ex parte

The term ex parte is used in the context of application notices and their return date before a court. In ex parte applications, the respondent to the application is not represented – not through a failure to appear having been given notice, but because the applicant did not serve the respondent to the application or otherwise inform the respondent that an application would be heard by the court. Ex parte applications are frequent in application for applications for urgent interim relief, such as search orders (previously known as Anton Pillar Orders) and Freezing Orders (previously known as Mareva Orders), as giving notice of the application to the respondent would defeat the purpose of making the application in the first place: that the order must be obtained in secret, because if notice were given in the usual way, the respondent would take some action to defeat the purposes of the order intended to be sought by the application. Parties to litigation are generally required however to give notice of applications, and ex parte applications are a rare exception to this rule. It is a fundamental precept of English law that a party be entitled to be heard before an order is made against him.

Usual Practice – Applications on Notice

The usual practice in English courts for applications on notice are that the application is filed in court and then served upon the respondent a clear 3 days' notice prior to the return date. The return date is the date that the application is first brought before and heard by the court. On the return date the court may make orders requiring the parties to do or refrain from some act, but usually gives directions for the future conduct of the application, that is filing of evidence, evidence in response, evidence in reply and fixing a date for the hearing of the application when arguments are presented to the court. Thus the court hears the arguments of the parties and decides the issues in dispute between the parties.

When a respondent is not represented at a hearing (usually because it has not been served with the application notice), the application is said to be an “ex parte application”. If a party is represented, it is not an ex parte application. Moreover, whether or not an application is ex parte application or not is a separate question as to whether it is an “application on notice” or an “application without notice”.

Usage: The ex parte application for a freezing order was heard by the court.

Related Words: interim relief; application notice; litigation; court order; freezing order; search order; final hearing.