05/02/2020 Galloway v Frazer & Ors [2016] NIQB 7 (27 January 2016) By its nature, an ex parte order is essentially a provisional order made by the judge on the basis of evidence and submissions emanating from one side only and there is therefore no basis for making a definite order and accordingly when the judge reviews his provisional order in the light of the evidence and argument adduced by the opposite party, he is not hearing an appeal from himself and is in no way inhibited from discharging or varying the original order …." (iv) Valentine on Civil Proceedings in the Supreme Court at 11.2 states that: "The Applicant can appeal against refusal as with any interlocutory order, but the Respondent should apply to set it aside rather than appeal … On such applications the court has the advantage of hearing both parties and can freely review the order". (v) The Supreme Court Practice Volume 1 at 11/4/16 states: "… The application (under Order 12 Rule 4 to set aside the grant of permission to the Writ outside the jurisdiction) is decided on the affidavit evidence of the parties, and the issue is whether, upon the whole of the evidence, the plaintiff shows a good arguable case within one of the sub-paragraphs of Rule 1(1) or in the Court's discretion the Order will not be made or to stand, whether the Writ or Notice was wrongly issued or the service is irregular, so that on those or other grounds the Order, Writ or service ought to be set aside …. When leave to serve out of the jurisdiction is properly given, it cannot be discharged simply because the circumstances have changed, unless further evidence throws a new light on what should have been a relevant consideration at the time leave was granted (ISC Technologies v Guerin [1992] 2 Lloyd's Rep 430)." [52] In ISC Technologies v Guerin Hoffmann J rejected the submission that an application under Order 12 rule 8 was a rehearing of the application to the Master on the exercise of a fresh discretion. He said at page 434: "The application is under RSC Order 12 Rule 8(1)(c) to discharge the Master's order giving leave to serve out. The question is therefore whether the order was rightly made at the time it was made. Of course the court can receive evidence which was not before the Master and subsequent events may throw light upon what should have been relevant considerations at the time. But I do not think that leave which was likely given should be discharged because circumstances have changed. That would mean that different answers could be given depending upon how long it took before the application came on to be heard." He went on to emphasise that the onus in an application to set aside remains on the plaintiff to establish that (Northern Ireland) is the: "appropriate forum and the test has to be applied by reference to the same date, i.e. the date on which the order granting leave was made." [53] Thus it is clear that while new evidence can be adduced at an inter partes hearing, it can only be done so insofar as it "may throw light upon what should have been a relevant consideration at the time". It is not permissible to rely on changed or new circumstances from the date of the original grant file:///Users/nerissa/Downloads/Columbia CSV/Galloway v Frazer & Ors [2016] NIQB 7 (27 January 2016).htm 15/26