An alternative to committal
Sometimes when one party to matrimonial proceedings is failing to adhere to court orders, there is an alternative, if rarely used, procedure which is to apply for what is known as a ‘Hadkinson’ order. An example of this is the recently reported case of Anne and Henri de Gafforj.
Anne and Henri were both French Nationals who had married in 2002. They had two children who had been attending school in England and at the time of the hearing Anne had a home in England whilst Henri lived in France.
In April 2016 Anne started divorce proceedings in England. Henri then petitioned for divorce in France six weeks later and applied for a stay of the English proceedings contending that the English court lacked jurisdiction because Anne had not been resident in England for a year at the date when the petition was issued. This sort of dispute is commonplace where it suits one person to get divorced in one country rather than another. Some countries can be more generous to applicants than others. When the matter was tried in April 2017 the judge ruled in favour of Anne finding that she had been resident in England and Wales for a year when her petition was issued. The judge rejected Henri’s case that it was necessary for Anne not only to be ‘resident’ but to be ‘habitually resident’ in order for jurisdiction to be made out. The judge refused to make a reference to the European Court of Justice (a CJEU reference).
In October 2017 Henri obtained permission to appeal and the appeal was scheduled to be heard at the end of October 2017. In the meantime Anne has applied for financial orders and in November 2017 Henri was ordered to pay Anne maintenance and costs of £8,695. He paid maintenance until April 2018 but did not pay any of the costs. In June 2018 Anne’s maintenance was increased and a legal services order was made in her favour for £80,099 covering her debt to her former solicitors and ongoing payments of £12,000 per month to finance her ongoing legal costs. Henri made no payment in compliance with this order and he appeared to have disengaged from the proceedings in May 2018.
Anne therefore applied for a Hadkinson order in August 2018 seeking a dismissal of Henri’s appeal unless he paid the sums due under the November 2017 and June 2018 together with the costs of her application.
A Hadkinson 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 commonplace. It is a case management order of last resort in substantive proceedings where a litigant is in wilful contempt. The court determined that the following conditions are necessary before a Hadkinson order can be made:
- the respondent is in contempt;
- the contempt is deliberate and continuing;
- as a result, there is an impediment to the course of justice;
- there is no other realistic and effective remedy; and
- the order is proportionate to the problem and goes no further than necessary to remedy it.
The judge further found that this was a plain case in which all the essential criteria were met:
- the husband was in contempt of both orders;
- the contempt was deliberate and continuing, Henri having disengaged in the midst of his own appeal;
- there was an impediment to the course of justice in that compliance with the legal services payment order was essential to enable Anne to participate fairly in Henri’s appeal. Without payment her previous solicitors would not release their papers and she could not pay her new solicitors. However, non-payment of the outstanding maintenance and costs was not an insuperable impediment to the course of justice;
- there was no other realistic remedy. The process of enforcement against Henri’s assets could not take place within the appeal timescale. Nothing less than a Hadkinson order had any chance of being effective; and
- a Hadkinson order would go further than necessary but only to a marginal extent.
A consequence of the above was that Henri was only to be permitted to pursue his appeal in the divorce proceedings on the condition that he paid the sums outstanding under the legal services payment order and Anne’s costs in this application by 8 October 2018 (a total of £140,000). If he did not do this, his appeal would be dismissed without further order and the stay on Anne’s petition would be lifted.
The court also provided other examples of where this type of order was appropriate. In one case the court required a lump sum to be brought onshore as a condition for an appeal continuing, failing which it would be dismissed. In another the husband was required to give instructions to trustees and make legal services payments if he was to continue to be heard in financial remedy proceedings. In a third the husband was required to make good arrears of maintenance before his application to vary was heard and in Hadkinson itself, the Court of Appeal refused to hear a mother’s appeal until she had returned a child to England. The form of order will be tailored to the needs of the case. What is important is that the sanction is no stronger than it need be to remove the impediment to justice.
This remedy will not be appropriate in many cases but it is perhaps currently underused and should not be forgotten. It can be an effective remedy.