A claimant seeks an urgent interim injunction to prevent the defendant from disposing of assets pending trial in a High Court fraud claim. The claimant's solicitor believes there is evidence that the defendant has been transferring funds to offshore accounts. The trial is scheduled in six months. The claimant's solicitor prepares an application and supporting witness statement but is uncertain whether to apply without notice (ex parte) or on notice to the defendant. The defendant's solicitor has been cooperative in correspondence to date and has not indicated any intention to dissipate assets. However, the claimant fears that giving notice will prompt the defendant to accelerate asset transfers. Which of the following best describes the correct approach to determining whether to apply without notice?
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AApply without notice whenever the claimant has a reasonable suspicion of asset dissipation, even without specific evidence, as the purpose of freezing injunctions is to prevent potential future dissipation.
BApply on notice in all cases where the defendant's solicitor has been cooperative, as without-notice applications are only permitted when the defendant is unrepresented or uncooperative in correspondence.
CApply without notice only if there is real risk that giving notice would defeat the injunction's purpose, supported by evidence.
DApply on notice because the trial is scheduled within six months, and without-notice applications are only appropriate when there is no fixed trial date and immediate irreparable harm.
✓ Correct answer: C. Apply without notice only if there is real risk that giving notice would defeat the injunction's purpose, supported by evidence.Applications without notice should only be made in exceptional circumstances where giving notice would enable the defendant to take steps to defeat the purpose of the injunction, such as dissipating assets. The applicant must provide evidence of this risk, not mere speculation or fear. The duty of full and fair disclosure is heightened in without-notice applications. The court will scrutinize the decision not to give notice. Simply fearing that the defendant might act is insufficient; there must be a real and immediate risk supported by evidence (e.g., evidence of ongoing transfers, previous asset dissipation, or specific threats). The defendant's prior cooperation in correspondence does not automatically preclude a without-notice application, but it is a relevant factor. The other options either set the threshold too low (mere fear or suspicion) or too high (requiring proof of actual ongoing dissipation or automatic notice in all cases of cooperation).
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