Katie Chew explains the lessons to be learnt from a decision of Mostyn J on how not to make a without notice application for a freezing order
In Tobias v Tobias , Mostyn J found himself once again giving guidance on the correct procedure to be adopted for without notice (ex parte) applications in general, and specifically on an application for a freezing order, in addition to the correct use of the ‘out-of-hours’ judge. This case is a pithy reminder to practitioners considering making such applications, and serves as a warning not to do so unless there are sufficient grounds and the situation is of an emergency nature.
The threshold to satisfy these conditions is so high that justification in money cases is likely to be very rare, and only appropriate in genuine situations of financial emergency.
The applicant husband was a tetraplegic residing in a care home. The wife respondent to his application lived in the marital home in Hertfordshire. The former matrimonial home had a value of £650,000. There were charges over the property in favour of commercial creditors and in respect of unpaid council tax.
The property was registered in the wife’s sole name. However, the husband had registered a notice of matrimonial home rights in his favour, which had been in place since December 2016. Mostyn J commented in the judgment that, as a result of that notice, it was ‘elementary that the property could not be sold without the consent of [the husband]’.
The case came before the court on 31 May 2017 when the husband made a without notice application for a freezing order, on an emergency basis to the out-of-hours judge, who was Keehan J. On that occasion, Keehan J declined to make the order through the out-of-hours procedure, and instead listed the application for 7 June 2016 before the ‘applications judge’.
In his judgment, Mostyn J criticised the applicant husband for his attempted use of the out-of-hours procedure in this case. Out-of-hours applications are, Mostyn J explained, suitable only:
… for extreme emergencies, for example if children are about to be removed from the jurisdiction or if a medical procedure needs to be authorised.
It is not clear why the husband or his legal team considered that the application for a freezing order qualified as an extreme emergency, justifying use of the out-of-hours judge, and indeed the husband was unable to explain his reasoning to the court (although he did comment that he was advised to take such action by staff at the Family Court at Luton).
Not only was the husband not able to explain his reasoning for using the out-of-hours process, but his witness statement in support of his application for a freezing order was also found by Mostyn J to be deficient, in that it failed to inform the court that the property in question was already heavily charged in favour of various creditors.
A further issue was that no divorce petition had been issued by the court at that point. The husband informed the court that he had sent his divorce petition to the Bury St Edmunds divorce centre, but had yet to hear further from the court, explaining that he had been informed the court was working through a 28-day backlog.
On 7 June 2017 the matter came before the applications judge, Francis J, again on without notice basis, who similarly declined to make the order without giving notice to the wife. Francis J listed the matter on notice on 15 June 2017, before Hayden J.
At that hearing, the wife gave an undertaking not to dispose of ‘any of the matrimonial assets’. In a later witness statement, she explained that this had been misinterpreted and that this undertaking was too onerous, preventing her from even spending money on a sandwich, and what she had intended was to undertake not to dispose of the marital home (something she was already prevented from doing without her husband’s consent, by virtue of the home rights notice).
Another aspect of this case is that, up to and including the order of 15 June 2017, all of the orders had been made in the High Court (Family Division), rather than in the Family Court.
On 29 June 2017, the matter came before Mostyn J for final determination, who took the opportunity to clarify the relevant principles in relation to the use of the out-of-hours judge, applications for freezing injunctions, and orders in the Family Court.
Forum and procedural considerations
One issue explored by Mostyn J was whether it was correct that the previous orders in this matter had been made in the High Court rather than the Family Court. Mostyn J contended that it is ‘impossible to conceive’ of a situation where an application for a freezing order under s37, Matrimonial Causes Act 1973 or s37, Senior Courts Act 1981 should be heard in the High Court as opposed to the Family Court. He confirmed that the Family Court has full jurisdiction to deal with such applications.
He also commented that it is unlikely that the High Court is able to exercise any further or additional powers under the inherent jurisdiction other than as set out in statute, referring to his own judgment in UL v BK (Freezing Orders: Safeguards: Standard Examples) , which explored this issue at para 14. Mostyn J’s conclusion therefore was that applications for freezing orders should only be determined in the Family Court.
The second issue to be considered was the level of judge to be allocated to determine such an application in the Family Court. The answer arrived at by Mostyn J was: a judge at the level of a district judge or higher. Conversely, a search order can only be made by a judge of High Court level.
Mostyn J also took the opportunity to set out guidelines as to what type of cases should be allocated to a judge at High Court level to determine whether a freezing order should be made. He confirmed that his statement on the efficient conduct of financial remedy hearings, dated 1 February 2016 (as amended), applies to applications for freezing injunctions and provides guidance on allocation. In summary, if the injunction relates to assets worth in excess of £15m, or income in excess of £1m, this would meet the requirement for allocation to a High Court judge. If the assets are in excess of £7.5m, it may be appropriate to allocate the case to a High Court judge provided that one of the following complicating factors also applies:
- there is a serious case advanced of non-disclosure of assets;
- substantial assets are held offshore, either directly or through the medium of trust or corporate entities, and there may be issues as to the enforceability of any award;
- substantial assets are held in trusts that are said to be variable nuptial settlements;
- substantial assets are held through the medium of unquoted corporate entities, and detailed expert valuation evidence will be required;
- a serious, carefully considered and potentially influential argument is advanced in relation to compensation, non-matrimonial property, or conduct;
- there are serious, substantial third-party claims to the assets otherwise subject to the dispositive powers of the court;
- there is a serious, carefully considered and potentially influential issue as to the effect of a nuptial agreement; or
- the application involves a novel and important point of law.
Where, on any view, the net assets do not exceed £7.5m, allocation to a High Court judge is only likely to be proportionate where the application involves a novel and important point of law.
Pursuant to the guidance above, given that none of the complicating factors applied to the husband’s application, it had not been appropriate for the matter to have been allocated to High Court judges.
Without notice applications and the out-of-hours procedure
Mostyn J referred to guidance for making without notice applications, again as set out in his judgment in UL v BK, ie that:
- without notice applications will only be appropriate in situations of exceptional urgency;
- short or informal notice must always be given unless it is essential for the respondent not to be aware of the application; and
- the applicant has a high duty of candour when making an application without notice that, if breached, could lead to the order being discharged.
He also referred to the president’s guidance dated 18 January 2017, which confirms that without notice applications will only be appropriate when:
- there is an emergency, or other great urgency, so that it is impossible to give any notice, however short or informal; or
- there is a real risk that, if alerted to what is proposed, the respondent will take steps in advance of the hearing to thwart the court’s order, or otherwise to defeat the ends of justice.
This guidance needs to be carefully scrutinised before making a without notice application, and particularly so when considering use of the out-of-hours judge. Indeed, Mostyn J stated that he found it ‘virtually impossible’ to conceive of a scenario in which a money case could meet the necessary requirements to justify such a step. He provided the following examples that he concluded could possibly justify approaching the out-of-hours judge:
- a vast sum of money is about to disappear into a safe haven from which it would be impossible to recover; or
- a contract is about to be signed (presumably with the effect of irrevocably dissipating marital assets).
It is doubtful that anything less dramatic or urgent would justify use of the out-of-hours judge.
For those reasons, the husband’s application was found to be deficient both procedurally and substantively. It was not deemed to be of an urgent nature, owing to the fact that the husband had registered his home rights notice, which had the effect of freezing the property in any event as the wife was thereby prohibited from disposing of the property without the husband’s consent.
Furthermore, the husband was criticised for his lack of full candour in his application by neglecting to highlight to the court the extent of the charges against the property. In short, the application was made in the ‘wrong court at the wrong time, for the wrong reasons’. There was nothing that had justified approaching the High Court, let alone the out-of-hours judge on a without notice basis. The husband’s application was therefore dismissed.
Interestingly, a footnote to the judgment has been published following receipt of a note from HHJ Roberts, the designated family judge for Essex and Suffolk (the circuit in which the Bury St Edmunds Divorce Centre is located). HHJ Roberts wrote:
I particularly picked up on paragraph 3 [of Mostyn J’s judgment] in which you record that the applicant had said that he had filed a petition at [Bury St Edmunds divorce centre] which was waiting to be issued as they were working on a 28-day backlog and that the petition had still not been issued. I asked for checks to be made at [Bury St Edmunds divorce centre] and am informed by the manager that no petition has been received from or on behalf of [the husband]. I understand that the case is over but I am keen for the family law world to appreciate that [Bury St Edmunds divorce centre] is working very well. In early June this year, for example, there was no more than a five-day turnaround for divorce petitions to be received and issued.
My own experience of the Bury St Edmunds divorce centre is that a 28-day backlog is not unheard of, although at the time of writing the backlog is just nine days. Practitioners will need to have consideration as to whether any financial applications may need to be issued on a fairly urgent basis within any backlog of work at their designated divorce centre, and if so, whether it is necessary for the divorce petition to be issued urgently at the counter instead.
Lessons to be learnt
The principles from Tobias can be summarised as:
- an application for a freezing injunction should be made in the Family Court;
- it should be allocated to a district judge or higher;
- cases will only be allocated to a High Court judge if the assets are in excess of £15m, or in excess of £7.5m and accompanied by one of the complex factors/novel points of law detailed in Mostyn J’s guidance;
- an application for a freezing order should be made on notice (or at least provide for short or informal notice if full notice is not possible);
- a without notice application (of any nature, whether a money or other case) will only be appropriate if there is a real emergency or it is impossible to give notice, or there is a risk of ‘tipping off’ the respondent;
- the out-of-hours procedure is for extreme emergencies only, and in money cases it will be very rare and difficult to justify contacting the out-of-hours judge;
- applicants must satisfy the requirement of full candour when making an application; and
- a divorce petition will need to have been issued as a prerequisite to a freezing injunction.