This article addresses ‘Hadkinson’ orders (Hadkinson v Hadkinson [1952] All ER 567), in light of several recent cases handed down over a short period of time, highlighting the potential limitations as to their availability, namely:

• Williams v Williams [2023] EWHC 3098 (Fam) – Moor J
• WX v HX [2023] EWFC 279 – Recorder Day
• L v O [2024] EWFC 6 – Cobb J
• Re Z (No 5) (Enforcement) [2024] EWFC 44 – Cobb J

By way of background, a Hadkinson order bars a party from being heard upon an application (most commonly their own variation/set aside application or appeal) until they have complied with an existing court order, for example requiring a party to clear arrears of maintenance as a condition of their continuing a variation application of the underlying order – such as:

‘the applicant shall pay £x by way of arrears of periodical payments by [date], and shall continue to comply with the order for periodical payments dated [y], pending determination of his application for downward variation of the said order as a condition of his further prosecution of his application.’

The purpose of a Hadkinson order is to ensure compliance with orders made by a court of competent jurisdiction unless and until that order is discharged.

Provided the court acts proportionately, the prohibition does not violate the ECHR Article 6 right to a fair trial (Mubarak v Mubarik [2007] 1 FLR 722, Bodey J). However, it is plainly a draconian order and a ‘case management order of last resort’ for use against litigants in wilful contempt (Assoun v Assoun (No 1) [2017] 2 FLR 1137).

Consequently, a Hadkinson order will generally only be made when the following conditions are satisfied (Assoun, De Gafforj v De Gafforj [2018] EWCA Civ 2070, para 11, Peter Jackson LJ):

1. the party against whom the order is sought is in contempt;
2. the contempt is deliberate and continuing (rather than a species of penalty or remedy in committal proceedings for contempt);
3. as a result, there is an impediment to the course of justice;
4. there is no other realistic and effective remedy; and
5. the order is proportionate to the problem and goes no further than necessary to remedy it.

Williams

This is a short report. The husband was not represented and did not attend the hearing (namely the wife’s application for an LSPO to finance her ongoing financial remedy application). The husband had ‘resolutely refused to engage in the proceedings’, failing to file a Form E or cooperate with the proceedings in any way, notwithstanding several orders, a penal notice and an application for his committal. Moor J considered it ‘as bad a case of non-compliance with court orders as this court has ever seen’. The wife sought a Hadkinson order ‘to prevent the husband from playing any part in this litigation unless he complies with the orders that have already been made against him’.

Moor J considered that the application for a Hadkinson order was (notwithstanding the husband’s egregious litigation conduct) without merit and should be dismissed, noting (in paragraph 1 of his judgment) his well-known and long-held view that Hadkinson applications have no place in financial remedy proceedings prior to a final order being obtained. Where s 25 of the Matrimonial Causes Act 1973 is engaged, the court’s inquisitorial role requires it to first consider both parties’ financial circumstances and thereafter make orders on the basis of the circumstances set out in the checklist in s 25(2). It would be impossible for the court to engage in that exercise if one party were barred from playing any part in the proceedings. The orders made by the court had been intended to encourage participation by the husband in the proceedings and the wife’s Hadkinson application would defeat those efforts. The application was dismissed.

The outcome of the hearing cannot however be regarded as a ‘lose’ on the part of the wife: the court acceded ‘exceptionally’ to her application for an LSPO in one lump sum to cover her outstanding costs (£190,420), her estimated costs of litigation to FDR (£185,423), and the costs to cover instructing foreign lawyers to ensure compliance with the costs orders (£175,000). The judge also acceded to the wife’s proposed experts (to value commercial property and a business) despite the quote for the former being described as ‘an enormous sum of money’ (£50,000 plus VAT). The husband’s failure to engage in the litigation hitherto resulted in a large part of the success on the part of the wife in framing the case management directions.

WX v HX

This was the adjourned final hearing of the wife’s financial remedy application involving multiple parties. The case had been ongoing for four years and ‘had an extraordinarily long and unhappy procedural history’, the husband having failed in his duty to provide full, frank and clear disclosure. Shortly before the final hearing the wife applied for an order ‘effectively debarring the respondent from all or any participation in the proceedings until his breaches of previous orders had been remedied’.

Whilst he could find no prior authority on the point, Recorder Day considered that there was a:

‘highly material distinction between (a) telling an applicant or appellant that their application or appeal will be put on hold until they comply with a previous order, on the one hand, and (b) telling a respondent that an applicant’s claim against them will be heard and they will not be permitted to address the court in relation to it unless they comply with a previous order on the other.’

The only case of which the Recorder was aware where a Hadkinson order had been made against a respondent, rather than an against an applicant or appellant, was Mubarak v Mubarak [2006] EWHC 1260 (Fam). Mubarak was described by the Recorder as an exceptional case on its facts and that the order made in that case was not a ‘full-blown Hadkinson order, properly-so-called’.

The judge concluded that it was not ‘safe, appropriate or proportionate’ to make the order sought by the wife, partly because of the discrepancies between her written and oral application. Instead the Recorder:

‘exercised [his] discretionary powers of case management under Family Procedure Rules 2010, Part 4, including [his] power under rule 4.1(4)(b) to “specify the consequences of failure to comply with [my] order”, to make a number of case management orders, including “unless” orders and orders to which penal notices were attached.’

L v O

The husband sought variation, set aside and discharge of a number of financial remedy orders made by consent in October 2023 at an FDR appointment, including parts of a lump sum order, an order for sale, and the quantum of periodical payments, with a stay of those orders pending determination of the matter by the court.

The wife cross-applied for a Hadkinson order such that the husband would be barred from taking any further steps in the proceedings to further his own applications until he had at least paid the interest on the outstanding lump sums (in the sum of £759,563) into a frozen account. The wife argued there was ‘no other option’ available to her. Addressing the list of principles as set out in De Gafforj the husband argued it was not a ‘last resort’ case. Dismissing the wife’s application, Cobb J found that, whilst the husband was in contempt which was continuing, he was not satisfied that this created an ‘impediment to justice’, nor was it proportionate to the problem when considering the parties’ respective financial positions. The husband had attempted to negotiate with the wife, and had ostensibly explained his default in payment of the lump sum, whilst himself bringing the matter before the court, and had maintained payment of the periodical payments.

Cobb J did observe, drawing directly from Tattersall v Tattersall [2018] EWCA Civ 1978, that it is perfectly proper for a party to continue enforcement action notwithstanding a live application for a variation of orders. Not allowing an enforcement application to continue in such circumstances might lead to manipulation, or subversion of the court process.

Re Z (No 5) (Enforcement)

As its name suggests, this was the fifth substantive judgment in a Schedule 1 case and came before Cobb J for enforcement of the substantive award, following a final judgment that neither party had sought to appeal, vary or discharge. The mother was seeking the continuation of an ex parte freezing order made earlier in the proceedings against the father, to capitalise the child support ordered and for a Hadkinson order preventing the father from being heard on any issues relating to the orders unless and until he had first complied with his financial obligations under the order and paid the sum of £8,662,940.46 into court.

Cobb J paused to consider the necessity/proportionality of making the Hadkinson order given the father had not attended the hearing in any event, was not represented, and there was no other obvious further litigation before the English courts to which the order might apply. However, reminding himself that the order was being sought after the conclusion of the substantive proceedings, Cobb J was persuaded that a Hadkinson order should be made nonetheless, noting the father’s serial non-compliance, failures on numerous occasions to address the court, the significant needs of the child, the need for proper security for the mother should the father attempt to engage with the court on any application for variation or discharge, and the father’s deliberate and flagrant contempt of the substantive order. In short:

‘if the father wishes to apply to this court for any form of substantive relief (including variation or discharge of any of the orders made), then he will need to make the relevant payment up front.’

Comment

The recent cases confirm that a Hadkinson order will only be made after the making of a final order and that they may properly be made against either an applicant for or a respondent to an application. The court must take care to ensure that sanctions imposed upon a litigant do not have the unintended consequence of leaving the court without the evidence that it requires properly to discharge its quasi-inquisitorial function and arrive at a decision which is as fair as possible in all the circumstances.

Prior to the making of a final order, in the event of non-compliance by a recalcitrant party, practitioners would be well advised to apply for rigorous case management directions, including costs orders, penal notices, committal, unless orders and greater control of the form/extent of expert evidence, rather than a Hadkinson order proper.