The case of Tobias v Tobias [2017] – freezing injunctions, without notice orders and applications to the out-of-hours Judge

23 / 08 / 2017

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.