Assoun v Assoun

Factual and Procedural Background

This appeal concerns long-standing financial remedy proceedings heard in the Central Family Court in London involving parties referred to as the husband (Appellant) and the wife (Respondent), who have been divorced for some time. The husband appealed an order made by His Honour Judge Brasse on 16 November 2015 at a First Appointment hearing. This hearing was convened to give directions on the husband's application to vary down or discharge a periodical payments order originally made on 22 November 2013, and to remit arrears under that order. The husband conceded breach of the 2013 order and had failed to pay significant sums owed to the wife under court orders from both England and Wales and the state of Texas, USA.

The judgment was delayed due to the husband's application to re-open the appeal, amend grounds, and rely on additional evidence, which was opposed by the wife. The Court of Appeal refused this application in a separate determination. On 16 November 2015, Judge Brasse granted a without notice application by the wife that the husband should not proceed with his application until he paid his outstanding debt under the existing court order. This type of order is known as a "Hadkinson Order," a draconian case management order of last resort that restricts a litigant's access to court where wilful contempt is found.

The husband challenged the Hadkinson order as procedurally unfair and disproportionate, arguing he lacked sufficient resources to comply and that less restrictive conditions could have been imposed. The appeal focused on whether the Hadkinson principles were correctly applied to the facts. The Court of Appeal granted permission to appeal on limited grounds, attaching financial conditions to the husband's right to appeal, including payments into court and to the Texan court.

Legal Issues Presented

1. Whether the Hadkinson order was procedurally fair and lawfully made in accordance with the principles governing such orders.
2. Whether the husband was in wilful contempt of the court's orders, justifying the imposition of a Hadkinson order.
3. Whether the conditions imposed by the Hadkinson order were proportionate and compliant with Article 6 of the European Convention on Human Rights (ECHR) regarding the right to a fair trial.
4. Whether the husband had the current means to pay the sums due and whether less restrictive measures could secure compliance.

Arguments of the Parties

Appellant's Arguments

• The Hadkinson order was procedurally unfair, made without proper notice or opportunity to respond.
• The order was disproportionate given the husband's asserted lack of sufficient resources to comply.
• The husband sought an opportunity to argue the merits of his variation application and his financial position in substantive proceedings.

Respondent's Arguments

• The husband's conduct amounted to wilful contempt and was designed to frustrate enforcement of court orders.
• The husband engaged in relentless litigation tactics intended to wear down the wife financially and emotionally.
• The Hadkinson order was necessary as all other enforcement measures had been exhausted and the husband had the means to pay but chose not to do so.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Hadkinson v Hadkinson [1952] 2 ALL ER 567	Principles governing Hadkinson orders as case management orders of last resort restricting access to court in cases of wilful contempt.	The court confirmed that a Hadkinson order is draconian and must only be used as a last resort where a litigant is in wilful contempt, not as a penalty or remedy in committal proceedings.
Mubarak v Mubarak [2004] EWHC 1158 (Fam), [2004] 2 FLR 932	Six questions to consider before making a Hadkinson order, including wilful contempt and proportionality.	The court applied these six questions as a framework to assess whether the Hadkinson order was appropriate in the present case.
Laing v Laing [2007] 2 FLR 199	Clarification of "wilful" contempt and the threshold for imposing Hadkinson orders.	The court agreed that wilful contempt requires a voluntary, deliberate, and continuing breach by a party able to comply.
Ashingdane v United Kingdom (1985) 7 EHRR 528	Article 6 ECHR principles on fair trial rights and proportionality of limitations on access to court.	The court emphasized that limitations must pursue a legitimate aim and be proportionate, ensuring the essence of the right to a fair trial is not impaired.
Roocroft v Ball [2016] EWCA Civ 1009	Clarification that summary judgment procedures do not apply in family court case management hearings.	The court confirmed that substantive issues cannot be determined in case management hearings without proper notice.
Assoun v Assoun No 2 [2017] EWCA Civ 179	Refusal to re-open appeal and admit additional evidence; procedural directions on appeal.	The court refused the husband's application to re-open the appeal and provided limited further particulars of reasoning.

Court's Reasoning and Analysis

The court carefully examined the procedural history and the substantive facts, applying established legal principles governing Hadkinson orders. It noted that although the wife's application for the Hadkinson order was made without formal notice and was procedurally irregular, the husband's wilful contempt and failure to provide full and frank disclosure weighed heavily against him. The court found that the husband had the means to comply with the 2013 order but chose not to do so, as evidenced by prior findings and his litigation conduct.

The court emphasized the importance of strict compliance with procedural rules in family proceedings, especially for orders restricting access to court. However, given the husband's history of non-compliance and tactical behavior, the court concluded that any procedural irregularity was insufficient to invalidate the order. The evidence filed by the husband pursuant to court directions was inadequate, failing to satisfy the requirement for full disclosure and not undermining the judge's conclusions.

The proportionality of the Hadkinson order was assessed in light of the absence of any effective less restrictive means to secure compliance. The judge's conclusion that the order was the least restrictive option available was upheld. The court also addressed the financial conditions imposed for permission to appeal, concluding that since the husband had not complied fully, the appeal should be dismissed and the funds held or paid to the Texan court as ordered.

Holding and Implications

The court DISMISSED the appeal, affirming the Hadkinson order made by the lower court. The court held that the husband was in wilful contempt of court orders and that no procedural irregularity or disproportionality justified overturning the order. The financial conditions attached to the permission to appeal were not fully complied with, and the funds in question are to be held pending further application or paid to the Texan court as originally ordered.

The direct effect of this decision is to uphold the restriction on the husband's access to court until he complies with his financial obligations. No new legal precedent was established; rather, the court applied existing principles to the facts, emphasizing the importance of full disclosure, procedural compliance, and the use of Hadkinson orders as a last resort in family financial remedy proceedings.