Ex parte applications: Health Warning: Wasted Costs

B-v-A 10.12.12 Charles J

The judge made a wasted costs order in respect of the Respondent's costs incurred in relation to proceedings in which a Location order had been made ex parte and which after it had become apparent the Respondent was not in the jurisdiction, was left in place as a precaution.

Charles J is scathing in respect of the practises and procedures of the FD in respect of Tipstaff orders and what he perceives as the casual attitude to their use.  

His judgment is long and is worth reading for those who practise in this field.

One extract illustrates his view.

'The potentially serious impact of such orders means that those who apply for them and those who grant them should act with caution and due regard to the principles and procedures relating to the grant of relief on a without notice basis (see for example Young v Young  [2012] 2 FLR 470 at paragraph 26 (ii) to (v). 

KY v DD (Injunctions) [2011] EWHC Fam 1277, [2012] 2 FLR 200 confirms the need for caution, care, rigour  and close scrutiny in respect of applications for and the grant of Tipstaff orders on a without notice basis.

In my view, a practice of granting and continuing Tipstaff orders in Hague Convention cases as a matter of course and without insisting on properly prepared, particularised and updating evidence is to be deprecated'Understandably, the father’s solicitors also point out that each of the judges (and in particular the judge on 12 December 2011) made the orders sought  on the basis of the information provided and did not raise points or make any complaint about any non-compliance with the principles and procedures relating to without notice applications.  This leads to the point (not raised by the father’s solicitors, but by me during argument) whether such a failure can be said to be negligent if it accords with an endemic and seriously flawed approach of practitioners and judges in the Family Division to the making and granting of without notice applications.

I have dealt with the serious and in my view inexcusable failures to comply with the principles and procedures relating to without notice applications in this case in paragraphs 56 to 79 hereof.

Although, as I have mentioned I have sympathy with the father’s solicitors, in my view, those serious failures to comply with those principles and practices are negligent in the Ridehalgh sense, and cannot be justified or excused by endemic failures to apply them by practitioners and judges in the Family Division.