Ex-parte applications have historically been used in matters of urgency and/or where the need for a court order takes priority over the need to put the respondent on notice. The ex-parte process appears to have evolved. Courts appear more willing to allow applicants to make ex-parte applications when urgency is not an issue and where notice could easily have been given in advance.
As a costs firm, we see ex-parte applications being made to compel part 47 timetable compliance. We have no difficulty complying with the part 47 timetable. However, from time to time negotiations are lengthy. This is because the parties are talking and some of the part 47 timetable overruns. Most importantly, this is with the tacit acquiescence of the paying party. But rather than allowing the timetable to overrun to aid negotiations, some opportunistic representatives use the process as a means to generate costs.
In one recent example, the bill of costs was served a day late. The paying party were aware that, in view of the substantial size of the case, the drafting process was extremely involved. However, without any notice, the paying party made their ex-parte application (seeking over £500 in costs) and the court allowed it. Of course, with every ex-parte order comes a provision that allows the respondent to make an application to vary or set aside. But in cases where there is a technical breach of timetable, such an application is likely to fail, despite the genuine reasons which exist that caused the timetable to overrun.
Paragraph 43 in Denton confirms that ‘the court will be more ready in future to penalise opportunism’. Unnecessary ex-parte applications – those that lack the requisite urgency – ought to fall squarely into the ‘opportunism’ category and, as such, district judges ought to follow the guarantee issued by the senior judiciary in Denton. How is opportunism being penalised when courts are actively rewarding opportunism ?
If opponents continue to be permitted by the courts to be opportunistic then we and many others are likely to prioritise timetable compliance over negotiations. Surely this is a backward step. However, it is the only practical one while paying parties are able to abuse the ex-parte process without being challenged.
Guy Platt-Higgins, managing director, Law Costing, Birkenhead