Husband prevented from pursuing appeal until he complies with costs order

Family Law|October 2nd 2018

We have seen ‘Hadkinson’ orders (which are named after a 1952 case Hadkinson v Hadkinson) here before. As explained in this post, they are orders that prohibit a party from taking any further court action until they comply with an earlier order of the court. In other words, they say that a party who has failed to comply with an order of the court cannot expect the court to then make an order sought by that party. It makes sense: if you don’t comply with court orders (and are therefore in contempt of court), why should you then have the advantage of the court making an order in your favour?

The latest example of a Hadkinson order was made by the Court of Appeal in the case De Gafforj (Appeal: Hadkinson Order).

The facts in the case were that the parties were both French, but their children have for some years been educated in England, where the wife now has a home. The husband remains in France.

In 2016 the wife issued a divorce petition in England. Six weeks later the husband issued divorce proceedings in France, and he then applied for the English proceedings to be stayed, on the basis that the English court did not have jurisdiction, because the wife had not been resident in England for the requisite period of one year before issuing the divorce. The English court held that she had been so resident and that it did, therefore, have jurisdiction. The husband appealed against this decision.

Meanwhile, the wife had sought financial orders. I will not go into the details, but the court ordered the husband to pay to the wife maintenance pending suit, costs, and a legal services payment order (i.e. to cover the wife’s future legal costs). The husband paid some of the maintenance but did not pay the costs or the legal services payment order. The wife applied for a Hadkinson order, dismissing the husband’s appeal unless he paid what he owed, which came to some £165,000 when her application was heard.

For reasons I won’t go into, the application was heard by the Court of Appeal. The husband did not attend. Giving the leading judgment Lord Justice Peter Jackson said that Hadkinson orders were exceptional (as they denied a party access to justice), and could only be made if five conditions were met:

1. That the respondent is in contempt.
2. That the contempt is deliberate and continuing.
3. That as a result, there is an impediment to the course of justice.
4. That there is no other realistic and effective remedy.
5. That the order is proportionate to the problem and goes no further than necessary to remedy it.

In relation to the first four of these conditions he found as follows:

“Is the husband in contempt? Yes, he is in breach of both orders.

Is his contempt deliberate and continuing? Yes, he has simply and silently disengaged in the midst of his own appeal.

Is there an impediment to the course of justice? Yes, compliance with the legal services payment order is essential to enable the wife to participate fairly in the husband’s appeal (if indeed he seeks to pursue it).

Is there another realistic remedy? No, the process of enforcement against the husband’s likely available assets could not remotely take place within the appeal timescale. Nothing less than the order sought has any chance of being effective.”

In relation to the fifth condition, he differentiated between the maintenance and costs orders on the one hand, and the legal services payment order on the other. The former, he said, did

“not compare to the strikingly direct impediment to the course of justice represented by the contempt in relation to the litigation services payment order”

and, particularly as the purported appeal hearing was only a few weeks away, he considered that it should be treated differently.

He said:

“Non-payment of the outstanding maintenance and costs is not an insuperable impediment to the course of justice: non-payment of the legal services payment order is.”

Accordingly, the conditions for a Hadkinson order were met. He, therefore, granted the wife’s application and made it a condition of the husband being permitted to pursue his appeal that he paid the sums outstanding under the legal services payment order together with the wife’s costs of this application, a round total of £140,000.

If that sum was not paid in full by 4 pm on the 8th of October the husband’s appeal would be dismissed, and the stay on the wife’s divorce petition would be lifted.

I have to say that a part of me is just a little concerned about this decision. Whilst I agree of course that orders should be complied with, if the husband’s appeal is successful then surely the English court had no jurisdiction to make the legal services payment order?

I realise that this would put the wife in an extremely difficult position as she would not be able to instruct lawyers to represent her on the appeal, but surely the issue of jurisdiction needs to be sorted out finally before the question of enforcement of the court’s orders is addressed?

You can read the full judgment here.

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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