Antonia Felix, Krishma Sangani and Natasha Methven of Mishcon de Reya LLP (instructing Lily Mottahedan of Counsel) were recently involved in a helpful Part III decision by Peel J that had been published – AT v NT [2025] EWFC 456. The judgment gives guidance on applications for permission to bring an application under Part III being listed on notice "absent some exceptional reason meriting a without notice determination", and sets out the injunctive provisions available under Part III.
The parties divorced in Russia in 2019 after reaching a financial agreement in England in 2018. As part of the financial agreement, they agreed to sell their central London property and the wife (W) was to receive £2 million or 40% of the sale proceeds, a lump sum of $1 million and 20% of trust assets, which was anticipated to provide her with between $8 million and $20 million. She was also to receive substantial maintenance.
The agreement was only partly implemented – W has not received her entitlement to a share of the trust assets, nor 40% of the central London property. She has only received $50,0000 of the lump sum. Further, the husband (H) had ceased his spousal maintenance payments. W was evicted from the family home in June 2025 after the property was repossessed following years of litigation to recover trust assets allegedly misappropriated by the trustee of an offshore family settlement. The trustee was in jail for fraud. She moved to H's solely owned property in London but had limited financial security.
W therefore issued her without notice application for permission to make a Part III application in August 2025, and also sought an order under section 46 of the Land Registration Act 2002 that a restriction be entered against the title of the property in London occupied by W but owned by H, as she feared that if the application was made on notice, she would be evicted from the property by H with her son.
At the without notice hearing, an order was made for the restriction to be registered and Peel J listed a subsequent on notice hearing to deal with the substantive permission application.
In his judgment, Peel J said he had misgivings about hearing the case on a without notice basis. He noted that, in his capacity as National Lead Judge of the Financial Remedies Court, he has encouraged judges and court offices to list Part III leave applications on notice to the respondent. He considered the leave application should be listed on notice absent some exceptional reason meriting a without notice determination.
There are two examples of exceptional reasons set out by the Supreme Court in Potanina v Potanin [2024] UKSC 3. The first is where the judge considering the application on paper decides that it is so unmeritorious that it can be dismissed without notice so as to avoid the respondent being put to the trouble and expense of being served. The other is where it is difficult or impracticable to give notice to the respondent, and it is thought preferable to consider the application and then attempt to serve, but such examples are likely to be few and far between.
Peel J considered W has a credible case for leave to be granted, but it needs to be dealt with on notice. If an applicant is concerned about preserving an asset, they must seek relief other than under 2.23 of the Matrimonial and Family Proceedings Act 1994 (the 1984 Act). He highlighted there is an "important distinction" between a section 23 application which can only be made "where leave is granted" and an application under section 37 of the Matrimonial Causes Act 1973 (the 1973 Act) which may be made "where proceedings for financial relief are brought by one person against the other", which enables the court to make the order at the point of issue.
The key takeaways from the judgment are:
- An application for an injunction under section 23 of the 1984 Act (which is equivalent to section 37 of the 1973 Act - i.e. where the other party will likely defeat the claim for financial relief such as by a disposition) can only be made if and when leave is granted.
- If an applicant considers that a protective order needs to be sought between the on notice application for leave being made, and leave being granted, he/she must seek relief other than under section 23, such as an application for a freezing order, or an application in respect of tangible property, as well as a Land Registry restriction. Such an application may exceptionally be brought without notice provided that it complies with the usual safeguards and requirements set out in UL v BK [2013] EWHC 1735 (Fam).