How to make the justice system work for your client

It's every matrimonial solicitor's nightmare: you've just sat down to a day's work when a client - we'll call her Jane Brown - arrives at your office without an appointment and tells you that her partner has threatened her. She's plainly terrified. What should you do?

Since the Legal Aid, Sentencing and Punishment of Offenders Act 2012, Ms Brown is unlikely to be able to obtain legal aid: threats may not suffice to make her eligible and the evidence required by the Legal Aid Agency is difficult to obtain quickly. If Ms Brown can't afford to pay your firm, you'll have to direct her to the local family court - of which more anon.

But let's suppose that Ms Brown can afford to pay. You'll probably advise her to apply for a non-molestation order and perhaps an occupation order, pursuant to the Family Law Act 1996.

How to apply poses a more difficult question. The courts are less inclined to grant orders ex parte than they used to be. Recent cases in the High Court have reminded the judiciary that it is contrary to natural justice to grant an order without giving the respondent notice unless the application is too urgent to await a proper hearing or giving notice would defeat its purpose.

Application without notice

In Ms Brown's case, you decide that the danger justifies an ex parte application. Your instinct is to rush to your nearest court. If you haven't done this in a while, you're in for a shock: you'll find the counter closed.

If yours is not the principal court in the area, most of the experienced staff will have been moved elsewhere; there may not even be a judge sitting.

If you can find someone to speak to, you’ll probably be told you need to telephone for an appointment. You telephone: no one answers. By now, you’re desperate. You spy an usher and seize his robe. You exert all your powers of persuasion and – lo – are brought before a district judge.

The first question he asks is: 'Have you given informal notice?' This is an application without notice; doesn't he understand? With weary resignation, he hands you the Family Court Practice, open at the Family Procedure Rules 2010, practice direction 20A: informal notice (for example, by telephone, SMS, or e-mail) is now required, unless there is some good reason why it should not be given. The same practice direction also, in most cases, requires an undertaking in damages.

The judge puts the case back so that you can contact the respondent. You telephone him and receive a volley of abuse. You return before the judge, who grants the injunction and asks you whether an inter partes hearing should be fixed. Your client does not relish the idea of another visit to court. Can you persuade the judge that a further hearing is unnecessary?

Section 45(3) requires the court to give the respondent ‘an opportunity to make representations as soon as just and convenient at a full hearing’. It is worth arguing that fixing a date without reference to the respondent may not give him that opportunity and may waste time and money: the respondent may be abroad or unable to take time off work, and allowing him to apply for a hearing, by letter and without paying a fee, would better meet the statutory objective. If the judge wants authority for this approach, you might cite paragraph 4 of Re F [2005] EWCA Civ 499.

Rule of law

It's 4pm. You've arranged personal service of Ms Brown's order and can confront the rest of your day's work.

It's 7pm when, exhausted, you finally head home. On the train, you read Mr Gove's first speech as minister of justice: 'I am here,' he begins, 'to talk about how we make the justice system work for everyone in this country… The rule of law is the most precious asset of any civilised society. It is the rule of law which… protects family life and personal relations from coercion and aggression.'

The sooner the rule of law can be made to work for Jane Brown, you reflect, the better. SJ

District Judge Adam Taylor sits at Horsham County Court