UK: The Case Of Tobias V Tobias [2017] - Freezing Injunctions, Without Notice Orders And Applications To The Out-Of-Hours Judge

Last Updated: 12 September 2017
Article by Sarah Campbell

On 29 June 2017,  a Judgment was given in the case of Tobias v Tobias ([2017] EWFC 46) which gave guidance in relation to freezing injunctions, without notice orders and applications made to the out-of-hours Judge – all of which are explained further below.

The background to the case is that there was a property owned in the wife's sole name which the parties previously resided in as the former matrimonial home. At the time of the Judgment the wife was still living in that property but the husband was living in a care home.

The husband had a Home Rights Notice registered upon the property. By way of explanation, a Home Rights Notice can be entered against the property title by a Husband, Wife or Civil Partner in respect of a property that is or was the family home. A notice can only be registered against 1 property at any one time.  If the notice is registered, it puts others on notice of that person's interest (including a right of that person to occupation of the property). It serves as a protection for the non-owner spouse. Despite a Home Rights Notice being registered it does not however determine the beneficial interests in the property.

The property  in this case also had charges upon the property title – meaning that monies that had been borrowed had been registered (by way of mortgages/legal charges) against the property.  The Local Authority also had a legal charge on the property in relation to unpaid council tax.

The husband in this case sought a freezing Order in relation to the property on an ex-parte basis (meaning that it was sought without prior notice to the wife). The freezing Order, if an application had have been successful, would have had the effect of preventing the wife from disposing of/dealing with the property pending the resolution of the case.

The husband also sought to make the application not only on an ex-parte basis but he also made the application to the out-of-hours High Court Judge.  An application for an out-of-hours Judge to deal with a case would only be in appropriate circumstances, e.g. if there is an urgency/an emergency.

It was said however that when making the application, the husband's statement in support was defective and he also did not make a formal application. Moreover, the Court had not received  a Divorce Petition in this matter at that time and therefore they were not able to deal with the application at that stage in any event.

A few weeks later, the application came in front of the Honourable Mr Justice Mostyn whereby at the hearing, the wife was present and was legally represented and the husband "attended" the hearing via telephone and he acted in person (i.e. without legal representation).

Mr Justice Mostyn  took some time to set out some principles in this area, including as follows:

  • The Family Court has jurisdiction (power) to deal with this type of application and he went onto say that "it is impossible to conceive of any circumstances where an application for a freezing order should be heard in the High Court, rather than the Family Court".
  • In relation to what level of Judge could hear this type of application – a District Judge, Circuit Judge or a High Court Judge could hear this type of application (an application for a freezing Order).
  • In relation to the latter level of Judge, they would only hear the application in certain circumstances: "if the application for a freezing injunction seeks to freeze assets in excess of   £15 million, then it would be appropriate to approach a High Court judge.  If the application is to freeze assets in excess of £7.5 million, and it is accompanied by the factors of complexity ...then it would be appropriate to approach a High Court judge.  However, if the assets which are sought to be frozen do not, on any view, exceed £7.5 million, then it would only be appropriate to approach a High Court judge if the application involves a novel and important point of law". 
  • Mr Justice Mostyn also reminded practitioners of the guidance in the case of L v K [2014] Fam 35 and the President's Guidance of 18th January 2017 in relation to ex parte (without notice) order applications; with him confirming that "In paragraph 7 of that guidance, the President stated 'I remind all practitioners and judges of the principle which applies to all ex parte injunctive orders made by the Family Court or by the Family Division, irrespective of the subject matter of the proceedings or the terms of the order, that a without notice application will normally be appropriate only if: (a) there is an emergency or other great urgency so that it is impossible to give any notice, however short or informal, or (b) there is a real risk that, if alerted to what is proposed, if tipped off, the respondent will take steps in advance of the hearing to thwart the court's order or otherwise to defeat the ends of justice'".

Here, the application was not to be dealt with ex-parte (without notice to the wife). In addition, not only was it held that the application should not be determined ex parte (without notice to the wife), in the circumstances, Mr Justice Mostyn also confirmed that the husband did not have grounds to make this application to the out-of-hours Judge. He went onto state that "I find it virtually impossible to conceive of any circumstances in any money case where it would be appropriate to approach the emergency out-of-hours judge for an injunction. I suppose that, if it could be said that there was strong evidence that a vast sum of money was just about to leave the jurisdiction and disappear to some king of safe haven or if there was strong evidence that a contract was about to be signed, that there might be justification for approaching the emergency out-of-hours judge but it would need a drama of that magnitude to justify it."

This case therefore serves as an important reminder of when – and when not – an application for a freezing Order should be made ex parte (without notice) to the other party and it confirms that it is conceived that it would only be in extremely rare circumstances that it would be appropriate for an application to be made in this type of matter to the out-of-hours Judge. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.