Sohail Sultan Ahmad & Anor v Meerna Ali Ghuloom Faraj

Permission to appeal is relevant but not determinative when deciding whether to make an unless order. Such an order may dismiss an appeal automatically if a condition is not met, but proportionality remains essential. A Hadkinson order normally requires deliberate and continuing contempt, an impediment to justice, no realistic and effective alternative remedy, and a proportionate response. Ability to pay is not a precondition to establishing wilful contempt, although it is relevant to the order the court should make. Failure to pay a legal services payment order may directly impede justice where it prevents a party from participating fairly in an appeal. A short payment opportunity and a Hadkinson condition were proportionate, while immediate dismissal by unless order was not.

The proceedings arose from financial remedy proceedings between the wife and husband, in which Sir Jonathan Cohen made orders including a lump sum order: [2023] EWFC 209. The husband and IIB appealed. The husband’s appeal concerned findings about disputed accounts, while IIB challenged the jurisdiction to require agreement concerning a replacement matrimonial home.

The Family Court later made a legal services payment order under section 22 ZA of the Matrimonial Causes Act 1973, requiring the husband to pay £120,000 plus VAT towards the wife’s representation on the appeals. The husband did not pay. His appeal against that order was dismissed by Moylan LJ. The wife then sought an adjournment and either an unless order or a Hadkinson order. The central issue was how the unpaid order should affect the husband’s appeal.

Lady Justice King dismissed the application for an immediate unless order but made a Hadkinson order. Lord Justice Snowden agreed.

1. Under CPR 3.1(3), the court may make conditional case-management orders and specify automatic consequences for non-compliance. Permission to appeal is relevant but not determinative. An unless order must remain proportionate. Here, immediate dismissal would have been disproportionate because permission had been granted on an issue central to the legal services payment order and the husband should have a short further opportunity to comply.
2. The court applied the five conditions identified in De Gaffori v De Gaffori [208] EWCA Civ 2070: contempt; deliberate and continuing contempt; an impediment to the course of justice; no other realistic and effective remedy; and proportionality. The conditions were satisfied. Failure to fund the wife’s representation impeded her fair participation in the husband’s appeal, and no other realistic and effective remedy existed.
3. Wilful contempt means conduct that is voluntary, deliberate and knowing, following Laing v Laing [2005] EWHC 3152 (Fam). Ability to pay is not an express requirement for establishing contempt. It is relevant when deciding whether and how to act on the contempt, including proportionality, applying the approach in De Gaffori and Mubarak v Mubarik (No.2) [2006] EWHC 1260 (Fam). The husband knowingly failed to pay and the judge’s findings about his assets, together with other assets identified by Moylan LJ, justified treating him as able to pay.
4. The court declined to include the separate Court of Appeal costs order in the Hadkinson condition. Its non-payment did not itself impede the course of justice, although the wife remained free to enforce it.

The husband’s appeal was not to be listed unless and until the legal services payment order was paid in full. Payment by 2 May 2025 would permit listing with IIB’s appeal where possible. If payment was not made by 11 July 2025 at 4.00 pm, the husband’s appeal would stand dismissed without further order and the stay on enforcement of the lump sum order would be discharged. IIB’s appeal was directed to be listed after 1 October 2025.

• Court of Appeal (Civil Division): The present judgment made a Hadkinson order conditioning the hearing of the husband’s appeal on payment of the legal services payment order, while refusing an immediate unless order and providing for a long-stop dismissal date.
• Court of Appeal (Civil Division): Moylan LJ dismissed the husband’s appeal against the legal services payment order on 20 February 2025.
• Family Court: Sir Jonathan Cohen determined the financial remedy proceedings and made the substantive orders, including the lump sum order, in [2023] EWFC 209. Permission to appeal was granted in the husband’s and IIB’s appeals.