I believe I may have previously written a post here on this subject, but I can’t locate it. However, even if I have, I make no apologies for repeating myself, as this is an important point that all litigants should bear in mind.
When I was practising it was a sad fact that court orders, whether made in the course of proceedings such as to file evidence with the court, or final orders such as to pay money to the other party, were routinely disobeyed. Whether that situation has altered much in the last eight years I don’t know. In 2014 The President of the Family Division Sir James Munby made it clear that from then on family courts would not just expect but demand compliance with orders, although whether that has made much difference I rather doubt. In particular, the rise of the unrepresented litigant may, I suspect, have made non-compliance even more commonplace.
Now obviously there are likely to be consequences for non-compliance with court orders, even if the courts are rather more lenient than many would hope. The consequences normally take the form of penalties or enforcement action, but there is also a slightly less obvious consequence: what if the recalcitrant party then asks the court for something themselves? Is it reasonable to expect a sympathetic hearing of your own application if you are yourself in breach of a previous order of the court?
The question arose recently in the case Assoun v Assoun [No 1], in which a husband sought to reduce a maintenance order, despite not having complied with that order. The case has already been mentioned here, so I’m not going to go into its details, but rather concentrate on the issue of the non-compliance and its effect upon the subsequent application by the non-complying party.
Now the first thing I should say is that in most cases failure to comply with a maintenance order will not preclude that party from applying for a downward variation of the order. In fact, it was my experience that in the vast majority of such applications the applicant had already stopped paying the order, or at least the full amount of the order. It’s really a question of degree and intent. After all, if you are making a genuine application to reduce a maintenance order because you really can’t afford to pay it anymore, then it will not be unexpected that you haven’t been paying the full amount of the order prior to the hearing of your application. On the other hand, if you have been making no attempt to pay anything when you can clearly pay something, then the court is not going to look so favourably upon you.
The second thing to say is that what the court did in Assoun was quite unusual. It made what is known as a ‘Hadkinson Order’, which is an order saying that the applicant cannot proceed with his application at all until he complies with the earlier order. As Sir Ernest Ryder said in Assoun:
“Such an order is draconian in its effect because it goes directly to a litigant’s right of access to a court. It is not and should not be a commonplace … it is a case management order of last resort … where a litigant is in wilful contempt”
In Assoun the court found that the husband had not just failed to pay the maintenance order whilst he had the means to pay, he had wilfully disobeyed other orders of the court, in particular he had failed to give full and frank disclosure of his means, and he had “used every tactical device that he could to frustrate the wife and the English courts”. Sir Ernest Ryder found that given the husband’s “abject and continuing failure to abide by the principles upon which the court’s procedural rules are founded and his actual knowledge of the risk he took”, there were insufficient grounds to establish a procedural irregularity in the process that led to the Hadkinson Order. The Court of Appeal was not therefore prepared to allow Mr Assoun’s appeal against the Hadkinson order.
OK, so Hadkinson orders are rarely seen. That does not, however, mean that just because the court is prepared to entertain most applications made by parties who have not complied with earlier orders the court is necessarily going to be sympathetic towards the applicant. As I said above, it is a question of degree and intent. If the court considers that there is no good reason for the non-compliance (other than to thwart the will of the court) then it is obviously far less likely that the court will give favourable consideration to the application.
It’s really just a question of common sense, but it is a point that is somehow missed by many litigants who seem to consider that court orders are only to be complied with by the other party, not themselves – it is notable that Mr Assoun, whilst showing a “careless disregard” for the court’s orders himself nevertheless was determined to ensure that the wife “complied to the letter with orders made against her”.
The moral is clear: It’s not one law for them and one law for you. If you expect the court to treat you well, then you must also comply with its orders.