Urgent applicationsUrgent applicationsUrgent applicationsUrgent applications:guiding principleUrgent applicationsUrgent applicationsUrgent applications:order without notice to partyUrgent applicationsInterim hearings:undertakingsUrgent applicationsUrgent applicationsUrgent applications:telephone, byUrgent applications
10.65While PD 10B emphasises
1PD 10B para 4. See also Sandwell and West Birmingham NHS Trust v CD & Ors [2014] EWCOP 23, [2014] COPLR 650, (2014) 17 CCLR 395, (medical treatment case not brought to court in sufficiently good time to enable proper participation by family members). that applications that become urgent merely because steps were not taken sufficiently promptly at an earlier stage should be avoided, the court has the ability to deal with truly urgent applications 24 hours a day throughout the year. During court hours (ie weekdays between 10:30 and 16:30), it will usually be necessary for the application to be made before the judge at court, most frequently before the Urgent Applications judge in the Family Division.
2Contact details are contained at appendix G below. Out of hours, or in the case of extreme urgency, applications can be made by telephone. Not all urgent applications will require a hearing, but in the majority of cases applications which are properly characterised as urgent will carry with an element of complexity which will necessitate one being arranged in short order.
10.66If sufficiently urgent, an application can be determined even though an application form has not been issued, or even filed;
3PD 10B paras 1 and 6–7. in all circumstances, the defining characteristic of an urgent application will be that the respondent will not have been formally notified of it. It is always necessary to explain in the application form (or, if none is being filed, in clear terms to the court office or – if out of hours – the security office at the Royal Courts of Justice) precisely how urgent the application is, what level of judge is required to determine it and whether it requires a hearing.
4PD 10B para 13; although this is in discretionary terms, the reality is that these obligations are mandatory.10.67The guiding principle as regards urgent applications is that, as far as possible, the provisions relating to applications made on notice set out at paras 10.21–10.25 above should be complied with.
5PD 10B para 7. In other words, the court and the respondent(s) should be provided with as much information as soon as possible (unless, in the respondent’s case, to do so would be to defeat the purpose of the application), and that, as a minimum, steps should be taken to inform the respondent of the application by telephone or in writing.
6PD 10B para 5. The rationale for this is obvious. It means that, even if the respondent cannot properly be said to have been notified of the application, the respondent may still be able to advance their views to the court at the hearing of the application, even only in writing.
10.68The courts have repeatedly emphasised the stringency of the requirements upon those appearing before them on without notice applications and the care that must be exercised by judges in scrutinising them. In
KY v DD (Without notice applications),
7[2011] EWHC 1277 (Fam), [2012] 2 FLR 200, (2011) 14 CCLR 648. Theis J gave guidance applicable equally to applications regarding children in the Family Division of the High Court and applications in the Court of Protection. She emphasised the importance of the duty upon applicants to give full and frank disclosure,
8Endorsing guidance previously given by Munby J (as he then was) in in Re W (ex parte orders) [2000] 2 FLR 927 and Re S (ex parte orders) [2001] 1 FLR 308, [2001] 1 WLR 211 and by Charles J in B Borough Council v S and another [2006] EWHC 2584 (Fam), [2007] 1 FCR 574, (2006) 9 CCLR 596. See also the comments of McFarlane J (as he then was) in LLBC v TG, JG, and KR [2007] EWHC 2640 (Fam), [2009] 1 FLR 414, (2008) 11 CCLR 161. including of matters that would suggest that the application should not be granted, and noted further that:
•If information is put before the court to substantiate a without notice order, it should be the subject of the closest scrutiny and, if the applicant is not present in person to verify it, be substantiated by production of a contemporaneous note of the instructions. If that is not available, there may need to be a short adjournment to enable steps to be taken to verify the information relied upon.
•If additional information is put before the court orally, there must be a direction for the filing of sworn evidence to confirm the information within a very short period of time.
•It is incumbent on those advising whether such an application is justified to consider rigorously whether an application is justified and be clear as to the evidential basis for it.
10.69PD 10B provides that, where an order is made without notice to any party, the order should ordinarily contain:
•an undertaking by the applicant to serve the application notice, evidence in support and any order made upon the affected parties as soon as possible or as ordered by the court; and
•a return date for a further hearing at which the other parties can be present.
9PD 10B para 6. 10.70COPR r81 further provides that a copy of the application notice, the order and the evidence in support is to be served by the applicant on anyone named as a respondent in the application notice (if not otherwise a party to the proceedings), every party to the proceedings and any other person directed by the court, such service to take place as soon as practicable or within such date as the court may direct. Where the application has been made in a situation of exceptional urgency and no application form has been issued, an undertaking will be required that the application form in the terms of the oral application be filed on the next working day, or as required by the court.
10PD 10B para 9.10.71While PD 10B is silent on the subject, it is at a minimum good practice, if not even obligatory, for a detailed note to be made of submissions made to the judge when the respondent is not present or represented, and of the reasons given by the judge for making (or not making) the order sought. The court will often order that such a note be filed in advance of the return date; in any event, without such a contemporaneous note it can be very difficult at any later date to identify with clarity precisely how any without notice order came to be made.
10.72Where a hearing of an urgent application takes place by telephone, PD 10B envisages that, where practicable, that hearing will take place by way of a conference call arranged (and in the first instance, paid for) by the applicant through a service provider (such as BT Connect), and that the service provider will record the call. In such situations, the applicant should order a transcript of the hearing from the service provider.
11PD 10B para 12. In the authors’ experience, however, the majority of urgent telephone hearings in such cases (and especially those out of hours) take place by way of a direct telephone call between the applicant’s representative and the judge and there is no possibility of recording the call for transcription. It is further not unheard of for the judge not to have all the papers before them, and for the judge then to be relying almost exclusively upon what they are being told by the applicant’s representative. In such situations, the obligation to take a proper note of relevant matters is particularly onerous.