Unless orders (otherwise known as Hadkinson orders) were established in Hadkinson v Hadkinson [1952] P 285, CA. Although still relatively uncommon, there has been a series of reported cases where the power has been used by the courts over the last few years. It is an approach to be used where there is no other effective remedy to secure a party’s compliance with an order.

A Hadkinson order may be made where a party is in contempt or has failed to comply with a previous order. That party may be prevented from proceeding with a subsequent application unless they comply with the original order. As Lord Justice Denning said in Hadkinson: ‘It is a strong thing for a court to refuse to hear a party to a cause, and it is only to be justified by great considerations of public policy. It is a step which a court will only take where the party itself impedes the course of justice and there is no other effective means of securing his compliance.’

In Mubarak v Mubarak [2004] 2 FLR 932, Mr Justice Ryder held that the Hadkinson rule was article 6 compliant. He also suggested that the following questions should be answered:The principle in Hadkinson and the test applied by Mr Justice Ryder were considered by the president, Sir Mark Potter, in Laing v Laing [2005] EWHC 3152 (Fam). As a condition to continuing with his application to vary an existing periodical payments order, the husband was ordered to discharge the arrears and to pay ongoing periodical payments in a specified sum to his former wife.

  • Is the husband in contempt?
  • Is there an impediment to the course of justice?
  • Is there any other effective means of securing compliance with the court’s orders?
  • Should the court exercise its ­discretion to impose jurisdiction ­having regard to the ­question?
  • Is the contempt wilful, that is to say, is it contumacious and continuing? (Incidentally, ‘contumacious’ means stubbornly or wilfully disobedient.)
  • If so, what conditions would be proportionate?

The president refined the guidance set down by Mr Justice Ryder as follows:Despite the highly unusual nature of the remedy, there have been two recent examples of it being applied by the court. Both were decisions of Mrs Justice King. In C v C (Appeal: Hadkinson Order) [2011] 1 FLR 434 (Fam), [2010] EWHC 1656 (Fam), the judge imposed conditions upon the husband pursuing his appeal of the financial order.

  • The jurisdiction to impose conditions depended upon the situations of the parties and not the size of the sums involved. The court could look at the circumstances of non-payment and the effect of non-payment on the course of justice. The court also had to consider whether there was any other effective way of securing the husband’s compliance with the existing order.
  • The rule could apply to both breaches of capital and maintenance.
  • It was essential to establish whether the contempt was wilful and whether the husband had means to pay. Even though the husband may have a legitimate argument to support his variation application, that did not legitimise his wilful failure to pay when he had the means to do so. Of particular note is the fact that the president did not regard the word ‘contumacious’ as a useful addition or supplement to the threshold requirement that, ‘the contempt should be wilful in the sense of a voluntary, deliberate, knowing and continuing breach by a person well able to comply with the order if he or she chose to do so’.
  • In Mubarak v Mubarik [2006] EWHC 1260 (Fam), Mr Justice Bodey stated: ‘The sanction is… a remedy of last resort. Inappropriate attempts to rely on it would be quickly met with censure and orders for costs.’

The husband had been ordered to pay a lump sum of £1.3m, although he had only paid £200,000. Mrs Justice King therefore ordered the husband to place £1m in the joint names of the parties’ solicitors as a condition of his appeal. If the husband failed to make the payment, then his appeal would be dismissed.

To put the husband’s behaviour into context, he had failed to comply with the financial order, had removed funds from the jurisdiction, had breached a freezing order and had failed to provide full and clear disclosure in his Form E.

In the more recent decision of M v M [2010] EWHC 2817 (Fam), Mrs Justice King found that the husband had only superficially engaged in the litigation. The Russian couple had divorced in Russia and the wife had obtained leave to pursue an order for financial relief in England under part III of the Matrimonial and Family Proceedings Act 1984.

The husband’s affidavit in response to a freezing order application gave limited information of his assets and income. When the wife subsequently applied for interim maintenance, the husband failed to file an affidavit in response and no explanation was given for his failure to do so.

At the hearing of the wife’s application for interim maintenance, the husband failed to attend, but he was represented by leading counsel, junior counsel and his solicitor.

The judge made a Hadkinson order preventing the submissions from the husband’s counsel from being heard. This meant that the husband’s counsel were ordered to leave the court, but the solicitor remained so that they could make a note of the proceedings. The approach was held to be appropriate as there was no other effective way of securing the husband’s compliance with the court orders in view of his continuing breach.

Andrew Newbury is a partner at Pannone