Sir John Donaldson MR explained that: ‘In terms of jurisdiction, there can be no doubt that this court can hear an appeal from an order made by the High Court upon an ex parte application. This jurisdiction is conferred by section 16 (1) of the Supreme Court Act 1981. Equally there is no doubt that the High Court has power to review and to discharge or vary any order, which has been made ex parte. This jurisdiction is inherent in the provisional nature of any order made ex parte and is reflected in R.S.C., Ord. 32, r. 6 . . As I have said, ex parte orders are essentially provisional in nature. They are made by the judge on the basis of evidence and submissions emanating from one side only. Despite the fact that the applicant is under a duty to make full disclosure of all relevant information in his possession, whether or not it assists his application, this is no basis for making a definitive order and every judge knows this. He expects at a later stage to be given an opportunity to review his provisional order in the light of evidence and argument adduced by the other side and, in so doing, he is not hearing an appeal from himself and in no way feels inhibited from discharging or varying his original order. This being the case it is difficult, if not impossible, to think of circumstances in which it would be proper to appeal to this court against an ex parte order without first giving the judge who made it or, if he was not available, another High Court judge an opportunity of reviewing it in the light of argument from the defendant and reaching a decision. This is the appropriate procedure even when an order is not provisional, but is made at the trial in the absence of one party: see R.S.C., Ord. 35, r. 2 (1), and Vint v. Hudspith (1885) 29 Ch.D. 322 to which Mr. Tager very helpfully referred us this morning.’
Judges:
Sir John Donaldson MR
Citations:
[1983] 1 WLR 721
Jurisdiction:
England and Wales
Cited by:
Cited – S v Suren and Another QBD 10-Sep-2004
. .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 20 August 2022; Ref: scu.549469
