![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Family Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> C v C [2005] EWHC 2741 (Fam) (29 November 2005) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2005/2741.html Cite as: [2006] Fam Law 353, [2006] 1 FLR 936, [2005] EWHC 2741 (Fam) |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
FAMILY DIVISION
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
C |
Petitioner |
|
- and - |
||
C |
Respondent |
____________________
Mr Philip Rainey (instructed by Field Fisher Waterhouse) for Citibank NA
The respondent husband was neither present nor represented
Hearing dates: 22, 24 November 2005
____________________
Crown Copyright ©
MR JUSTICE MUNBY
This judgment was handed down in private but the judge hereby gives leave for it to be reported.
Mr Justice Munby :
The facts
"If necessary, we shall apply to the Judge without notice in order to obtain these documents, to which our client is plainly entitled."
Citibank's solicitors sent a 'chasing' letter the following morning (24 November 2005). The wife's solicitors replied in a letter sent the same morning in which they said:
"You are not a party to [the] proceedings and we had no instructions to speak to you last night … We are in the process of family proceedings which are confidential to the parties. It would be entirely inappropriate for us to send you copies of our client's affidavit and supporting documentation without leave of the Court. However the authority referred to in Counsel's note was W v H (Family Division: without notice orders) [2000] 3 FCR 481."
The authority to which they referred is in fact reported as W v H (ex parte injunctions) [2000] 3 FCR 481 and as Re W (Ex Parte Orders) [2000] 2 FLR 927. I shall refer hereafter to the latter report.
The law
"the applicant's legal representatives should respond forthwith to any reasonable request from the party injuncted or his legal representatives either for copies of the materials read by the judge or for information about what took place at the hearing. Persons injuncted ex parte are entitled to be given, if they ask, proper information as to what happened at the hearing. At the very least they are entitled to be told, if they ask, (a) exactly what documents, bundles or other evidential materials were lodged with the court either before or during the course of the hearing and (b) what legal authorities were cited to the judge."
"the elementary principle of natural justice, now of course underpinned by Art 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, that cases have to be decided solely on the basis of evidence which is known to both parties and that it is therefore not right to give a judge information in an ex parte application which cannot at a later stage be revealed to a party affected by the result of the application."
"the principle of natural justice which applies wherever legal proceedings involve more than one person, and one party is asking the tribunal for an order which will affect and bind another. Natural justice requires that each party should have an equivalent right to be heard. This means that if one party wishes to place evidence or persuasive material before the tribunal, the other party or parties must have an opportunity to see that material and, if they wish, to submit counter material and, in any event, to address the tribunal about the material. One party may not make secret communications to the court."
"natural justice requires amongst other things that a party adversely affected by an order must have an opportunity to see the material upon which his opponent relies and to address the court about it."
Conclusion
Some other points
"those who obtain ex parte injunctive relief are under an obligation to bring to the attention of the respondent, and at the earliest practicable opportunity, the evidential and other persuasive materials on the basis of which the ex parte injunction was granted."
In other words, information should be volunteered without waiting to be asked. That principle no doubt applies in the case of those parties against whom the injunction has been obtained. But I see no reason why it should be extended to those, not parties and not themselves injuncted, who are merely served with or given notice of an injunction. In their case the obligation, it seems to me, is confined to supplying information when asked. After all, banks served with freezing orders might not welcome becoming the automatic recipients of all the often voluminous evidence put before the court.
"Even outside the Family Division that principle is subject to certain narrow exceptions: see Re Murjani (A Bankrupt) [1996] 1 WLR 1498. Moreover, as I pointed out in Kelly v BBC [2001] 1 FLR 197, it is also qualified in the context of cases in the Family Division concerning children by the principle considered by the House of Lords in Official Solicitor to the Supreme Court v K and Another [1965] AC 201 and In re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593."
(See also now Re B (Disclosure to Other Parties) [2001] 2 FLR 1017 and the case discussed at [2004] Fam Law 594.) None of these exceptions or qualifications is relevant for present purposes – indeed, they are unlikely ever to be relevant in the context of a freezing injunction – so I need say no more about them.
"This may give rise to a practical problem, for very often the material relied on in support of the application for such an injunction will be contained in affidavits or witness statements filed in the substantive children proceedings which contain a mass of other information which is of no relevance to the application for the injunction, which there is no need for the media or any other third party to see and which it is highly undesirable that they should be allowed to see.
That is, however, no reason for denying the media their right – and in my judgment it is their unqualified right – to see the material which has been relied upon against them. If, as will typically be the case, it is not appropriate for the media to see the material in the form in which it was originally filed with the court, the solution is not to deny them what they are plainly entitled to as a matter of natural justice – and what, I might add, they will plainly be entitled to in accordance with Art 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 once theHuman Rights Act 1998 comes into force – but rather to set out the relevant material in a separate affidavit or affidavits which can be shown to the media."