Practitioners have, again, been reminded in strong terms of the need for strict compliance with the Civil Procedure Rules when applications are made for “without notice” injunctions. It has again been pointed out that notice is a matter of “elementary” justice and that, if it is not given, CPR 25.3(3) and PD 25A para 4.3 require the service of evidence stating the reasons why notice has not been given.The abuse of the without notice injunction procedure has been the subject of adverse judicial comment in a number of cases over recent years. In Doncaster MBC v BBC ([2010] EWHC 53 (QB)) Mr Justice Tugendhat drew attention to serial breaches of the requirements of the rules and of section 12(2) of the Human Rights Act 1998 (which requires notice to be given in cases where orders may affect freedom of expression) on an injunction application.
The same judge has recently returned to the point in O’Farrell v O’Farrell ([2012] EWHC 123 (QB)). Although this case was concerned with an application for a freezing order in the context of a family dispute, the points made are of general application.
Mr Justice Tugendhat again drew attention to CPR Part 25.3 and PD 25A para 4.3. He said that he was “shocked at the volume of spurious ex-parte applications that are made in the Queens Bench Division“, continuing:
“The number of occasions on which CPR Part 25.2 and CPR 15.3(1) and (3) and PD25A para 4(3) are flouted is a matter of real concern. In these days of mobile phones and emails it is almost always possible to give at least informal notice of an application. And it is equally almost always possible for the Judge hearing such an application to communicate with the intended defendant or respondent, either in a three way telephone call, or by a series of calls, or exchanges of e-mail. Judges do this routinely, including when on out of hours duty. Cases where no notice is required for reasons given in PD 25A para 4.3(3) are very rare indeed” [66].
He referred to similar concerns expressed by Mr Justice Mostyn in ND v KP [2011] EWHC 457 (Fam) in relation to applications in the Family Division.
Mr Justice Tugendhat went on to point out that
“The giving of informal notice of an urgent application is not only an elementary requirement of justice. It may also result in a saving of costs. The parties may agree an order, thereby rendering unnecessary a second hearing on a return date”. [67]
The provisions of the rules in relation to “without notice” applications should be meticulously observed. The level of concern amongst judges about failures to follow the proper procedure is such that there is a substantial risk that, in future, non-compliance will result in adverse costs orders being made.
And what about the ones served outside of jurisdiction like the one I received in Massachusetts? For all those complaining about the extradition treaty with the US, it is worth remembering that the UK is not a signatory to the Hague Convention, whereas the US is. That means these questionable without notice injunctions can be served on a person directly in the US, as one was to me. And that means I have had to spend enormous sums defending it, not least because I was defamed and libeled over its contents in the notoriously ‘ethical’ British tabloid press without a right of reply. This is wholly unjust.
I might just add that one of the individuals who took this injunction out against me, then spoke to me the following day for 101 minutes and never told me what he sent a lawyer to do the day before in Court 37. At the end of the conversation, he said, “If I do something else, you can cope”!