Practice Note 02/2006

County Court for the Division of Londonderry

Injunctions

1. The most common forms of  injunction applied for in this county court division are

· Mareva injunctions

· Injunctions under the Protection from Harassment Order or where the substantive claim is in respect of an aggressive tort

Injunctions may, of course, be sought in many other civil and equity cases and the guidance in this note applies to all applications for injunctive relief.

2. Following concerns expressed by the Recorder and peripatetic judges about the almost invariable practice of such applications being  made ex-parte, the matter has been discussed by the Civil Business Listing committee.

3. The judicial concerns arise from the duty to vindicate the rights of defendants under article 6 of the European Convention on Human Rights to a fair hearing.   Practitioners will be aware of the jurisprudence on the compatability of ex-parte hearings with article 6 including, for example,  X Council v B (Emergency Protection orders [2005] 1 FLR 341 and P, C and S v UK [2002] 2 FLR 631( ECHR)

4. It is recognised that there may be cases of such urgency that an ex-parte application is justified.  Thus, for example, where the evidence is that a proposed respondent in ancillary relief proceedings will receive within a few days a lump sum and is likely to dissipate that lump sum to the possible detriment of the applicant, an ex-parte application may be appropriate.  Examples of appropriate cases for an ex-parte application for a non-molestation injunction are
• where there is a risk of significant harm to the applicant if an order is not made immediately or
• where there is reason to believe that the respondent is aware of the proceedings but is deliberately evading service and that the applicant will be seriously prejudiced by the delay involved.
• where there is a risk to the welfare of the applicant if the respondent were to be given notice of the initial application

The applicant must show that s/he needs the immediate protection of the court and the absence  of prejudice to the defendant is irrelevant (Bates v Lord Hailsham [1972] WLR 1373) Where an ex-parte order is granted an early return date, which is likely to be no longer than the end of the notice period, will be given for the inter-partes hearing.

5. The expectation, however,  is that the normal application for injunctive relief will be  by way of summons and therefore on notice to the respondent.   At the first hearing directions will be given as to the future conduct of the substantive claim on the civil bill.  If the application proceeds to a full hearing the respondent will be required to file a replying affidavit and the draft order to be filed with the application should therefore include provision for such a replying affidavit.  

6. Practitioners are reminded that a non-molestation order can only be made if the court is satisfied that the respondent has engaged in a course of conduct and that one incident, however serious, is not sufficient to ground an application for such an order.     The court will also take into account the length of time between the conduct complained of and the making of the application for an order in deciding whether an order should be granted.

7. An ex-parte application should be accompanied by a note from the solicitor explaining why s/he has deemed it necessary to make the application ex-parte and the judge will decide in the light of that explanation whether the application should be heard ex-parte or whether notice must be given to the respondent.

8. In considering what form of relief should be applied for in a non-molestation case practitioners should

a) satisfy themselves that an application in the Magistrates’ Court for an order under the Family Homes and Domestic Violence (Northern Ireland) Order 1998 could not be made before initiating proceedings to the county court for a non-molestation order and

b) consider whether other forms of injunctive relief, including, for example, in cases of neighbour disputes an order for mandamus against a public housing authority, may be appropriate.   An application for an order against a public authority should include evidence of complaints to the authority about the conduct of the neighbours.

9. The court is concerned to minimise costs in injunctive proceedings and will seek to ensure a full hearing within the shortest time possible.  Applications by respondents for legal aid to defend such proceedings should therefore be submitted as emergency applications.   The court will seek to achieve the appropriate balance between ensuring that  practitioners are properly remunerated for work done in respect of applications for injunctions and the demands on legal aid funds.

Judge Philpott

01/03/06