Liberty to apply
The words ‘Liberty to apply’ are conventionally included in an order.
They simply envisage that the parties may need to come back to the court to resolve any difficulties over the
interpretation of the order in the light of circumstances which may occur on putting it into effect, for example if,
when the house is sold, there is a dispute over which/how many estate agents to use.
They do not in any way affect the court’s power to vary an order and the restrictions on that power
Many orders contain a clause that gives the parties ‘liberty to apply’.
This does not allow the parties to return to court to vary the order.
Instead, it gives the parties the opportunity to return to court if they experience trouble implementing the order,
for example, due to conveyancing difficulties or misunderstanding of minor terms where property is settled.
Under a ‘liberty to apply’ clause, the court could select a different method of achieving the stated objective
provided that the end result was, as far as practicable, the same as the original order. If the end result was more
favourable to one of the parties, then this was a variation and not permitted.
Emergency applications and liberty to apply:
(s 45)
In urgent cases, it may be possible for the solicitor to protect an applicant or a child on the same day that they
come to see the solicitor, or at least on the next day.
Under s 45, the court can make both non-molestation and occupation orders without notice to the respondent (or
‘ex parte’) where it considers that it is ‘just and convenient’ to do so.
In deciding whether to allow an application to proceed without notice, the court will take into account all
circumstances, including:
(a) any risk of significant harm to the applicant or child if the order is not made immediately; (b) whether it is
likely that the applicant will be deterred or prevented from pursuing the application if the order is not made
immediately; and
(c) whether there is reason to believe that the respondent is evading service and delay in effecting service will
seriously prejudice the applicant or child.
However, the courts are generally reluctant to grant orders where the respondent has been given no notice.
Therefore, where it is not possible to give the respondent the full two clear days’ notice required, the applicant’s
solicitor should consider whether to apply to abridge the notice period instead of applying without notice.
Where the respondent has been given some notice (however short), he may be able to attend court to give his
version of events. This will mean that the court will be in a better position to assess the situation.
However, if the respondent has not had an opportunity to instruct a solicitor then the court is likely to make an
interim (rather than final) order to allow the respondent time to seek legal advice before the final hearing.
Occupation orders are more rarely granted without notice, especially where they would involve ousting the
respondent from his home. It must be stressed that any order obtained without notice will be temporary only (an
interim order).
(a) A without notice injunctive order must never be made without limit of time. There must be a fixed end date.
(b) It is not sufficient merely to specify a return day. The order must specify on its face and in clear terms
precisely when it expires.
(c) The duration of the order should not normally exceed 14 days.
(d) The order must also specify the date, time and place of the hearing on the return day. It is usually convenient
for this date to coincide with the expiry date of the order.
(e) The order must contain a statement of the right to make an application to set aside or vary the order. The
phrase ‘liberty to apply on 24 hours’ notice’ is not sufficient for this purpose. The order must spell out that the
respondent is entitled, without waiting for the return day, to apply on notice to set aside or vary the order.
The words ‘Liberty to apply’ are conventionally included in an order.
They simply envisage that the parties may need to come back to the court to resolve any difficulties over the
interpretation of the order in the light of circumstances which may occur on putting it into effect, for example if,
when the house is sold, there is a dispute over which/how many estate agents to use.
They do not in any way affect the court’s power to vary an order and the restrictions on that power
Many orders contain a clause that gives the parties ‘liberty to apply’.
This does not allow the parties to return to court to vary the order.
Instead, it gives the parties the opportunity to return to court if they experience trouble implementing the order,
for example, due to conveyancing difficulties or misunderstanding of minor terms where property is settled.
Under a ‘liberty to apply’ clause, the court could select a different method of achieving the stated objective
provided that the end result was, as far as practicable, the same as the original order. If the end result was more
favourable to one of the parties, then this was a variation and not permitted.
Emergency applications and liberty to apply:
(s 45)
In urgent cases, it may be possible for the solicitor to protect an applicant or a child on the same day that they
come to see the solicitor, or at least on the next day.
Under s 45, the court can make both non-molestation and occupation orders without notice to the respondent (or
‘ex parte’) where it considers that it is ‘just and convenient’ to do so.
In deciding whether to allow an application to proceed without notice, the court will take into account all
circumstances, including:
(a) any risk of significant harm to the applicant or child if the order is not made immediately; (b) whether it is
likely that the applicant will be deterred or prevented from pursuing the application if the order is not made
immediately; and
(c) whether there is reason to believe that the respondent is evading service and delay in effecting service will
seriously prejudice the applicant or child.
However, the courts are generally reluctant to grant orders where the respondent has been given no notice.
Therefore, where it is not possible to give the respondent the full two clear days’ notice required, the applicant’s
solicitor should consider whether to apply to abridge the notice period instead of applying without notice.
Where the respondent has been given some notice (however short), he may be able to attend court to give his
version of events. This will mean that the court will be in a better position to assess the situation.
However, if the respondent has not had an opportunity to instruct a solicitor then the court is likely to make an
interim (rather than final) order to allow the respondent time to seek legal advice before the final hearing.
Occupation orders are more rarely granted without notice, especially where they would involve ousting the
respondent from his home. It must be stressed that any order obtained without notice will be temporary only (an
interim order).
(a) A without notice injunctive order must never be made without limit of time. There must be a fixed end date.
(b) It is not sufficient merely to specify a return day. The order must specify on its face and in clear terms
precisely when it expires.
(c) The duration of the order should not normally exceed 14 days.
(d) The order must also specify the date, time and place of the hearing on the return day. It is usually convenient
for this date to coincide with the expiry date of the order.
(e) The order must contain a statement of the right to make an application to set aside or vary the order. The
phrase ‘liberty to apply on 24 hours’ notice’ is not sufficient for this purpose. The order must spell out that the
respondent is entitled, without waiting for the return day, to apply on notice to set aside or vary the order.
