C v C

Where an ex parte injunction affects a person served with or given notice of it, that person is entitled to proper information about the evidence and material placed before the court. The entitlement is not confined to parties or persons expressly injuncted. It arises from natural justice and fairness, reinforced by Article 6. A third party who requests the material should receive it without first obtaining a court order. For a non-party merely served with notice, the obligation is generally to provide the material when requested, rather than to volunteer it. Confidentiality alone is not an answer. Relevant material may, where appropriate, be extracted into a separate affidavit.

In pending divorce proceedings, the wife obtained without-notice worldwide freezing relief concerning a London property which she alleged was beneficially owned by the husband. Citibank NA, whose mortgage or charge affected the property, was served with notice of the injunction but was not a party and was not itself injuncted. Citibank requested the evidence, counsel’s note and hearing notes supporting the order. The wife’s solicitors considered that confidentiality prevented disclosure without a further court order.

The issue was whether the disclosure principle stated in Re W (Ex Parte Orders) [2000] 2 FLR 927 applied to a non-party served with or given notice of an injunction.

1. Disclosure entitlement. The principle in Re W (Ex Parte Orders) [2000] 2 FLR 927 applies to any person served with or given notice of an ex parte injunction, whether or not that person is a party or has been personally injuncted.
2. Natural justice. The rule reflects the broad principle that a case should be decided on material known to those affected by the order. It is not confined to freezing orders or financial cases. A person who may be exposed to contempt proceedings for participating in or facilitating a breach has a sufficient interest to obtain the underlying material.
3. Practical consequence. Citibank’s solicitors were entitled, on demand, to copies of the requested documents. The wife’s solicitors should have supplied them without requiring Citibank to apply to the court. Confidentiality of the family proceedings was not, by itself, an answer.
4. Limits. The obligation to volunteer material at the earliest practicable opportunity applies to parties against whom relief is obtained. It does not generally extend to non-parties merely served with or given notice of the injunction; for them, the obligation is to supply information when asked. Narrow exceptions exist but were irrelevant to a freezing injunction.
5. Method of disclosure. Where relevant material is embedded in documents containing unrelated sensitive information, it may be set out in a separate affidavit or other focused disclosure. No criticism was intended of the solicitors, who had reasonably considered that a court order was required.