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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> JM v CZ [2014] EWHC 1125 (Fam) (27 February 2014) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2014/1125.html Cite as: [2014] EWHC 1125 (Fam) |
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FAMILY DIVISION
Strand London WC2A 2LL |
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B e f o r e :
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JM |
Applicant |
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- and - CZ |
Respondent |
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W B Gurney & Sons LLP
10 Greycoat Place, London SW1P 1SB
Telephone Number: 020 7960 6089
MR P CHAMBERLAYNE QC (instructed by Penningtons Manches LLP) appeared on behalf of the Respondent.
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Crown Copyright ©
MR JUSTICE MOSTYN:
(i) That the respondent was forbidden from going within 50 metres of the applicant's office address in the City.
(ii) She was forbidden from going within 50 metres of the applicant's home address in North London.
(iii) She was forbidden to communicate with the applicant, whether by letter, text message, e-mail, telephone or other means, except through his solicitors.
(iv) She was forbidden from harassing, pestering or molesting the applicant, whether doing so directly or by proxy.
"(a) any risk of significant harm to the applicant or a relevant child, attributable to conduct of the respondent, if the order is not made immediately;
"(b) whether it is likely that the applicant will be deterred or prevented from pursuing the application if an order is not made immediately; and
"(c) whether there is reason to believe that the respondent is aware of the proceedings but is deliberately evading service and that the applicant or a relevant child will be seriously prejudiced by the delay involved…in effecting substituted service…"
"If the court makes an order by virtue of subsection (1) it must afford the respondent an opportunity to make representations relating to the order as soon as just and convenient at a full hearing."
"Whenever an order has been made ex parte, there must be a full hearing as soon as just and convenient thereafter. There are no circumstances in English law in which it is appropriate to make an ex parte order without provision for review once an order has been served. Any such order would be unlawful. It is the duty of the court to list for a full hearing, as required by section 45…"
"[5] Although that order is not the subject of the appeal, I feel bound to express that I am a little disconcerted by some aspects of the procedure that were adopted on this occasion. I am troubled by these matters in particular. First, accepting as I do that it was just and convenient to make an order without notice to the respondent, section 45(3) of the Family Law Act 1996 nevertheless requires the court to afford the respondent the opportunity to make representations relating to the order 'as soon as just and convenient at a full hearing'. It is disappointing to note that the half-hour appointment for that further hearing could not be fixed earlier than seven weeks after the matter first came before the court. An important order with a power of arrest ordinarily deserves – indeed demands – earlier reconsideration than that, and I am surprised that the matter was not brought back to the court within no more than 14 days. If it could not be effective within that time (if, for example, the respondent had not had [the] opportunity to obtain proper legal representation) the matter might need to be adjourned again. But to leave things in the air for seven weeks without notice to a respondent that he had the right to apply to vary or discharge the order seems to me to be wrong.
"[6] The second concern is the fact that whereas the court is given the discretion to direct that the power of arrest may be attached to an order made without notice, and/or that the power of arrest may have effect for a shorter period than the initial order, those matters may not have been fully borne in mind by the district judge. Given the ease with which a power of arrest may be invoked by an applicant, the court should normally be wary about making an order of this kind for longer than is necessary to give the applicant adequate and necessary protection, but also to give the respondent the opportunity to be heard to oppose it. In this case, the order for the injunction and the effectiveness of the power of arrest were directed to endure for the whole year. The application was, however, ordered to be returned to the court within the seven-week period. A better practice, in my judgment, would be to limit the time for the injunction and the power of arrest so that they remained effective for no [more] than the conclusion of the return hearing. Those dates ought ordinarily to coincide."
"Experience shows that respondents commonly do not attend on the return date. As a result, the applicant (who has been abused by the respondent) then has to endure the inconvenience of attending at court twice to obtain the injunction, whereas the (abuser) respondent has to do nothing. Also, the respondent has to be served with two orders, not just one. This is expensive and time consuming and the two hearings are a waste of judicial resources. Many courts have therefore developed the practice of making an initial order for, say, 12 months but with the respondent being able to ask for a hearing to vary or revoke the order. The Court of Appeal has said that this is permissible.
"However, if the respondent has to apply to obtain a hearing, he or she may have to pay a fee whereas if a simple return date had been set, no fee would have been payable because the review date would have been automatic. To avoid this potential financial prejudice, the order should contain a paragraph which merely requires the respondent to 'request' (not 'apply for') a hearing to vary or revoke. Experience in routine county court cases shows this method to be simple, effective and efficient. People may write a letter with a request or sometimes just come to the court counter and ask for a hearing."
"(v) … No notice at all would only be justified where there is powerful evidence that the giving of any notice would likely lead the respondent to take steps to defeat the purpose of the injunction, or where there is literally no time to give any notice before the order is required to prevent the threatened wrongful act. Cases where no notice at all can be justified are very rare indeed. The order of the court should record on its face the reason why it was satisfied that no or short notice was given…"
In my judgment, that principle applies fully to an ex parte application made under Part IV of the 1996 Act. In UL v BK, I went on to say this:
"(vi) Where no notice, or short informal notice, is given the applicant is fixed with a high duty of candour. Breach of that duty will likely lead to a discharge of the order. The applicable principles on the re-grant of the order after discharge are set out in Arena Corporation v Schroeder [2003] EWHC 1089 Ch at paragraph 213.
The importance of candour in these applications cannot be overstated.
"My client…does not agree to replace the order with mutual undertakings. He simply does not feel that your client would adhere to her undertakings based on her previous conduct. The appropriate time for the court to consider this matter further is on 16 May 2014."
"(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred…"
I agree that the effect of that is to deflate or drive down the yardstick which would otherwise have been applied.