An Ex Parte Order Left Unserved for Eleven Weeks

The Dispute

A company had been negotiating a business arrangement with an artist, built around her existing body of work and what it might earn. The arrangement was never completed, and the relationship between the two sides broke down. The company came to believe the artist was selling works it claimed an interest in, so it went to court without telling her and obtained an order tying up her work.

The Parties’ Positions

The plaintiff company defended the order on the footing that its claim rested on a partnership agreement negotiated with the artist, and on the representations, misrepresentations and contracts pleaded in its notice of claim. It maintained that the artist was taking her work to other markets, and that those sales were steps taken to nullify the effect of the order. It applied separately for a finding of contempt, the artist having failed to deliver the list of works the order required her to produce.

The defendants applied to set the order aside for want of full and frank disclosure, contending that the supporting affidavit rehearsed the pleaded allegations instead of facts within the deponent’s own knowledge, and had purported to depose to the artist’s unexpressed intentions. They produced the partnership document itself, which had not been placed before the judge who made the order, and which was a draft taken from the internet naming neither corporate party, with the space reserved for the definition of the partnership’s business left blank. They relied on the interval between the making of the order and its service, and on the artist’s evidence that she had no intention of leaving the jurisdiction. On contempt, the artist deposed that she had attended the storage facility holding most of the works and had been refused entry. The question was whether an order made without notice, and obtained on an assertion of urgency, could stand on that material.

The Court’s Decision

The court held that the applicant had failed to make full and frank disclosure, the affidavit having recited allegations and conclusions of law from the pleading contrary to Rule 22-2 (12) of the Supreme Court Civil Rules. It observed that the plaintiff had offered no explanation for the steps taken to notify the defendants during that delay, and it held that the artist’s sales were her ordinary business rather than a step to nullify the order. It found the partnership document worthless as a foundation, and the order uncertain in scope, the property it covered never having been defined.

Setting the order aside on all of those features, the court also refused the contempt application, the refusal of entry to the storage facility being a complete defence. It awarded the defendants ordinary costs payable forthwith, leaving the company with an immediate liability and no security over the works.

Key Lessons for Applicants and Respondents on Ex Parte Applications

• Swear the supporting affidavit to facts, not to the pleading. Rule 22-2 (12) confines an affidavit to what its deponent could give in evidence at a trial, and an affidavit reproducing the allegations and conclusions of law from a notice of claim may be held defective.
• Serve an order made without notice at once. The urgency an applicant relies on is examined again when the order is challenged, and an unexplained interval before service invites a finding that urgency was not made out.
• Put the governing document before the court on the application. The document this claim rested on reached the court for the first time on the application to set the order aside, and an applicant who leaves a central instrument out of its material surrenders the chance to explain it.
• Draft the order so that a stranger can identify what it covers. An order listing assets without names or quantities may be found uncertain in scope, and Practice Direction 47 requires an applicant departing from a model order to provide a blackline and explain the basis for it.

The outcome of this application turned on the affidavit material before the court and on the terms of the order as it was drawn. A similar application may resolve differently.

ATAC LAW acts for claimants and for responding parties in civil and commercial litigation, including applications for injunctive relief and applications to set that relief aside.

This matter was conducted by Dan H. Griffith, a partner at ATAC LAW, who acted for the plaintiff company.