WJB v HJM [2024] EWFC 116 (B)15 February 2024

Published: 24/06/2024 23:05


District Judge Ashworth. This was an application by W for a Hadkinson order preventing H from pursuing his application to vary an order for periodical payments made in 2017 (‘the order’). The order provided that H pay W £3,500 per month on a joint lives basis or until H retired at 67, together with CPI adjustment payments to be made on the 28th day of the month. H applied to vary the order on the basis that W would be earning £20,000 per annum and he thought that she ought to have been doing that, and he alleged that W was cohabitating. His application made no reference to issues with affordability. W then applied for a Hadkinson order preventing him from proceeding with his application to vary unless he cleared the arrears, and for a penal notice to be endorsed on the directions to file an E1. As of the date of the hearing, the arrears stood at £61,901.62.

Per de Gaffori v de Gaffori, before a Hadkinson order could be made it must be shown that the respondent is in contempt, the contempt is deliberate and continuing and as a result there is an impediment to the course of justice, and there is no other realistic and effective remedy [20]. H was clearly in contempt as he failed to comply with the order. Non-payment in breach of a maintenance order is a contempt of court regardless of ability to pay. Questions of ability to pay come into play when considering whether and how to act on the contempt (see Mubarak).

H’s non-compliance caused W to exhaust her savings and she was now having to rely on credit cards and borrowing to fund her legal costs. There would be a clear impediment if W was unable to pursue matters with legal representation, given that H was based in the US and his failure to comply with orders to date. de Gaffori was distinguished as here, W made a pragmatic decision not to pursue an application for an LSPO because of the history and costs. In essence, her maintenance was being used to fund the legal costs, which might otherwise have been the subject of an LSPO as there was one pot of money. Whilst the order was draconian, H was unlikely to be affected by it as his application to vary was not based on affordability. There was no other realistic and effective remedy that was proportionate to the problems in the case and the order sought did not go further than was necessary to remedy those difficulties. H was residing in the US, and he had very few, if any, assets in the UK.

The judge therefore determined that the Hadkinson order should be made preventing H from pursuing his application to vary unless and until he paid W £61,901.62 in relation to the arrears, £13,687.20 in respect of costs from his non-attendance and non-compliance from two last hearings, and costs of £7,252,80. H was penalised in costs summarily assessed at £10,932.60, which was also added to the Hadkinson order; [32]–[37].

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