1. What is an ex parte application, and why are certain interlocutory applications, such as applications for Mareva injunctions and Anton Piller orders, made without notice to the other party?

1. What is an ex parte application, and why are certain interlocutory applications, such as applications for Mareva injunctions and Anton Piller orders, made without notice to the other party? 

An ex parte application is an application made to the court without giving prior notice to the other party and without that party being present at the hearing. 

This is different from the usual type of court application, where both parties are notified and have an opportunity to attend and present arguments. That usual procedure is sometimes called an inter partes application, meaning an application heard “between the parties”. 

An ex parte application is an exception to the ordinary principle of natural justice, namely that a person should usually have a reasonable opportunity to be heard before a court makes an order against them. 

For that reason, an ex parte application is treated as an exceptional and provisional measure. It is generally allowed only where there is a strong justification for not giving ordinary notice to the other side. 

Rationale for ex parte applications 

Courts generally permit ex parte applications in three main situations. 

(i) Extreme urgency 

An ex parte application may be allowed where the matter is so urgent that there is no time to give the other party notice without causing injustice to the applicant. 

For example, the situation may be so pressing that there is no time to give even very short warning before the application is heard. 

(ii) Need for secrecy 

An ex parte application may also be justified where giving notice would likely frustrate the purpose of the application. For example, if a defendant is warned of an Anton Piller order, he might destroy evidence; if warned of an asset freeze, he might move his money out of the jurisdiction. 

(iii) Administrative necessity 

In some cases, an ex parte application may be used for administrative or practical reasons, such as where a summons has been issued but the court cannot hear it for some time, or where the defendant needs time to serve evidence. 

Key examples in civil litigation 

Two important examples of powerful interim relief are often sought ex parte. 

(i) Mareva injunctions 

A Mareva injunction is an order freezing a defendant’s assets. It is intended to prevent the defendant from dissipating or removing assets before judgment can be enforced. 

Because advance notice may allow the defendant to move assets, these applications are often made ex parte. 

For more information, please refer to “What can the plaintiff do if the defendant is likely to dispose of his assets improperly before the case proceeds to trial?” 

(ii) Anton Piller orders 

An Anton Piller order is a mandatory order requiring a defendant to permit a search of premises and the seizure or preservation of important evidence. 

Because advance notice may allow evidence to be destroyed or hidden, these applications are also commonly made ex parte. 

For more information, please refer to “Anton Piller orders” 

Duty of full and frank disclosure 

Because the judge hears only from one side in an ex parte application, the applicant owes the court a strict, non-delegable duty of full and frank disclosure. 

This means the applicant must act with the highest good faith. 

The applicant must: 

• Disclose all material facts, including facts that are unfavourable to the applicant’s own case; 
• Fairly state the arguments, points, and likely defences that the absent party would probably raise; 
• Disclose not only what the applicant knows but what he would have known if he had made proper and reasonable inquiries; 
• Explain why the application is being made ex parte; 
• Explain why notice was not given to the other party; and 
• Ensure the court is not misled by omission, exaggeration, or incomplete presentation of the facts. 

This duty is ongoing. The applicant must inform the court of any material change in circumstances while the proceedings remain on an ex parte basis. 

Consequences of the breach of the duty of full and frank disclosure 

The consequences of non-disclosure will depend upon the nature and extent of the non-disclosure. The most common and immediate consequence of material non-disclosure is that the order will be set aside or discharged. This discharge often occurs without the court even investigating the substantive merits of the plaintiff's case. 

This can happen even where the failure was not deliberate, but resulted from an error of judgment. The court takes this strict approach to deter misuse of ex parte procedures. 

A court may still consider a new application for an injunction even if an earlier injunction was set aside because the applicant failed to disclose material information. However, the court will be cautious about granting the injunction again. 

When deciding whether to grant fresh relief, the court will look closely at: 

• how serious the non-disclosure was; 
• whether the missing information was important to the original decision; 
• whether the failure to disclose was accidental, careless, or deliberate; 
• whether the injunction could have been properly granted had full disclosure been made initially; and 
• whether it would be fair to grant the injunction again. 

If the applicant deliberately failed to disclose material facts, it will usually be very difficult to persuade the court to grant a new injunction. In those circumstances, fresh relief will only be granted in exceptional cases. 

Procedural framework for ex parte applications 

Ex parte applications are usually supported by sworn affidavit/affirmation evidence. 

The affidavit/affirmation should contain a clear and concise statement of the relevant facts and should address the reasons why the application must be heard without notice. 

In cases of extreme urgency, if there is not enough time to prepare an affidavit/affirmation, a judge may hear the facts orally. However, the applicant will usually have to undertake to file a formal affidavit/affirmation as soon as possible afterward. 

The application must also be accompanied by a draft of the order sought and a skeleton argument identifying relevant passages in the evidence. 

Hearing in chambers 

Ex parte applications are typically heard in a judge’s chambers and are generally not open to the public. 

Temporary nature of ex parte orders 

Orders granted ex parte are usually temporary. They commonly include a return date of an inter partes hearing, when the affected party can come before the court and argue that the order should be varied, continued, or set aside. 

The return date is often fixed for the next available summons day, commonly a Friday morning, depending on the court’s practice and availability. 

Ex parte applications “on notice” 

In some urgent cases, secrecy may not be necessary, but there may not be enough time to issue and serve an ordinary summons in the usual way. 

In such cases, the applicant may give informal short notice to the other side, for example by telephone or email. 

If the other party attends the hearing, the application may sometimes be described as an “opposed ex parte motion”. In practice, it may function similarly to an inter partes hearing, because both sides are present and can address the court.