Yan Wilheim Benjammin Assoun v Anais Amber Assoun [No 1]
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson |
| Judgment Date | 28 March 2017 |
| Neutral Citation | [2017] EWCA Civ 21 |
| Docket Number | Case No: B6/2015/4082 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 March 2017 |
[2017] EWCA Civ 21
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL FAMILY COURT IN LONDON
His Honour Judge Brasse
FD06D05405
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Beatson
THE SENIOR PRESIDENT OF TRIBUNALS
Case No: B6/2015/4082
Mr James Ewins QC (instructed by Stewarts Law LLP) for the Appellant
Mr Alexander Thorpe (acting Pro Bono) for the Respondent
Hearing date: 13 December 2016
Approved Judgment
Sir Ernest Ryder, Senior President:
This appeal concerns long standing financial remedy proceedings that have been heard in the Central Family Court in London. I shall refer to the appellant as the husband and the respondent as the wife although they have been divorced for some time. The order which the husband appeals was made by His Honour Judge Brasse at a First Appointment on 16 November 2015 which had been listed to give directions on the husband's application to vary down or discharge a periodical payments order made on 22 November 2013 by Judge Brasse and to remit the arrears under that order. This is a case in which the husband has not paid significant sums due to the wife in accordance with orders made by the courts of England and Wales and by the courts of the state of Texas in the United States of America. It is conceded by the husband that he is breach of the 2013 order.
This judgment has been delayed as a consequence of an application made by the husband upon receipt of the draft judgment to re-open the appeal, to amend the grounds of appeal and to rely upon additional evidence. That application was opposed by the wife and the court directed written submissions by the parties on the issues which were raised. In a separate determination, reported as Assoun v Assoun No 2 [2017] EWCA Civ 179, the court refused the husband's application and, as a consequence of the submissions of the parties, provided limited further particulars of its reasoning in paragraphs [21], [22] and [23] of this judgment.
On 16 November 2015 Judge Brasse granted a without notice application made on behalf of the wife that the husband should not be permitted to proceed with his application until he had paid to the wife his debt under the existing court order. The order made is known colloquially as a ' Hadkinson Order' ( Hadkinson v Hadkinson [1952] 2 ALL ER 567). 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.
The husband's case is that the Hadkinson order was procedurally unfair and was in any event an error of law because it was disproportionate to make such an order in circumstances where the husband's case was that he did not and does not have sufficient resources to discharge his obligations under the original court order and more proportionate conditions could have been imposed. The issue in the appeal is whether the Hadkinson principles were correctly applied to the facts of this case.
Careful attention has to be paid to the precise terms of the permission to appeal that has been granted and the conditions that were attached. At the time when the substantive hearing before this court had been completed, no application had been made to vary those conditions or to renew an application to appeal on any other grounds than those permitted.
On 19 May 2016 Gloster LJ ordered the husband to file a statement of evidence setting out his financial position. The requirements of the direction were detailed and I shall return to the implications of what the judge ordered and her reasons for the same in due course. I set out her reasons at this stage because they are important to the way the appeal developed:
"Provisionally I might be minded – although I have not yet decided – to grant permission to appeal. That is because it could be said that the applicant had not had a proper opportunity to put before the court the full evidence relating to his declining financial circumstances in a situation where it might be said that he had not had sufficient notice of the respondent's Hadkinson application. However, I would only do so on the condition that a substantial sum of money, reflecting a significant proportion of the arrears, owed to the wife under the orders of 3 July 2013 and 22 November 2013 was paid into court to await the outcome of the appeal"
On 6 June 2016 the husband filed a statement of evidence in purported compliance with this court's order. Given the fact that the evidence was directed to be filed and served as a pre-condition to the permission to appeal being granted and to the appeals being heard it would be difficult to submit that this court should exclude that evidence from its consideration until a successful application is made for permission to adduce additional evidence. Although that submission was not made on behalf of the wife she does not challenge the admission of the new evidence and the husband did not suggest that we should not rely upon it. Accordingly, should permission to adduce be necessary, I would grant that permission.
Pursuant to the direction of Gloster LJ, the application for permission to appeal came before Gloster and Macur LJJ on 13 July 2016. It is clear from the terms of the judgment handed down by that court that permission to appeal was granted on the basis that the husband had no formal notice of the Hadkinson application or the basis upon which it was brought so that he might effectively respond to the same. The precise terms of the permission granted are discernible from this passage in the judgment of Macur LJ:
"I would grant permission to appeal to the Applicant on the basis of lack of due process in circumstances where the judge correctly directed himself that "the power [to make a Hadkinson order] should only be used as a last resort""
That court imposed the following conditions on the permission:
"[1]…
a. Payment by the Appellant of the Texan Court bond in the sum of $62,500 (payment of which must be evidenced by the Appellant);
b. Payment into court in the sum of £30,000 by way of security for the Respondent's costs of this appeal"
On 3 August 2016 directions were given by Gloster and Macur LJJ for the times and dates by which the payment into the English court was to be made by the husband and for the filing and service of skeleton arguments.
There is no agreement between the parties as to whether there has been compliance with the financial terms of the permission. There appears to have been a payment into this court in accordance with condition 1(b) although, since the wife is represented pro bono on this appeal, that will largely be ineffective unless a further order is made by a court seised of a relevant application to pay the £30,000 to the wife in satisfaction of the purpose originally intended by Gloster LJ if the husband loses this appeal. As to the payment required to the Texan court (which was itself an enforcement process arising out of breach of the English order), the husband has paid the sum ordered to his American attorneys to hold to his order. That does not on its face satisfy the condition. We agreed to hear the appeal de bene esse in order to satisfy ourselves that the husband's access to justice had not been improperly restricted. For the reasons given below I have concluded that this appeal should be dismissed and, if my Lord agrees, given the conclusion on the merits this money must now be paid to the Texan court because payment to that court was a condition of permission being granted. If my Lord agrees, this appeal will have failed and the money is due and is owing to the wife via the Texan court. In the alternative, given that it is now known that the money exists, there is no good reason why the husband cannot instruct his attorneys to pay that sum to the wife forthwith.
The law:
It is helpful in this case to set out the law before considering its application to the facts. It is common ground that the six questions that need to be considered by a court before which a Hadkinson application is made are those summarised by Ryder J in Mubarak v Mubarik [2004] EWHC 1158 (Fam), [2004] 2 FLR 932 at [59]:
(a) Is the husband in contempt?
(b) Is there an impediment to the course of justice?
(c) Is there any other effective means of securing compliance with the court's orders?
(d) Should the court exercise its discretion to impose conditions having regard to the question:
(e) Is the contempt wilful (ie is it contumacious and continuing)?
(f) If so, what conditions would be appropriate?
As respects the fifth principle, the observations of Sir Mark Potter P in Laing v Laing [2007] 2 FLR 199 at [24 – 25], with which I respectfully agree, are helpful:
"[24]…I do not regard the word 'contumacious' as a useful addition or supplement to the threshold requirement that the contempt should be wilful in the sense of a voluntary, deliberate, knowing (and continuing) breach, by a person well able to comply with the order if he or she chose to do so…
[25]…the mere fact that the husband may have a legitimate argument in support of his application for a reduction in maintenance based on the reduction in his own income, does not serve to legitimate his wilful failure to make the payments due under the current order given his ample means to pay out of current resources… "
It is not appropriate for a case management hearing in the family court to determine substantive issues that are not on notice to a respondent in a summary...
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