De Gafforj (Appeal: Hadkinson Order)

Factual and Procedural Background

This opinion arises from an application by the wife for an order preventing the husband from pursuing an appeal pending before the court, on the basis that he is in contempt of court for failing to comply with orders relating to maintenance pending suit, costs, and a legal services payment order. The parties, who are French nationals married in France with two children educated in England, have been engaged in a dispute over whether their divorce proceedings should take place in England or France. The wife initiated divorce proceedings in England in April 2016, shortly before the husband issued a petition in France. The husband challenged the English court's jurisdiction, asserting the wife was not resident in England for the required period. This jurisdictional issue was tried and determined in the wife's favour, with subsequent permission granted to the husband to appeal certain findings, including refusal to refer a question to the European Court of Justice. The appeal was scheduled for hearing in October 2018, with both parties represented by counsel.

Meanwhile, the wife sought financial orders. In November 2017, the husband was ordered to pay maintenance and costs; he paid maintenance until April 2018 but failed to pay costs. In June 2018, further orders increased maintenance and imposed a legal services payment order to cover the wife's legal debts and ongoing litigation costs. The husband ceased engagement with the proceedings around May 2018, his solicitors withdrew, and he made no payments under the June order or the outstanding costs. The wife applied for a Hadkinson order to prevent the husband from pursuing his appeal unless he complied with the outstanding payments. The husband did not respond or attend the hearing, and the court granted the wife's application.

Legal Issues Presented

1. Whether the husband is in contempt of court for non-compliance with maintenance, costs, and legal services payment orders.
2. Whether a Hadkinson order should be made to prevent the husband from pursuing his appeal pending compliance with the outstanding payments.
3. Whether the conditions for granting such a Hadkinson order have been met, including the proportionality and necessity of the order.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court reasoned that all essential criteria for a Hadkinson order were clearly met. The husband was found to be in contempt due to deliberate and continuing non-compliance with court orders for maintenance, costs, and legal services payments. This contempt created a direct impediment to the course of justice, particularly as payment of the legal services order was essential for the wife to participate effectively in the appeal. The court noted there was no other realistic or effective remedy available within the appeal timeframe, as enforcement procedures would not be timely. The court distinguished between the unpaid maintenance and costs, which were less directly impeding justice, and the unpaid legal services payment, which was a striking and direct impediment. The order sought was considered proportionate, with a slight margin beyond necessity due to the inclusion of some costs and maintenance, but justified by the circumstances and the imminence of the appeal hearing.

The court accordingly ordered that the husband must pay the outstanding legal services payment and the wife's costs of the application by a specified deadline, failing which the husband's appeal would be dismissed and the stay on the wife's divorce petition lifted. The court emphasized the exceptional nature of such an order and ensured the husband was served with the order and judgment in both English and French.

Holding and Implications

The court GRANTED the wife's application for a Hadkinson order.

The husband was ordered to pay the outstanding legal services payment order and the wife's costs related to the application by 4 pm on Monday 8 October 2018. Failure to comply would result in dismissal of the husband's pending appeal and the lifting of the stay on the wife's divorce petition. The decision directly affects the parties by conditioning the husband's right to pursue his appeal on compliance with court-ordered payments. No broader legal precedent was established beyond the application of established principles governing Hadkinson orders in this context.