Court of Appeal
In re B (Children: Police Investigation)
[2022] EWCA Civ 982

Macur, Peter Jackson, Nugee LJJ
2022 June 28; July 15

PracticeInjunctionInterlocutoryApplicant obtaining interim injunctive relief from High Court on ex parte applicationGuidance to applicant and to High Court on practice to ensure respondent fully and properly informed of hearing and of order

The High Court has undoubted power to grant injunctive relief on the application ex parte of the applicant, and will not hesitate to do so when the circumstances are either of such urgency that proper notice cannot be given to the respondent, or that it is essential to proceed without tipping off the respondent because of the risk that he would frustrate the proposed order by pre-empting it. Because the respondent is not present at such a hearing, it is in general essential in the interests of fairness that he is fully and properly informed of what happened at the hearing. The following aspects of practice apply in all divisions of the High Court. First, the applicant provides the respondent with the evidence on which the ex parte order was obtained. If the evidence was put before the court by way of witness statements (or affidavits), copies are served together with the order. If, as happens in cases of great urgency, the application is made without time for formal evidence to be prepared and the application is supported by draft witness statements or affidavits, or is made on allegations put forward by counsel on instructions, an undertaking is given to confirm the drafts, or the facts alleged, by way of signed or sworn evidence, and that is again served on the respondent. Second, a full and proper note of the ex parte hearing is prepared and served on the respondent. That is in large part for the benefit of the applicant himself, to demonstrate that the court was referred to the appropriate evidence and legal principles and hence that the duty of full and frank disclosure was complied with; but it is also for the benefit of the respondent who is entitled to know the basis on which the court made its order against him, and for the benefit of any other judge who has to consider the matter. Third, a proper order is drawn up, sealed and served as soon as possible. The court’s order is effective as soon as pronounced, and in appropriate cases the respondent is informed of the effect of the order without waiting for the formal order to be drawn up and sealed. A respondent informed that the court has made an order against him is obliged to comply with it even before sight of the sealed order and is in contempt of court if he does not do so. The order should nevertheless be properly drawn up, sealed and served as soon as that can be done. Sealing and serving an order enables the respondent (and any other judge, including the Court of Appeal) to see clearly and unequivocally the precise terms of the order which the court has approved (paras 60–65).

Richard Horwell QC and Naomi Carpenter (instructed by Director of Legal Services, Metropolitan Police) for the applicant, the Commissioner of Police of the Metropolis.

Stuart McGhee (instructed by W Legal Ltd) for the respondent father.

Anthony Metzer QC and Charlotte Proudman (both acting pro bono) (instructed by Dawson Cornwell) for the respondent mother.

Fraser Peh, Barrister

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