Enforcing Legal Services Payment Orders via Hadkinson Orders in Family Appeal Proceedings

Introduction

This commentary reviews the Court of Appeal decision in Ahmad & Anor v Faraj ([2025] EWCA Civ 468), delivered on 10 April 2025 by Lady Justice King (with whom Lord Justice Snowden agreed). The case arises from a long-running financial remedy dispute between the husband, Sohail Sultan Ahmed (a majority shareholder and director of IIB Group Holdings, a Bahraini bank), and the wife, Meerna Ali Ghuloom Faraj. At first instance, Sir Jonathan Cohen granted the wife substantial financial relief and later made a legal services payment order (LSPO) under section 22ZA of the Matrimonial Causes Act 1973, requiring the husband to pay £120,000 + VAT to fund her legal representation in two sequential appeals (his and IIB’s). When the husband failed to pay, the wife applied for case management orders—either an “unless order” or a “Hadkinson order”—to enforce the LSPO and prevent the husband’s appeal from going forward unless he complied.

Summary of the Judgment

The court affirmed its broad case management powers under CPR 3.1(3) to impose conditional orders, including unless orders and Hadkinson orders, where a litigant is in deliberate contempt of a payment order.
It held that an immediate unless order (which would automatically dismiss the husband’s appeal if he did not pay by a set date) would be disproportionate given that permission to appeal on the key ground (the so-called “disputed accounts” of £16 million) had been granted.
By contrast, a Hadkinson order—barring the husband’s appeal unless and until he purged his contempt by paying the LSPO—was proportionate and necessary to ensure justice to the wife, who otherwise would lack legal representation.
The judgment set clear directions and a “long-stop” date: if the husband failed to pay £120,000 + VAT by 11 July 2025, his appeal would stand dismissed without further order; IIB’s appeal would be listed after 1 October 2025, with flexibility to hear the two appeals together if the LSPO was satisfied in time.

Analysis

Precedents Cited

Section 22ZA & 22ZB, Matrimonial Causes Act 1973: Empower the court to order one party to fund the other’s legal costs where the recipient cannot reasonably obtain appropriate legal services. Factors include the paying party’s resources and the effect of the order on them.
Hadkinson v Hadkinson [1952] FLR 287: Establishes that a party in contempt of a court order may be barred from further participation in proceedings until compliance (“purging” contempt).
De Gaffori v De Gaffori [2008] EWCA Civ 2070: Clarifies criteria for Hadkinson orders, including deliberate contempt, impediment to justice, absence of alternative remedies, and proportionality.
Mubarak v Mubarak (No.2) [2006] EWHC 1260 (Fam): Confirms that ability to pay is relevant at the remedy stage, not for establishing contempt.
Denton v TH White Ltd [2014] EWCA Civ 906: Three-stage test for relief from sanctions under CPR 3.9, relevant to the effect of an unless order on a party’s right of appeal.
Assoun v Assoun (No.1) [2017] 2 FLR 1137: Describes Hadkinson orders as a “last resort” case management tool against wilful contempts.

Legal Reasoning

The Court of Appeal’s reasoning unfolded in several stages:

Contempt established: The husband’s non-payment of the LSPO was deliberate and knowing. The LSPO had been validly made under section 22ZA, and the husband’s appeal against it had been dismissed by Moylan LJ on 20 February 2025.
Case management powers: Under CPR 3.1(3), the court can impose conditions on continuance of proceedings. It may order dismissal of an appeal for non-compliance with pre-hearing obligations.
Proportionality and alternatives:
- An unless order would automatically dismiss the husband’s appeal if he had not paid by 11 July 2025, forcing him later to apply for relief from sanctions via Denton’s test. The court regarded that as disproportionately harsh.
- A Hadkinson order bars the hearing of the appeal until the contemnor purges his contempt—here, by paying the LSPO—and requires no separate relief from sanctions. The court found no less draconian remedy available.
Specification of conditions: The judgment carefully set out:
- A payment deadline (2 May 2025) for the LSPO;
- A final long-stop date (11 July 2025) after which the husband’s appeal “stands dismissed” if the LSPO remains unpaid;
- Directions for listing IIB’s appeal after 1 October 2025, with flexibility to re-bundle the hearings if payment is made in time.
Case-management postscript: Responding to late submissions, the court shortened the long-stop period from six months to two, reflecting the husband’s four months’ prior notice and the need for finality in litigation.

Impact

This decision clarifies and cements several important principles for family law practitioners and parties in financial remedy appeals:

It confirms that section 22ZA LSPOs may be enforced by conditional case-management orders barring late-paying appellants from further participation unless they purge contempt.
It distinguishes the appropriate use of unless orders (automatic dismissal subject to Denton relief) from Hadkinson orders (automatic bar until compliance with no separate relief process), stressing proportionality.
It underscores the court’s responsibility to set clear deadlines and “long-stop” dates to avoid indefinite adjournments and ensure finality.
Future litigants will see this case as a roadmap for enforcing party-funding orders and navigating strategic non-payment by opponents in appeal proceedings.

Complex Concepts Simplified

Legal Services Payment Order (LSPO): A court order under Matrimonial Causes Act 1973 s 22ZA requiring one spouse to fund the other’s legal costs in specific proceedings where they cannot reasonably afford representation.
Unless Order: A conditional order that provides an appellant a deadline to comply—failing which their appeal is automatically dismissed, although they may seek relief via the Denton test.
Hadkinson Order: A case management device that prevents a party in contempt of a payment order from proceeding with their appeal until they comply, without the need for a separate relief application.
Contempt of Court: Willful disobedience of a valid court order, which can justify sanctions including barring participation in proceedings until compliance.
CPR 3.1(3): Grants the court broad powers to manage cases, impose conditions, and specify consequences for non-compliance to ensure efficient and fair progress of litigation.
Denton Test: The three-stage test under CPR 3.9 for relief from sanctions, requiring evaluation of seriousness of breach, reasons for it, and whether relief would prejudice other parties or the administration of justice.

Conclusion

Ahmad & Anor v Faraj significantly reinforces the Court of Appeal’s case management arsenal in financial remedy appeals. It establishes that where one party is found in wilful contempt of a legally valid LSPO, a Hadkinson order is a proportionate, effective remedy to enforce payment and secure fair participation by both sides. The decision draws a clear distinction between Hadkinson and unless orders, underlines the importance of setting decisive deadlines and long-stop dates, and provides a template for future practitioners on enforcing cost orders in family law appeals. In doing so, it upholds the foundational principle that justice demands both parties have equitable access to representation, and that deliberate non-payment cannot be allowed to undermine the court’s remedial orders.