JM v CZ

Under section 45(3) of the Family Law Act 1996, an ex parte order must be followed very shortly by a full inter partes hearing. Liberty to apply does not itself satisfy that obligation. Ex parte relief in Part IV proceedings is justified only by exceptional urgency. At least short informal notice should ordinarily be given, and no notice requires powerful evidence that notice would defeat the injunction’s purpose or that there is literally no time to give it. The applicant owes a high duty of candour. Breach may lead to discharge, but refusal to re-grant protection is not automatic where protection remains necessary. Where a compromise substantially reflects an earlier offer, the offer normally provides the starting point for costs. Standard costs are assessed by reference to proportionality, and indemnity costs require conduct taking the case out of the norm.

The respondent applied to discharge an ex parte non-molestation order made under Part IV of the Family Law Act 1996. The parties had been in an intimate relationship which did not involve cohabitation. The order prohibited the respondent from approaching or communicating with the applicant and was listed for reconsideration nearly six months later, while giving her liberty to apply.

The substantive dispute was compromised by cross non-molestation undertakings expiring on 20 May 2014. The remaining issue was costs, including the procedural validity of the original order, the effect of the respondent’s rejected offer of cross undertakings, and the appropriate basis and amount of assessment.

1. Ex parte review. Section 45(3) of the Family Law Act 1996 requires a full inter partes hearing as soon as just and convenient after an ex parte order. Merely giving the respondent liberty to apply is insufficient. A return hearing should ordinarily be fixed very shortly after the order, and the duration of the injunction should normally be no longer than necessary to protect the applicant pending that hearing. The order made in this case was therefore wrong.
2. Justification and candour. The principles governing ex parte relief in Family Law Act 1996 Part IV proceedings require exceptional urgency. Short informal notice should ordinarily be given. No notice is justified only where powerful evidence shows that notice would probably defeat the purpose of the injunction, or where there is literally no time to give notice. The order should record why notice was omitted or shortened. The applicant is subject to a high duty of candour. Breach will likely lead to discharge, but the principles governing re-grant must be tempered in protective proceedings; refusal to re-grant should not become an instrument of injustice where protection is still needed.
3. Costs. The respondent’s offer of cross undertakings substantially reflected the eventual compromise and had been unwisely rejected. The starting point was therefore an order that she receive her costs. Indemnity costs were not justified because there was no conduct taking the case out of the norm. On a standard assessment under CPR 44.3(2) and CPR Practice Direction 44, paragraph 6.2, only proportionate costs are allowed. The appropriate yardstick was 70 per cent of the costs claimed, producing an award of £34,200 payable within 14 days.

This was a first-instance costs judgment in the High Court (Family Division). The substantive dispute had been compromised by cross non-molestation undertakings. The respondent’s application to discharge the earlier ex parte order was not determined after full argument.