Return dates and costs on domestic abuse applications

In JM v CZ [2014] EWHC 1125 (Fam), Mostyn J makes a number of helpful remarks about injunctions, undertakings, return dates and costs. A man had obtained a without notice order (it was not explained to the judge why the order was made without notice). The order was to injunct a woman with whom he had an ‘intimate personal relationship… of significant duration’ (Family Law Act 1996 s 62(3)(ea)). The injunction proceedings were eventually compromised by both parties giving undertakings to the court; but not before the applicant man had – initially, and through his solicitors, Charles Russell LLP – refused to settle on such terms (para [20]).

This refusal lead Mostyn J to award costs – ‘the starting point is that the [woman] should have her costs’ (para [23]) which he assessed on a standard basis at 70% of £49,000 (sic): each side had leading counsel and a fixture of a day to argue about costs: an example of Jarndyce (Dickens: Bleak House) without the trust fund, perhaps.

Return date procedure

In the Principal Registry (it seems) injunction orders are made without notice and then not necessarily fixed with a return date. This is unlawful. A return date must be fixed (Family Law Act 1996 s 45(3)). Mostyn J therefore speculated on a procedure for return dates; but then fell into the worst of both administrative judicial worlds (he mentions his civil servant role of drafting ‘standard orders’).

He asked for ideas from the two QCs in front of him as to how a procedure to avoid return date court hearings, and then – on the hoof – took up the idea of one of them:

[13] …. the return date should be listed, say, 14 days after the initial ex parte order had been made but that the respondent ought to confirm in writing, seven days before the return date, both to the applicant and to the court, whether he in fact wished to attend on the return date and to argue for variation or discharge of the order; and that if the respondent failed to write to the court within that period, it would be open to the applicant to notify the court that the return date should be vacated and to invite the court to extend the injunction as a matter of box work.  That proposal seems to me to meet and fairly balance the competing considerations.  Were that procedure to be adopted, the present practice of saving court resources would be preserved but at the same time a respondent who wished to have a full hearing – to which section 45(3) entitles him – would be able to have one. 

In JM v CZ he goes a little outside the ‘standard order’ brief; and he does not do it by the rule in Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171 (a case he ignores). In accordance with Bovale he could have formally proposed a ‘gap’ Practice Direction (with perhaps a little more consultation).

He provides helpful ideas; but then leaves practitioners, lay parties and court staff alike not knowing whether this is now a judicially approved procedure, whether it applies only in the CFC (‘Central Family Court’) or around the country; and if so when it is to start. Probably, for now, it is none of these things.


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