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De Gafforj (Appeal - Hadkinson Order) [2018] EWCA Civ 2070

Appeal concerning the wife (‘W’)’s application for a Hadkinson order against the husband (‘H’) - she sought to prevent H from pursuing an appeal in the divorce proceedings on the basis that H was in contempt of court for failing to comply with orders for maintenance pending suit, costs and legal services payments.

The Wife ('W') and the Husband ('H'), both French nationals, married in France in 2002. They had two children who had been educated in England for some time. At the time of the hearing W had a home in England while H remained in France.

W petitioned for divorce in England in April 2016. H petitioned for divorce in France six weeks later and applied for a stay of the English proceedings in June 2016 contending that the English Court lacked jurisdiction because W had not been resident in England for a year at the date when the petition was issued (Art. 3 Brussels IIa).

The matter was tried by DJ Hudd in April 2017 who gave judgment in W's favour, finding that she had been resident in England and Wales for a year when her petition was issued. DJ Hudd rejected H's case that W would have to be habitually resident (and not just resident) in order to found jurisdiction and refused to make a reference to the CJEU. H was given permission to appeal in relation to the judge's interpretation of the 5th indent of Art. 3 Brussels IIa. 

In October 2017 Baker J granted H permission to appeal from the refusal to make a CJEU reference and transferred the appeal to the High Court. The appeal was scheduled to be heard at the end of October 2018.

In November 2017, H was ordered to pay W maintenance pending suit and costs of £8,695. He paid maintenance until April 2018 but did not pay any of the costs. In June 2018, W's maintenance was increased and a legal services payments order was made against H under s.22ZA MCA 1973 for £80,099 (covering W's debt to her former solicitors) and ongoing payments of £12,000 pm (to finance W's ongoing litigation costs). H made no payment under this order. He seemed to have disengaged from the proceedings in May 2018.

W applied for a Hadkinson order in August 2018 seeking a dismissal of H's appeal unless he paid the sums due under the November 2017 and June 2018 orders, plus the costs of W's application.

Held, granting W's application:

Lord Justice Peter Jackson

A Hadkinson 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 common place. (…) it is a case management order of last resort in substantive proceedings where a litigant is in willful contempt rather than a species of penalty or remedy in committal proceedings for contempt." (citing Sir Ernest Ryder in Assoun v Assoun no. 1 [2017] EWCA Civ 21, at [3]). [9].
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A Hadkinson order can be made at any stage of the proceedings, both at first instance and on appeal. [10]

The following conditions are necessary before a Hadkinson order can be made [11]:

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

As to the first and second conditions, non-payment in breach of a maintenance order is in itself a contempt of court, regardless of ability to pay. Questions of ability to pay come into play when the court decides whether and how to act on the contempt (citing in approval Bodey J in Mubarak v. Mubarik [2006] EWHC 1260 (Fam) [65-66]). [12]?

As to the third condition, impeding the course of justice is likely to include "making it more difficult for the court to ascertain the truth or to enforce the orders it makes" (citing Sir Mark Potter P in Laing v Laing [2005] EWHC (Fam) at [18]). [13]

As to the fourth condition, a Hadkinson order will not be made if the court has other powers that can be effectively deployed. [14]

A Hadkinson order is a flexible one with a range of possible sanctions. The form of the order will be tailored to the needs of the case. What is important is that the sanction is no stronger than it need be to remove the impediment to justice. [15]

This was a plain case in which all the essential criteria for a Hadkinson order were met [16-17]:

1. The husband was in contempt of both orders;
2. The contempt was deliberate and continuing, H having disengaged in the midst of his own appeal;
3. There was an impediment to the course of justice in that compliance with the legal services payment order was essential to enable W to participate fairly in H's appeal. However, non-payment of the outstanding maintenance and costs was not an insuperable impediment to the course of justice;
4. There was no other realistic remedy. The process of enforcement against H's assets could not take place within the appeal timescale. Nothing less than a Hadkinson order had any chance of being effective. 5. A Hadkinson order would go further than necessary but only to a marginal extent.

W's application was granted in principle. H was only to be permitted to pursue his appeal in the divorce proceedings on the condition that he paid the sums outstanding under the legal services payment order and W's costs in this application by 8 October 2018. Failing this H's appeal would be dismissed without further order and the stay on W's divorce petition would be lifted. [18]

Summary by Roxane Reiser, barrister, 1 Hare Court

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Neutral Citation Number: [2018] EWCA Civ 2070
Case No: B6/2017/2855

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL FAMILY COURT
District Judge Hudd
ZC16D00085


Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20 September 2018

Before :

LORD JUSTICE PETER JACKSON

and
LORD JUSTICE COULSON
- - - - - - - - - - - - - - - - - - - - -

Between :

Anne Orenga de Gafforj
 Applicant
- and - 
Henri Orenga de Gafforj Respondent
 
De Gafforj (Appeal: Hadkinson Order) 
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Peter Newman (instructed by Kingsley Napley) for the Applicant
The Respondent
did not appear

Hearing date : 20 September 2018
- - - - - - - - - - - - - - - - - - - - -

JUDGMENT
Lord Justice Peter Jackson:

1. This is an application by Anne Orenga de Gafforj ('the wife') for an order preventing Henri Orenga de Gafforj ('the husband') from pursuing an appeal that is awaiting determination by this court at a hearing on 24/25 October 2018 on the basis that he is in contempt of court by having failed to comply with orders for maintenance pending suit, costs and a legal services payment order.  The order sought is known as a Hadkinson order after the decision in Hadkinson v Hadkinson [1952] P 285. 

2. We have today granted the wife's application.  These are my reasons for concurring in that decision.

The background
3. The circumstances leading to this unusual application need only be briefly stated.  It arises from a battle about whether the parties' divorce should take place in England or in France.  The parties, who are French, married in France in 2002.  They have two children who have for some years been educated in England, where the wife now has a home, while the husband remains in France.

4. In April 2016, the wife issued a divorce petition in England.  Six weeks later, the husband issued a petition in France and in June 2016, he applied for the English proceedings to be stayed on the basis that the English court lacked jurisdiction.  He asserted that the condition in the fifth indent of Article 3 of the Council Regulation 2201/2003 was not met because the wife had not been resident in England for a year at the date when the petition was issued.  That issue was tried by DJ Hudd at the Central Family Court.  In April 2017, she gave judgment in favour of the wife, finding that she had been resident (though not habitually resident) in England and Wales for a year at the date the petition was issued.  She rejected the husband's case that the wife would have to be habitually resident (and not just resident) in order to found jurisdiction, and she refused to make a reference to the European Court of Justice.  She subsequently gave permission to appeal to the husband in relation to her interpretation of the fifth indent.  When the matter came before Baker J in October 2017, he also granted permission to appeal from the refusal to make a CJEU reference and he transferred the appeal to this Court, there being conflicting dicta on the residence/habitual residence question at High Court level.  For her part, the wife has filed a respondent's notice challenging the district judge's finding that (were it material) she had not also been habitually resident in England and Wales.

5. So it was that the appeal was lined up for hearing next month with the parties having been represented by specialist solicitors and leading and junior counsel.

Events leading to this application
6. In the meantime, the wife had sought financial orders.  On 6 November 2017, the husband was ordered to pay maintenance, pending suit and costs of £8695.  He paid the maintenance up to April 2018 but did not pay the costs. The wife then applied for an increase in maintenance and for a legal services payments order under s.22ZA Matrimonial Causes Act 1973.  On 25 June 2018, the district judge increased the wife's maintenance and made a legal services payments order of £80,099 to cover her debt to her former solicitors, and an ongoing order of £12,000 pm to finance her ongoing litigation through her current solicitors, Kingsley Napley.  At the hearing the wife was represented but the husband was not.  It seems that he had disengaged from the proceedings in around May.  His solicitors, Charles Russell Speechlys, had for some time been without instructions and earlier this month they finally came off the record. 

7. The husband has made no payment under the June order, nor has he paid the costs from the November order.  The terms of the orders have been clearly communicated to him in English and in French, but he has ignored them.  The wife unsurprisingly complains that this has caused her significant difficulties.  She is dependent upon the maintenance for her living expenses, and for the legal services payment order for her litigation.  Her former solicitors are exercising a lien over her papers until their bill is paid and her current solicitors cannot prepare for the appeal without being put in funds.  Accordingly, on 14 August the wife issued the present application.  On 6 September I ordered that the husband, if he opposed the application, was to file submissions in response by 14 September and that the matter be heard today with both parties attending, whether or not they were represented.  That order was duly served on the husband, but he has neither responded nor attended this hearing. 

8. The wife's application has been presented by Mr Peter Newman, who seeks the dismissal of the husband's appeal unless he now pays £165,561, calculated as follows:

November costs order

 8,695

Outstanding maintenance

 16,332

Legal services payment order

128,099

Costs of this application

 12,435

 

________

 

£165,561 

Hadkinson orders
9. The nature of the Hadkinson order was described in this way by Sir Ernest Ryder in Assoun v Assoun [No 1] [2017] EWCA Civ 21 at [3]:

"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.  As developed in case law, it is a case management order of last resort in substantive proceedings (for example for a financial remedy order) where a litigant is in wilful contempt rather than a species of penalty or remedy in committal proceedings for contempt."

To this I would add that it is not a species of what has been described in one of the cases as 'enforcement by the back door'.

10. An order of this kind can be made at any stage of proceedings, both at first instance and on appeal.  Its history and modern development is set out in the judgment of Eleanor King J in C v C (Appeal: Hadkinson Order) [2011] 1 FLR 434 at [27]-[41]. 

11. For present purposes, it is enough to note the exceptional nature of the order and to record the conditions that are necessary before it can be made.  I would summarise these as follows:

1. The respondent is in contempt.

2. The contempt is deliberate and continuing. 

3. As a result, there is an impediment to the course of justice.

4. There is no other realistic and effective remedy.

5. The order is proportionate to the problem and goes no further than necessary to remedy it.

12. As to the first and second of these conditions, in Mubarak v Mubarik [2006] EWHC 1260 (Fam) at [65] it was held by Bodey J that non-payment in breach of a maintenance order is in itself a contempt of court, regardless of ability to pay, and at [66] that questions of ability to pay come into play when the court decides whether and how to act on the contempt.  I agree with both propositions.

13. As to the third condition, it is not necessary to limit by further definition what it means to impede the course of justice, but it is likely to include what Sir Mark Potter P described in Laing v Laing [2005] EWHC (Fam) at [18] as 'making it more difficult for the court to ascertain the truth or to enforce the orders it makes'.

14. The fourth condition underscores the obvious point that a Hadkinson order will not be made if the court has other powers that can be effectively deployed. 

15. Lastly, a Hadkinson order is a flexible one with a range of possible sanctions.  In C v C the court required a lump sum to be brought onshore as a condition for an appeal continuing, failing which it was to be dismissed.  In Mubarak, the husband was required to give instructions to trustees and to make legal services payments if he was to continue to be heard in financial remedy proceedings.  In Laing, the husband was required to make good arrears of maintenance before his application to vary was heard.  In Hadkinson itself, the Court of Appeal refused to hear a mother's appeal until she had returned a child to England.  The form of order will be tailored to the needs of the case.  What is important is that the sanction is no stronger than it need be to remove the impediment to justice.

Application in this case

16. In my view, this is a plain case in which all the essential criteria for a Hadkinson order are met.  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.

17. Does the order sought by the wife go further than necessary?  Yes, but only to a marginal extent.  I would differentiate between the unpaid costs and maintenance on the one hand and the unpaid legal services payments on the other.  The latter impacts in the most direct way possible upon the course of justice; the position of the former is less clear.  I am far from dismissing the wife's concerns about the effect upon her everyday life of the abrupt and arbitrary removal of her income stream, and the knock-on effect on her ability to participate in the proceedings, and I would not want to be understood as saying that there are no circumstances in which such a contempt could found an order of this kind; but in this case it does 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 is only a few weeks away, I consider that it should be treated differently.  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.

18. What order should this court then make?  I would grant the wife's application in principle and make it a condition of the husband being permitted to pursue his appeal that he now pays the sums outstanding under the legal services payment order together with the wife's costs of this application, which for convenience will be summarily assessed at £11,901, making a round total of £140,000.  Payment of that sum must be made in full by 4 pm on Monday 8 October 2018, failing which the husband's appeal shall be dismissed without further order and the stay that currently applies to the wife's divorce petition shall be lifted.  Finally, our order provides for the immediate service upon the husband of the order and this judgment in the original and in translation.

Lord Justice Coulson:

19. I agree.

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