UK: The Case Of Tobias V Tobias [2017] - Freezing Injunctions, Without Notice Orders And Applications To The Out-Of-Hours Judge

Last Updated: 12 September 2017
Article by Sarah Campbell

On 29 June 2017,  a Judgment was given in the case of Tobias v Tobias ([2017] EWFC 46) which gave guidance in relation to freezing injunctions, without notice orders and applications made to the out-of-hours Judge – all of which are explained further below.

The background to the case is that there was a property owned in the wife's sole name which the parties previously resided in as the former matrimonial home. At the time of the Judgment the wife was still living in that property but the husband was living in a care home.

The husband had a Home Rights Notice registered upon the property. By way of explanation, a Home Rights Notice can be entered against the property title by a Husband, Wife or Civil Partner in respect of a property that is or was the family home. A notice can only be registered against 1 property at any one time.  If the notice is registered, it puts others on notice of that person's interest (including a right of that person to occupation of the property). It serves as a protection for the non-owner spouse. Despite a Home Rights Notice being registered it does not however determine the beneficial interests in the property.

The property  in this case also had charges upon the property title – meaning that monies that had been borrowed had been registered (by way of mortgages/legal charges) against the property.  The Local Authority also had a legal charge on the property in relation to unpaid council tax.

The husband in this case sought a freezing Order in relation to the property on an ex-parte basis (meaning that it was sought without prior notice to the wife). The freezing Order, if an application had have been successful, would have had the effect of preventing the wife from disposing of/dealing with the property pending the resolution of the case.

The husband also sought to make the application not only on an ex-parte basis but he also made the application to the out-of-hours High Court Judge.  An application for an out-of-hours Judge to deal with a case would only be in appropriate circumstances, e.g. if there is an urgency/an emergency.

It was said however that when making the application, the husband's statement in support was defective and he also did not make a formal application. Moreover, the Court had not received  a Divorce Petition in this matter at that time and therefore they were not able to deal with the application at that stage in any event.

A few weeks later, the application came in front of the Honourable Mr Justice Mostyn whereby at the hearing, the wife was present and was legally represented and the husband "attended" the hearing via telephone and he acted in person (i.e. without legal representation).

Mr Justice Mostyn  took some time to set out some principles in this area, including as follows:

  • The Family Court has jurisdiction (power) to deal with this type of application and he went onto say that "it is impossible to conceive of any circumstances where an application for a freezing order should be heard in the High Court, rather than the Family Court".
  • In relation to what level of Judge could hear this type of application – a District Judge, Circuit Judge or a High Court Judge could hear this type of application (an application for a freezing Order).
  • In relation to the latter level of Judge, they would only hear the application in certain circumstances: "if the application for a freezing injunction seeks to freeze assets in excess of   £15 million, then it would be appropriate to approach a High Court judge.  If the application is to freeze assets in excess of £7.5 million, and it is accompanied by the factors of complexity ...then it would be appropriate to approach a High Court judge.  However, if the assets which are sought to be frozen do not, on any view, exceed £7.5 million, then it would only be appropriate to approach a High Court judge if the application involves a novel and important point of law". 
  • Mr Justice Mostyn also reminded practitioners of the guidance in the case of L v K [2014] Fam 35 and the President's Guidance of 18th January 2017 in relation to ex parte (without notice) order applications; with him confirming that "In paragraph 7 of that guidance, the President stated 'I remind all practitioners and judges of the principle which applies to all ex parte injunctive orders made by the Family Court or by the Family Division, irrespective of the subject matter of the proceedings or the terms of the order, that a without notice application will normally be appropriate only if: (a) there is an emergency or other great urgency so that it is impossible to give any notice, however short or informal, or (b) there is a real risk that, if alerted to what is proposed, if tipped off, the respondent will take steps in advance of the hearing to thwart the court's order or otherwise to defeat the ends of justice'".

Here, the application was not to be dealt with ex-parte (without notice to the wife). In addition, not only was it held that the application should not be determined ex parte (without notice to the wife), in the circumstances, Mr Justice Mostyn also confirmed that the husband did not have grounds to make this application to the out-of-hours Judge. He went onto state that "I find it virtually impossible to conceive of any circumstances in any money case where it would be appropriate to approach the emergency out-of-hours judge for an injunction. I suppose that, if it could be said that there was strong evidence that a vast sum of money was just about to leave the jurisdiction and disappear to some king of safe haven or if there was strong evidence that a contract was about to be signed, that there might be justification for approaching the emergency out-of-hours judge but it would need a drama of that magnitude to justify it."

This case therefore serves as an important reminder of when – and when not – an application for a freezing Order should be made ex parte (without notice) to the other party and it confirms that it is conceived that it would only be in extremely rare circumstances that it would be appropriate for an application to be made in this type of matter to the out-of-hours Judge. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions