counsel appeared before me on behalf of Citibank seeking an ex parte order requiring the wife's solicitors to hand over the documents that had been requested. I declined to deal with that application in the absence of the wife's representatives and the matter came back in front of me later in the day inter partes. The wife's solicitors indicated through counsel that they had no objection whatever to providing the information but felt constrained in the absence of a court order. I made the appropriate order but reserved for further consideration the question of whether any such order was necessary or whether, as I was inclined to think, it had in fact been the obligation of the wife's solicitors to comply with the request from Citibank without waiting for an application to the court.
7. I now (29 November 2005) hand down judgment.

The law

8. The starting point is what I said in Re W (Ex Parte Orders) [2000] 2 FLR 927 at page 946:

"the applicant's legal representatives should respond forthwith to any reasonable request from the party injuncted or his legal representatives either for copies of the materials read by the judge or for information about what took place at the hearing. Persons injuncted ex parte are entitled to be given, if they ask, proper information as to what happened at the hearing. At the very least they are entitled to be told, if they ask, (a) exactly what documents, bundles or other evidential materials were lodged with the court either before or during the course of the hearing and (b) what legal authorities were cited to the judge."

9. That was a case not dissimilar to the case with which I am at present concerned. But the principle of course is not confined to freezing orders or 'money' cases. It extends to all cases in the Family Division or other family courts – indeed to all cases in all courts – where an ex parte (without notice) order is made. Thus it applies, for example, to a case where an ex parte injunction is granted to restrain the publication of information about a child: Kelly v BBC [2001] 1 FLR 197; or where a passport order is made: Re S (Ex Parte Orders) [2001] 1 FLR 308; or where a family proceedings court grants an ex parte emergency protection order: X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam), [2005] 1 FLR 341.
10. The question is whether this principle applies only where the request emanates from another party to the proceedings or whether it extends to requests for information from any person, whether or not a party to the proceedings, who has been served with or given notice of the injunction. In my judgment the latter is the correct view. The principle set out in the passage in Re W (Ex Parte Orders) [2000] 2 FLR 927 to which I have just referred applies whether the request comes from the party who is injuncted or from someone, whether or not a party to the proceedings, and whether or not he has himself been injuncted, who has been served with or given notice of the injunction.
11. The principle which is in play here derives from – is, if you like, an application or extension of – what I described in Re S (Ex Parte Orders) [2001] 1 FLR 308 at page 316 as:

"the elementary principle of natural justice, now of course underpinned by Art 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, that cases have to be decided solely on the basis of evidence which is known to both parties and that it is therefore not right to give a judge information in an ex parte application which cannot at a later stage be revealed to a party affected by the result of the application."

12. I went on at page 317 to note that this is what Hobhouse J (as he then was) had referred to in Pamplin v Express Newspapers Ltd [1985] 1 WLR 689 at page 691 as:

"the principle of natural justice which applies wherever legal proceedings involve more than one person, and one party is asking the tribunal for an order which will affect and bind another. Natural justice requires that each party should have an equivalent right to be heard. This means that if one party wishes to place evidence or persuasive material before the tribunal, the other party or parties must have an opportunity to see that material and, if they wish, to submit counter material and, in any event, to address the tribunal about the material. One party may not make secret communications to the court."

13. It will be observed that Hobhouse J formulated the principle of natural justice as applying where a "party is asking the tribunal for an order which will affect and bind another." I summarised the principle (at page 317) as being that:

"natural justice requires amongst other things that a party adversely affected by an order must have an opportunity to see the material upon which his opponent relies and to address the court about it."

14. These passages indicate, as it seems to me, the proper ambit of the rule under consideration. We are here concerned with a broad principle of fairness and natural justice, not with some technical rule of black letter law. So this broad principle applies for the benefit of all those who are "affected" or "bound" by the order. And that, of course, includes all those, whether or not they are parties to the proceedings, and whether or not they have themselves been injuncted, who have been served with or given notice of the injunction.
15. After all, the very reason why a third party – someone who is not himself a party to the proceedings and is not himself injuncted – is served with or given notice of an injunction is precisely so that if he participates in or facilitates a breach of the injunction, or assists the party injuncted to breach the injunction, he may, even if not himself in breach of the order, none the less be held in contempt of court on the basis of that species of liability considered in cases such as Seaward v Paterson [1897] 1 Ch 545, Z Ltd v A-Z and AA-LL [1982] QB 558, Attorney-General v Newspaper Publishing plc and Others [1988] Ch 333 and Attorney-General v Times Newspapers Ltd and Another [1992] 1 AC 191: see Re W (Ex Parte Orders) [2000] 2 FLR 927 at page 941.
16. In my judgment, a person served with or given notice of an injunction is to be treated for the purpose of the principle I am considering as someone who is "affected" – indeed, potentially "bound" – by the order.

Conclusion

17. It follows that Citibank's solicitors were entitled to delivery on demand of copies of the various documents referred to in their letter of 23 November 2005. The confidentiality of the proceedings (even if they were confidential) was not of itself any answer to Citibank's request. The wife's solicitors could, and should, have supplied copies of the documents requested, and without requiring Citibank first to obtain an order of the court.
18. That said, I accept that the law as I have now set it out may not previously have been altogether clear. And, as I have already made clear, I accept without reservation that the wife's solicitors reasonably believed themselves to be precluded from giving Citibank the information requested. Accordingly, no criticism of the wife's solicitors is to be read into anything I have said. But the position is now, I hope, clear. For the future, the wife's solicitors and others who may hereafter find themselves in a similar predicament will know how they ought to proceed.

Some other points

19. Before parting with the matter there are three points I should add.
20. The first arises out of my observation in Re S (Ex Parte Orders) [2001] 1 FLR 308 at page 317 that:

"those who obtain ex parte injunctive relief are under an obligation to bring to the attention of the respondent, and at the earliest practicable opportunity, the evidential and other persuasive materials on the basis of which the ex parte injunction was granted."

In other words, information should be volunteered without waiting to be asked. That principle no doubt applies in the case of those parties against whom the injunction has been obtained. But I see no reason why it should be extended to those, not parties and not themselves injuncted, who are merely served with or given notice of an injunction. In their case the obligation, it seems to me, is confined to supplying information when asked. After all, banks served with freezing orders might not welcome becoming the automatic recipients of all the often voluminous evidence put before the court.

21. The second point relates to certain limited exceptions to the principle that the court cannot receive communications from one party which are to be kept secret from the other. As I said in Re S (Ex Parte Orders) [2001] 1 FLR 308 at page 317:

"Even outside the Family Division that principle is subject to certain narrow exceptions: see Re Murjani (A Bankrupt) [1996] 1 WLR 1498. Moreover, as I pointed out in Kelly v BBC [2001] 1 FLR 197, it is also qualified in the context of cases in the Family Division concerning children by the principle considered by the House of Lords in Official Solicitor to the Supreme Court v K and Another [1965] AC 201 and In re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593."

(See also now Re B (Disclosure to Other Parties) [2001] 2 FLR 1017 and the case discussed at [2004] Fam Law 594.) None of these exceptions or qualifications is relevant for present purposes – indeed, they are unlikely ever to be relevant in the context of a freezing injunction – so I need say no more about them.

22. The third point relates to the potential embarrassment to the parties – the husband and wife – which can arise in a case such as this if evidence in the divorce proceedings has to be disclosed to third parties. I had to consider a similar issue in Kelly v BBC [2001] 1 FLR 197 at page 239, when pressed with the problems which might arise if the evidence in a wardship case had to be shown to the media. I said there was no "justification for not making full disclosure to the media of the material on the basis of which an injunction contra mundum has been granted." I continued:

"This may give rise to a practical problem, for very often the material relied on in support of the application for such an injunction will be contained in affidavits or witness statements filed in the substantive children proceedings which contain a mass of other information which is of no relevance to the application for the injunction, which there is no need for the media or any other third party to see and which it is highly undesirable that they should be allowed to see.

That is, however, no reason for denying the media their right – and in my judgment it is their unqualified right – to see the material which has been relied upon against them. If, as will typically be the case, it is not appropriate for the media to see the material in the form in which it was originally filed with the court, the solution is not to deny them what they are plainly entitled to as a matter of natural justice – and what, I might add, they will plainly be entitled to in accordance with Art 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 once the Human Rights Act 1998 comes into force – but rather to set out the relevant material in a separate affidavit or affidavits which can be shown to the media."

23. A similar solution should be adopted where appropriate in analogous situations, including, if appropriate, where the application is, as here, for a freezing injunction.