Assoun v Assoun [No 1]

Judgment

Sir Ernest Ryder, Senior President:

This appeal concerns long standing financial remedy proceedings that have been heard in the Central Family Court in London. I shall refer to the appellant as the husband and the respondent as the wife although they have been divorced for some time. The order which the husband appeals was made by His Honour Judge Brasse at a First Appointment on 16 November 2015 which had been listed to give directions on the husband’s application to vary down or discharge a periodical payments order made on 22 November 2013 by Judge Brasse and to remit the arrears under that order. This is a case in which the husband has not paid significant sums due to the wife in accordance with orders made by the courts of England and Wales and by the courts of the state of Texas in the United States of America. It is conceded by the husband that he is breach of the 2013 order.

This judgment has been delayed as a consequence of an application made by the husband upon receipt of the draft judgment to re-open the appeal, to amend the grounds of appeal and to rely upon additional evidence. That application was opposed by the wife and the court directed written submissions by the parties on the issues which were raised. In a separate determination, reported as Assoun v Assoun No 2 [2017] EWCA Civ 179 , the court refused the husband’s application and, as a consequence of the submissions of the parties, provided limited further particulars of its reasoning in paragraphs [21], [22] and [23] of this judgment.

On 16 November 2015 Judge Brasse granted a without notice application made on behalf of the wife that the husband should not be permitted to proceed with his application until he had paid to the wife his debt under the existing court order. The order made is known colloquially as a ‘ Hadkinson Order’ ( Hadkinson v Hadkinson [1952] 2 ALL ER 567). Such an order is draconian in its effect because it goes directly to a litigant’s right of access to a court. It is not and should not be a commonplace. As developed in case law, it is a case management order of last resort in substantive proceedings (for example for a financial remedy order) where a litigant is in wilful contempt rather than a species of penalty or remedy in committal proceedings for contempt.

The husband’s case is that the Hadkinson order was procedurally unfair and was in any event an error of law because it was disproportionate to make such an order in circumstances wh