law Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...

, ''ex parte'' () is a

Latin Latin (, or , ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally a dialect spoken in the lower Tiber area (then known as Latium) around present-day Rome, but through ...

term meaning literally "from/out of the party/faction of" (name of party/faction, often omitted), thus signifying "on behalf of (name)". An ''ex parte'' decision is one decided by a

judge A judge is a person who presides over court proceedings, either alone or as a part of a panel of judges. A judge hears all the witnesses and any other evidence presented by the barristers or solicitors of the case, assesses the credibility an ...

without requiring all of the parties to the dispute to be present. In

English law English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. Principal elements of English law Although the common law has, historically, b ...

and its derivatives, namely

Australian Australian(s) may refer to: Australia * Australia, a country * Australians, citizens of the Commonwealth of Australia ** European Australians ** Anglo-Celtic Australians, Australians descended principally from British colonists ** Aboriginal A ...

New Zealand New Zealand ( mi, Aotearoa ) is an island country in the southwestern Pacific Ocean. It consists of two main landmasses—the North Island () and the South Island ()—and over 700 smaller islands. It is the sixth-largest island coun ...

Canadian Canadians (french: Canadiens) are people identified with the country of Canada. This connection may be residential, legal, historical or cultural. For most Canadians, many (or all) of these connections exist and are collectively the source of ...

, South African,

Indian Indian or Indians may refer to: Peoples South Asia * Indian people, people of Indian nationality, or people who have an Indian ancestor ** Non-resident Indian, a citizen of India who has temporarily emigrated to another country * South Asia ...

, and U.S.

legal doctrine A legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case. A doctrine comes about when a judge makes a ruling ...

s, ''ex parte'' means a

legal proceeding Legal proceeding is an activity that seeks to invoke the power of a tribunal in order to enforce a law. Although the term may be defined more broadly or more narrowly as circumstances require, it has been noted that " e term ''legal proceedings'' i ...

brought by one party in the absence of and without representation of or notification to the other party. The term is also used more loosely to refer to improper unilateral contacts with a

court A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in acco ...

, arbitrator, or represented party without notice to the other party or

counsel A counsel or a counsellor at law is a person who gives advice and deals with various issues, particularly in legal matters. It is a title often used interchangeably with the title of ''lawyer''. The word ''counsel'' can also mean advice given ...

for that party. The phrase was common in the titles of ''

habeas corpus ''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, ...

'' and

judicial review Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incomp ...

cases until the end of the twentieth century, because those cases were originally brought by

the Crown The Crown is the state in all its aspects within the jurisprudence of the Commonwealth realms and their subdivisions (such as the Crown Dependencies, overseas territories, provinces, or states). Legally ill-defined, the term has differ ...

on behalf of the claimant. In

Commonwealth A commonwealth is a traditional English term for a political community founded for the common good. Historically, it has been synonymous with "republic". The noun "commonwealth", meaning "public welfare, general good or advantage", dates from the ...

common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...

jurisdictions, the title typically appeared as ''R v (Defendant), ex parte (Claimant)''; in the US, this was shortened to ''Ex parte'' (Claimant). A proceeding in an executive agency to establish a right, such as

patent prosecution Patent prosecution describes the interaction between applicants and their representatives, and a patent office with regard to a patent, or an application for a patent. Broadly, patent prosecution can be split into pre-grant prosecution, which i ...

, can also be ''ex parte''.

Australia

In Australian law ex parte is used in two senses. The predominant use is to refer to an ex parte hearing, being one which is heard in the absence of one or more parties. Where proceedings are heard ex parte, a high degree of candour is required, including full and fair disclosure of facts adverse to the moving party. A failure to make such disclosure is ordinarily sufficient to warrant discharge of such order as might be made. The other use means 'on the application of' when used in the case name where prerogative relief is sought, such as a

writ of prohibition A writ of prohibition is a writ directing a subordinate to stop doing something the law prohibits. This writ is often issued by a superior court to the lower court directing it not to proceed with a case which does not fall under its jurisdict ...

certiorari In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English prerogative writ, issued by a superior court to direct that the record of ...

mandamus (; ) is a judicial remedy in the form of an order from a court to any government, subordinate court, corporation, or public authority, to do (or forbear from doing) some specific act which that body is obliged under law to do (or refrain fr ...

. Thus for example the case name in the ''Boilermakers' case'' is ''R v Kirby; Ex parte Boilermakers' Society of Australia'' as the case concerned a writ of prohibition that was sought against Kirby, Dunphy and Ashburner, who were judges of the

Commonwealth Court of Conciliation and Arbitration The Commonwealth Court of Conciliation and Arbitration was an Australian court that operated from 1904 to 1956 with jurisdiction to hear and arbitrate interstate industrial disputes, and to make awards. It also had the judicial functions of int ...

, on the application of the Boilermakers Society of Australia. While the case name is 'ex parte' it was not heard in the absence of a party, with the judges being represented by D I Menzies QC who also represented the Commonwealth Attorney-General. Similarly the case of '' Re Wakim; Ex parte McNally'' concerned application of McNally for a writ of prohibition in relation to proceedings in the Federal Court that were commenced by Wakim. Both McNally and Wakim appeared in the High Court. There was however no appearance for the first respondents in the bankruptcy cases, the judges of the Federal Court.

United States

In the United States, the availability of ''ex parte'' orders or decrees from both federal and state courts is sharply limited by the Fifth and Fourteenth Amendments, which provide that a person shall not be deprived of any interest in liberty or property without

due process Due process of law is application by state of all legal rules and principles pertaining to the case so all legal rights that are owed to the person are respected. Due process balances the power of law of the land and protects the individual per ...

of law. In practice this has been interpreted to require adequate notice of the request for judicial relief and an opportunity to be heard concerning the merits of such relief. A court order issued on the basis of an ''ex parte'' proceeding, therefore, will necessarily be temporary and interim in nature, and the person(s) affected by the order must be given an opportunity to contest the appropriateness of the order before it can be made permanent. There are exceptions to this. The secret

Foreign Intelligence Surveillance Court The United States Foreign Intelligence Surveillance Court (FISC), also called the FISA Court, is a U.S. federal court established under the Foreign Intelligence Surveillance Act of 1978 (FISA) to oversee requests for surveillance warrants aga ...

, which grants the

National Security Agency The National Security Agency (NSA) is a national-level intelligence agency of the United States Department of Defense, under the authority of the Director of National Intelligence (DNI). The NSA is responsible for global monitoring, collecti ...

permission to perform certain types of electronic surveillance, operates on a permanent ''ex parte'' basis. Parties other than the government are not normally permitted to argue in front of the court, though it is possible for the recipients of court orders to challenge them in other ways. This is as directed by statute. Most US states also allow for initial hearings regarding civil protection orders to be done ''ex'' ''parte;'' however, a second hearing is usually set a short time later to allow the alleged abuser to answer for the allegations. An article about such restraining orders, authored by Debra Stark and Jessica Choplin, indicated this concept in its title, "Seeing the Wrecking Ball in Motion: Ex Parte Protection Orders and the Realities of Domestic Violence". The idea is that ex parte orders must be used in a "wrecking ball" type of situation, where giving advance notice to a respondent would allow him or her to cause irreversible damage before the notice takes effect. Stark and Choplin argued that such damage would be possible if ex parte orders were not used for restraining orders, and that the very fact of an order being issued might increase the chance of the respondent causing damage. The phrase has also traditionally been used in the captions of petitions for the

writ In common law, a writ (Anglo-Saxon ''gewrit'', Latin ''breve'') is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court. Warrants, prerogative writs, subpoenas, a ...

of ''

'', which were (and in some jurisdictions, still are) styled as "''Ex parte'' Doe," where Doe was the name of the petitioner who was alleged to be wrongfully held. As the Supreme Court's description of nineteenth century practice in '' Ex parte Milligan'' shows, however, such proceedings were not ''ex parte'' in any significant sense. The prisoner's ''ex parte'' application sought only an order requiring the person holding the prisoner to appear before the court to justify the prisoner's detention; no order requiring the freeing of a prisoner could be given until after the jailer was given the opportunity to contest the prisoner's claims at a hearing on the merits.

State trial courts

State courts vary in their use of ex parte proceedings (for example, in custody cases,

replevin Replevin () or claim and delivery (sometimes called revendication) is a legal remedy, which enables a person to recover personal property taken wrongfully or unlawfully, and to obtain compensation for resulting losses. Etymology The word "replev ...

cases and other civil matters), though most have it in one form or another. For example, in the States of California and Illinois, ''ex parte'' proceedings are available if notice is given before 10 a.m. the previous court day, or even shorter upon showing of emergency need. As most courts in these two states hold law and motion hearings in the early morning, this notice is typically confirmed by facsimile although oral notice may be effective. Some courts in California have procedures to allow opponents to appear telephonically, while other courts do not allow any oral argument and only consider written papers. In California, the party who files an ''ex parte'' application must file a declaration showing compliance with these requirements, and no relief may be granted absent such declaration. In addition to the notice requirements, an ex parte application must contain an affirmative actual showing in a declaration based on personal knowledge of "irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte".California Rules of Court, Rule 3.1202

United Kingdom

Before the

Woolf Reforms The Civil Procedure Rules (CPR) were introduced in 1997 as per the Civil Procedure Act 1997 by the Civil Procedure Rule Committee and are the rules of civil procedure used by the Court of Appeal, High Court of Justice, and County Courts in civil ...

, judicial reviews in England were cited ''Regina v he Public Bodyex parte erson', where the person was the one actually bringing the case. The 'Regina' (or Rex if the monarch is a male) refers to the sovereign in whose name all judicial reviews are brought. This derives from the petition for writs, which were in the name of the Crown. Since the reforms, cases are now named ''Rex (on the application of erson v he Public Body'.

References

External links