Editing Ex parte

{{Short description|Legal decision or proceeding during which not all parties to the dispute are present}}
{{Italic title}}
{{More citations needed|date=May 2013}}

In [[law]], '''''ex parte''''' ({{IPAc-en|ɛ|k|s|_|ˈ|p|ɑr|t|eɪ|,_|-|iː}}) is a [[Latin]] term meaning literally "from/out of the party/faction<ref>''Cassell's Latin Dictionary'', Marchant, J. R. V., & Charles, Joseph F. (eds.), Revised Edition, 1928, pp. 200-201</ref> of" (name of party/faction, often omitted), thus signifying "on behalf of (name)". In [[common law]] jurisdictions, an ''ex parte'' decision is one decided by a [[judge]] without requiring all of the [[Party (law)|parties]] to the [[Legal case|dispute]] to be present. Thus, in [[English law]]<!-- Not United Kingdom law - there is no such thing --> and its derivatives, namely [[Law of Australia|Australian]], [[Law of New Zealand|New Zealand]], [[Law of Canada|Canadian]], [[Law of South Africa|South African]], [[Law of India|Indian]], and [[Law of the United States|U.S.]] [[legal doctrine]]s, ''ex parte'' means a [[legal proceeding]] brought by one party in the absence of and without representation of or notification to the other party. In [[civil law (legal system)|civil law]] countries, this would be called an ''inaudita (altera) parte'' proceeding, whereas ''ex parte'' simply refers to proceedings (or aspects of proceedings, such as expert testimony entered into evidence) submitted by or decided at the request of one of the parties, without implying the absence of other parties.

The term is also used more loosely to refer to improper unilateral contacts with a [[court]], [[arbitrator]], or represented party without notice to the other party or [[Lawyer|counsel]] for that party. The phrase was common in the titles of ''[[habeas corpus]]'' and [[judicial review]] cases until the end of the twentieth century, because those cases were originally brought by [[The Crown#In the courts|the Crown]] on behalf of the claimant. In [[Commonwealth of Nations|Commonwealth]] [[common law]] 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]], can also be ''ex parte''.<ref>Burgess John A., (1 January 1968). [https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=3091&context=ndlr "Demise of ''Res Judicata'' in ''Ex Parte'' Patent Office Practice"]. ''Notre Dame Law Review''. '''43''':2. pp. 214–226.</ref>

==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.<ref>{{cite AustLII |litigants=Aristocrat Technologies Australia Pty Ltd v Allam |court=HCA |num=3 |year=2016}} at [15] per [[Stephen Gageler|Gageler]] J.</ref>

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]], [[certiorari]] or [[mandamus]]. Thus for example the case name in the [[R v Kirby; Ex parte Boilermakers' Society of Australia|''Boilermakers' case'']] is ''R v Kirby; Ex parte Boilermakers' Society of Australia'' as the case concerned a writ of prohibition that was sought against [[Richard Kirby (arbitrator)|Kirby]], [[Edward Arthur Dunphy|Dunphy]] and [[Richard Ashburner|Ashburner]], who were judges of the [[Commonwealth Court of Conciliation and Arbitration]], on the application of the [[Australian Manufacturing Workers Union#History|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 [[Queen's Counsel|QC]] who also represented the [[Attorney-General for Australia|Commonwealth Attorney-General]].<ref>{{cite AustLII|litigants=[[R v Kirby; Ex parte Boilermakers' Society of Australia]] (Boilermakers' case)|court=HCA|num=10|year=1956|parallelcite=(1956) 94 [[Commonwealth Law Reports|CLR]] 254}}.</ref> 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 of Australia|Federal Court]] that were commenced by Wakim. Both McNally and Wakim appeared in the [[High Court of Australia|High Court]].  There was however no appearance for the first respondents in the bankruptcy cases, the judges of the Federal Court.<ref>{{cite AustLII |litigants=[[Re Wakim; Ex parte McNally]] |court=HCA |num=27 |year=1999 |parallelcite=(1999) 198 [[Commonwealth Law Reports|CLR]] 511}}</ref>

==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 Amendment to the United States Constitution|Fifth]] and [[Fourteenth Amendment to the United States Constitution|Fourteenth]] Amendments, which provide that a person shall not be deprived of any interest in liberty or property without [[due process]] 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 [[De_bene_esse#United_States|''de bene esse'']] (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]], which grants the [[National Security Agency]] permission to perform certain types of electronic surveillance, operates on a permanent ''ex parte'' basis.<ref>[https://www.washingtonpost.com/politics/secret-court-judges-upset-at-portrayal-of-collaboration-with-government/2013/06/29/ed73fb68-e01b-11e2-b94a-452948b95ca8_story.html Secret-court judges upset at portrayal of 'collaboration' with government], ''[[The Washington Post]]'', 30 June 2013. Retrieved 30 June 2013.</ref> 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.<ref>[https://www.leahy.senate.gov/imo/media/doc/Honorable%20Patrick%20J%20Leahy.pdf Response of the Honorable Reggie B. Walton of the Foreign Intelligence Surveillance Court to Senator Patrick Leahy, July 29, 2013.]</ref> This is as directed by statute.<ref>See for example [https://www.law.cornell.edu/uscode/text/50/1805 50 U.S.C. 1805]</ref> 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.<ref>{{Cite web|url=http://www.ohiolegalservices.org/public/legal_problem/domestic-violence/domestic-violence/civil-protection-order-remedies-and-procedures/qandact_view|title=Civil Protection Order Remedies and Procedures — public|archive-url=https://web.archive.org/web/20161102003202/http://www.ohiolegalservices.org/public/legal_problem/domestic-violence/domestic-violence/civil-protection-order-remedies-and-procedures/qandact_view|archive-date=2 November 2016}}</ref>  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.<ref name="wrecking">{{cite web|last1=Stark|first1=Debra|last2=Choplin|first2=Jessica|title=Seeing the Wrecking Ball in Motion: Ex Parte Protection Orders and the Realities of Domestic Violence|url=https://repository.jmls.edu/cgi/viewcontent.cgi?article=1672&context=facpubs|date=2017|work=[[University of Wisconsin Law School|Wisconsin Journal of Law, Gender & Society]]|publisher=[[University of Wisconsin Law School]]|access-date=22 November 2018}}</ref>

The phrase has also traditionally been used in the captions of petitions for the [[writ]] of ''[[habeas corpus]]'', which were (and in some jurisdictions, still are) styled as "''Ex parte'' Doe," where [[John Doe|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]] 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.<ref>[http://www.courts.ca.gov/rules.htm See California Rule of Court 3.1200, ''et seq'']</ref>  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.<ref>[http://www.courts.ca.gov/rules.htm See California Rule of Court 3.1213, ''Rule 3.1203. Time of notice to other parties.'']</ref> 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.<ref>California Rules of Court, Rule 3.1204</ref> 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".<ref>California Rules of Court, Rule 3.1202</ref>

== United Kingdom ==
Before the [[Woolf Reforms]], [[Judicial review in English law|judicial reviews]] in England were cited ''Regina v [The Public Body] ex parte [Person]'', 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 [Person]) v [The Public Body]''.

==See also==
*''[[Ex parte Endo]]''
*''[[Ex parte Merryman]]''
*''[[Ex parte Milligan]]''
*''[[Ex parte Quirin]]''
*[[Inter partes]]
*[[Injunction#Temporary restraints|Temporary injunction]]
*''[[R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet]]''
*''[[R v Burgess; Ex parte Henry]]''
*''[[R v Commonwealth Court of Conciliation and Arbitration; Ex parte BHP]]''
*''[[R v Department of Trade and Industry, ex parte Broadcasting, Entertainment, Cinematographic and Theatre Union]]''
*''[[R. v. North and East Devon Health Authority, ex parte Coughlan]]''

== References ==
{{reflist|30em|refs=}}

== External links ==
* {{wiktionary-inline}}

[[Category:Latin legal terminology]]
[[Category:Civil procedure]]