Assoun v Assoun [No 1]

A Hadkinson order, which prevents a litigant in wilful contempt from pursuing substantive proceedings until conditions are met, is a case-management measure of last resort. The court must examine the six questions summarised in Mubarak, including whether the contempt is wilful, whether it impedes justice and whether any less restrictive means can secure compliance.

Because the order restricts access to the court, the application ordinarily requires meticulous compliance with the inter partes procedure under the Family Procedure Rules. The limitation must pursue a legitimate aim and remain proportionate. Proportionality ordinarily asks whether another effective, less restrictive condition is available. Findings relevant to the order are made to the civil standard of proof.

The husband appealed against an order made by Judge Brasse at a First Appointment in long-running financial remedy proceedings. The order prevented him from pursuing an application to reduce or discharge a periodical payments order, and to remit arrears, until he paid the debt owed under the existing order.

The wife had sought the Hadkinson order without formal notice shortly before a 30-minute directions hearing. The husband admitted breaching the periodical payments order but maintained that he lacked the means to comply. He argued that the procedure had been unfair and that the restriction on his access to the court was disproportionate.

Permission to appeal was granted on the ground of lack of due process, subject to financial conditions. The central issue was whether the Hadkinson principles had been correctly applied despite the procedural deficiencies in the wife’s application.

1. The appeal was dismissed. A Hadkinson order is a draconian case-management order of last resort. Before making one, the court must address the six questions summarised in Mubarak v Mubarik [2004] EWHC 1158 (Fam): contempt, impediment to justice, alternative means of securing compliance, the exercise of discretion, wilfulness and the appropriate conditions.

2. Wilful contempt means a voluntary, deliberate, knowing and continuing breach by a person able to comply. A potentially legitimate application to reduce maintenance does not excuse deliberate non-payment under the existing order where the payer has adequate resources. Findings relevant to a Hadkinson order are made to the civil standard.

3. An application for a Hadkinson order should ordinarily be made under Part 18 of the Family Procedure Rules, by notice stating the order sought and the reasons for seeking it. Evidence relied upon must comply with Part 17, and service must comply with rule 18.8. Because such an order restricts access to justice, courts should scrutinise compliance meticulously and should refuse or adjourn a non-compliant application unless an expedited or without-notice procedure is justified.

4. The wife had not complied with that procedure and had shown no justification for proceeding without notice. Nevertheless, the husband had long known of the risk of a Hadkinson order. The evidence available to Judge Brasse justified findings that his default was wilful, that his conduct impeded justice and that he had failed to provide full and frank disclosure. The further evidence filed for the appeal remained inadequate and did not displace those conclusions. An adjournment for evidence would therefore have achieved no material procedural benefit.

5. The restriction was proportionate under article 6 of the European Convention on Human Rights. In this context, proportionality required the court to ask whether another effective, less restrictive means could secure compliance. The wife had exhausted other enforcement methods, while further disclosure directions were unlikely to be effective. The Hadkinson order was therefore the only remaining effective measure and the least restrictive available condition.

6. The money lodged in court was to remain subject to the Court of Appeal’s order. The sum held by the husband’s American attorneys was to be paid to the Texan court or directly to the wife, and the judgment and Hadkinson order were to be supplied to the Texan court and the parties’ American attorneys.

• Court of Appeal (Civil Division): Dismissed the husband’s appeal and upheld the Hadkinson order. The court concluded that the order was procedurally sustainable in the exceptional circumstances and was the least restrictive effective means of securing compliance.
• Central Family Court: Judge Brasse made a Hadkinson order on 16 November 2015 preventing the husband from pursuing his application to vary or discharge periodical payments, and to remit arrears, until he paid the debt due under the existing order.