De Gafforj v De Gafforj (appeal: Hadkinson order)
| Jurisdiction | England & Wales |
| Judge | PETER JACKSON,COULSON LJJ |
| Judgment Date | 20 September 2017 |
| Court | Court of Appeal (Civil Division) |
Financial remedies – Interim maintenance – Legal costs order – Failure to pay – Contempt – Impact on pending appeal – Hadkinson order – Relevant conditions for making order – Compliance with legal services payments order a condition of pursuing appeal.
The husband and wife, both French, were married in France in 2002. They had two children, who were being educated in England. In April 2016, the wife issued a divorce petition in England, having established a home in England. Six weeks later, the husband, who was still living in France, issued a petition in France. In June 2016 he applied for the wife’s English proceedings to be stayed, arguing that the wife had not been resident in England for a year at the date when the petition was issued and that the English court therefore lacked jurisdiction.
In April 2017 an English judge gave judgment in the wife’s favour, finding she had been resident, though not habitually resident, in England and Wales for a year at the date the petition was issued, and rejecting the husband’s case that mere residence could not found jurisdiction. Both the judge and the High Court refused to make a reference to the European Court of Justice but the husband was granted permission to appeal to the Court of Appeal. In the meantime, the wife challenged the judge’s finding that she had not been habitually resident in England and Wales. The appeal was due to be heard in October 2018.
Meanwhile, an English judge had ordered the husband to pay maintenance pending suit, plus costs of £8,695. The husband 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. In June 2018, the district judge increased the wife’s maintenance and made a legal services payments order of £80,099, intended to cover her debt to her former solicitors, plus an ongoing order of £12,000 pm to finance her ongoing litigation through her current solicitors. The husband was not represented at this hearing; it appeared that he had disengaged from the proceedings in about May and his solicitors later came off the record.
Although the terms of the orders were subsequently clearly communicated to the husband in both English and French, thereafter he made no payment under the June order, nor any payment in respect of the outstanding costs. The wife’s former solicitors were exercising a lien over her papers until their bill was paid, and her current solicitors could not prepare for the appeal until they were put in funds. The wife applied to the Court of Appeal for a Hadkinson order, with the aim of preventing the husband from pursuing his appeal until he had paid £165,561, made up of the sums due under the two court orders plus the wife’s costs of this application.
Held – (1) Applying Assoun v Assoun (no 1)[2017] EWCA Civ 21, a Hadkinson order was a draconian case management order of last resort in substantive proceedings rather than a species of penalty or remedy; it was not a species of ‘enforcement by the back door’. It could be made at any stage of proceedings, both at first instance and on appeal, where a litigant was in wilful contempt. It was not a commonplace but an exceptional order. The necessary conditions for the making of a Hadkinson order were: (1) that the respondent was in contempt; (2) that the contempt was deliberate and continuing; (3) that as a result there was an impediment to the course of justice; (4) that there was no other realistic and effective remedy; and (5) that the order was proportionate to the problem and went no further than necessary to remedy it. Applying Mubarak v Mubarik[2006] EWHC 1260 (Fam), non-payment in breach of a maintenance order was in itself a contempt of court, regardless of ability to pay; and questions of ability to pay came into play when the court decided whether and how to act on the contempt. Applying Laing v Laing[2005] EWHC 3152 (Fam), impeding the course of justice was likely to involve ‘making it more difficult for the court to ascertain the truth or to enforce the orders it makes’. A Hadkinson order would not be made if the court had other powers that could be effectively deployed and was flexible; the form of the order would be tailored to the needs of the case. What was important was that the sanction was no stronger than it needed to be to remove the...
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