Anne Orenga de Gafforj v Henri Orenga de Gafforj

A Hadkinson order is an exceptional case-management measure of last resort. It may restrict a contemnor’s participation in proceedings only where the contempt is deliberate and continuing, impedes the course of justice, cannot realistically be remedied otherwise, and the restriction is proportionate.

The sanction must remove the identified impediment and go no further. Where non-payment of a legal services payment order prevents the opposing party from participating fairly in an imminent appeal, the court may make payment a condition of the appeal continuing. Non-payment of maintenance and costs will not justify inclusion in the condition unless it creates an equivalent impediment.

The wife had commenced divorce proceedings in England. The husband challenged jurisdiction, maintaining that the wife had not satisfied the residence requirement in the fifth indent of Article 3 of Council Regulation 2201/2003. District Judge Hudd found for the wife. The husband appealed, and the appeal was due to be heard by the Court of Appeal.

While that appeal was pending, the husband failed to comply with orders for maintenance pending suit, costs and legal services payments. The wife applied for a Hadkinson order preventing him from pursuing his appeal unless he paid the outstanding sums. The central issue was whether, and to what extent, his continuing non-compliance justified making payment a condition of his appeal proceeding.

1. The wife’s application was granted. A Hadkinson order is draconian because it restricts access to the court. It is an exceptional case-management order of last resort, not a penalty for contempt or enforcement by the back door.

2. The necessary conditions were satisfied: the respondent was in contempt; the contempt was deliberate and continuing; it impeded the course of justice; no other realistic and effective remedy was available; and a proportionate order could be framed. Breach of a maintenance order is itself contempt irrespective of ability to pay. Ability to pay is relevant when deciding whether and how to act on that contempt.

3. The husband’s failure to make the legal services payments directly prevented the wife from funding representation and participating fairly in the imminent appeal. Enforcement against his assets could not realistically be completed in time. That non-payment was therefore an insuperable impediment to justice.

4. The court distinguished the unpaid maintenance and earlier costs. They caused serious difficulty, but did not on these facts create an equivalent direct impediment. Including them in the condition would go marginally further than necessary.

5. The husband could pursue the appeal only if, by 4 pm on 8 October 2018, he paid the outstanding legal services payments and the wife’s costs of this application, summarily assessed, totalling £140,000. If he did not pay, the appeal would be dismissed without further order and the stay of the wife’s divorce petition lifted.

• Court of Appeal (Civil Division): The wife’s application for a Hadkinson order was granted. The husband’s jurisdiction appeal was made conditional upon payment.
• Central Family Court: District Judge Hudd held that the wife had been resident in England and Wales for the required period, rejected the husband’s contrary jurisdiction argument, and granted him permission to appeal on the interpretation of the fifth indent of Article 3 of Council Regulation 2201/2003.
• High Court: Baker J granted permission to appeal the refusal to make a reference to the Court of Justice of the European Union and transferred the appeal to the Court of Appeal.