There is a general principle that a court order in England and Wales should not be made against a party without it having an opportunity to respond. However, there are exceptions to this principle and it may be possible to make a "without notice" or "ex parte" application in a limited range of circumstances. Sometimes an ex parte application is made on notice to your opponent, but they do not attend the hearing.
One of the exceptions may arise for life sciences applicants who wish to challenge the decisions of public bodies through Judicial review. Judicial review can be a lengthy process and if the applicant is at risk of suffering significant damage while the application for Judicial Review is pending, applying for an urgent injunction at the outset can be an effective way of swiftly protecting the applicant’s interim position.
The meaning of ex parte
Ex parte is Latin for " for one party". The term is often used to refer to legal proceedings that are conducted without notice to other parties affected by the proceedings. Generally, ex parte proceedings are only permitted when a party requires relief that is so exceptionally urgent that there is not enough time to inform the other party and provide it with an opportunity to respond.
When to make an ex parte application
In England and Wales it is possible to make an ex parte application where permitted by a provision of the Civil Procedure Rules, Practice Direction or court order (CPR 23.4(2)).
The court may grant an interim (or temporary) remedy on an application made without notice if the court considers that there are "good reasons" for not granting notice (CPR 25.3(1)). Typically, good reasons can be categorised as follows:
- Giving notice could defeat the purpose of the application (for example, freezing injunctions or search orders).
- The respondent is not on the court record at the time of the application (for example, applications to extend the time for serving a claim form (CPR 7.6(4)(b)), or for permission to issue an additional claim under CPR 20 (CPR 20.7(5)).
- The respondent cannot be identified by name (this may occur in intellectual property claims).
It is generally recognised that for the court to consider an application for an injunction on an ex parte basis, it must be clear that:
- Giving notice to your opponent is likely to cause injustice through delay or action that the respondent or others may take before the order can be made.
- Any damage suffered by the respondent as a result of complying with the injunction order may be compensated by the applicant's agreement to compensate for any such damage, or the risk of the respondent suffering “uncompensatable” loss is outweighed by the risk of injustice to the applicant if the order is not made.
Judicial review and ex parte applications
For life sciences businesses that wish to challenge the decisions of public bodies, such as NICE, judicial review can be a potential cause of action. Judicial review is the manner in which the courts supervise the executive by ensuring that government departments and other public bodies act lawfully and fairly in their decision-making processes.
Judicial review can take many months, by which time the applicant may have suffered significant financial, reputational or other loss. For that reason, it may be possible to seek an ex parte injunction, in order to protect the applicant’s position immediately.
Depending upon the nature of the injunction sought, if successful, the court could order a public body to do something, or refrain from doing something, pending resolution of the application for judicial review. For example:
- An injunction may prevent or postpone the publication of NICE’s decision or guidance that would be damaging to the applicant’s financial or reputational position.
- An injunction may also be helpful in defending a pharmaceutical patent holder’s market position when faced by a challenge from a potential generic entrant.
There are other factors to take into account when considering pursuing an injunction which are beyond the scope of this note.