21 November 2018

October 2018 - Private Law

For a PDF version of this months update: Click Here

 

 

Lord Justice Peter Jackson granted a wife’s application for a Hadkinson order

De Gafforj (Appeal - Hadkinson Order) [2018] EWCA Civ 2070

20 September 2018

  • The wife sought an order preventing the husband from pursuing an appeal. The basis of her application was that the husband was in contempt of court by having failed to comply with orders for maintenance pending suit, costs and a legal services payment order. The type of order sought was known as a Hadkinson order.
  • The application arose from a dispute as to whether the divorce should have taken place in England, where the wife issued the divorce petition, or France, where the husband issued the divorce petition. The husband submitted that the fifth indent of Article 3 of the Council Regulation 2201/2003 was not met because the wife had not been resident in England for a year at the date that the petition was issued.
  • District Judge Hudd at the Central Family Court ruled in favour of the wife, finding that (1) the wife had been resident (but not habitually resident) in England at the date the petition was issued and (2) for jurisdiction to be found, the wife needed to be just “resident,” rather than “habitually resident” in England. The judge refused to make a reference to the European Court of Justice but gave the husband permission to appeal in relation to her interpretation of the fifth indent. In October 2017 Baker J granted permission to appeal from the refusal to make a CJEU reference and transferred the matter to the High Court, where it was due to be heard in October 2018.
  • The wife sought financial orders in the interim. On 6 November 2017, the husband was ordered to pay maintenance pending suit and costs of £8,695. He paid maintenance up to April 2018 but did not pay the costs. On 25 June 2018, DJ Hudd increased the wife's maintenance and made a legal services payments order of £80,099 to her debts, and an order of £12,000 pm to finance her ongoing litigation. The husband disengaged from the proceedings in May 2018 and made no payments.
  • The wife’s former solicitors exercised a lien over her papers until the bill was paid. Her new solicitors could not prepare the appeal without being put in funds. The wife issues an application for the husband’s appeal to be dismissed, unless he paid £165,561 to her.
  • Peter Jackson LJ reminded himself of the judgment in the case of Assoun v Assoun [No 1] [2017] EWCA Civ 21, that Hadkinson orders were draconian in nature and should only be used as a case management order of last resort where a litigant was in wilful contempt. The learned judge added that this order was not to be used as a “back door” committal or enforcement instrument.
  • Jackson LJ summarised the necessary conditions that must be satisfied before an order can be made as follows:
  1. The respondent was in contempt.
  2. The contempt was deliberate and continuing. 
  3. As a result, there was an impediment to the course of justice.
  4. There was no other realistic and effective remedy.
  5. The order was proportionate and went no further than necessary to remedy it.
  • As to conditions (1) and (2) the husband was in contempt in relation to both orders, due to non-payment of the maintenance order.
  • Condition (3) was fulfilled since the non-payment impeded the wife’s ability to engage in the appeal proceedings, thereby impeding the course of justice.
  • Condition (4) was satisfied since there was no other remedy at the court’s disposal that would have enabled the wife to engage in the appeal proceedings.
  • The court found that condition (5) was satisfied since this type of order would have only marginally gone further than necessary.
  • The wife’s application was granted.

 

 

Sentencing for contempt for steadfast refusal to obey court orders in a private law matter

Hart v Hart [2018] EWHC 2966 (Fam)

5 November 2018

  • The original litigation involved Mr. and Mrs Hart. Mr. Hart’s sister, Susan Byrne (SB), was the third respondent in the proceedings.
  • During the proceedings, two Court Orders were granted (on 24th February, and 29th July 2016). In the Orders were clear provisions affecting Susan Byrne. Susan Byrne was being ordered to disclose certain material.
  • This hearing before HHJ Wildblood QC was to sentence Miss Byrne for contempt arising out of the divorce proceedings, following flagrant breaches of Court Orders.
  • At the outset HHJ Wildblood stated that he was in the most undesirable position in considering sentence for a highly respected  65 year old woman, who had contributed positively to her family and wider community.
  • Susan Byrne had much going for her in terms of mitigation. HHJ Wildblood was meticulous in documenting the various mitigating features.
  • Against those mitigating factors, were weighed the aggravating features:
  1. SB had every opportunity to comply;
  2. SB knew the prejudice she would cause to Mrs Hart by non-compliance;
  3. SB had demonstrated no element of remorse;
  4. SB had deliberately withheld the documents.
  • HHJ Wildblood considered the contempt to be seriously aggravated, as it was deliberate, damaging, and sustained. It was most likely motivated by a sense of misplaced loyalty towards SB’s elder brother, Mr. Hart.
  • Paragraph 6 should be read in full as it emphasises Hale LJ’s (as she was then) six key points when sentencing for contempt, Hale v Tanner[2000] 1 WLR 2377. In summary they are:
  1. Imprisonment is not the automatic consequence for breach of Court Order;
  2. The Court has a range of disposal options in contempt proceedings;
  3. If imprisonment is appropriate the term should be decided, and then the question of whether to suspend decided separately;
  4. The two essential objectives are to; mark the Court’s disapproval; secure future compliance.
  5. The length of committal must bear a reasonable relationship  to the maximum sentence of 2 years;
  6. Reasons should be given on sentence.
  • In sentencing SB to an immediate term of 3 months imprisonment, HHJ Wildblood said that these breaches were too grave and could not be suspended.
  • He went on to say, “there had to be a clear message where people are given every opportunity to comply with court orders like this but still choose to ignore them.”
  • He concluded saying, “punishment is nothing to do with the dignity of the court, but everything to do with public interest”.

 

 

Appeal by mother against fact finding hearing in private children proceedings

Re A and R (Children) [2018] EWHC 2771 (Fam)

13 September 2018

  • This was an appeal by the mother (‘M’) of A (aged 7) and R (aged 6) against the findings of Miss Recorder Evans at a Fact Finding Hearing as part of bitterly fought s.8 CA 1989 Child Arrangements proceedings.
  • M and the children’s father (‘F’) had both made allegations of domestic abuse (DA) against each other. M had made 5 allegations, and F had made 4 allegations. In summary, the allegations involved assaults, coercive and controlling behaviour, and inappropriate sexual conduct.
  • At the fact finding hearing, Miss Recorder Evans made findings of assault against both M and F.
  • M was granted leave to appeal on four grounds:
  1. Miss Recorder Evans failed to make findings as to the impact of domestic abuse on her and the children;
  2. Miss Recorder Evans should have considered the genesis and development of F’s allegations;
  3. Regard should have been had to the impact of DA on the proceedings;
  4. Miss Recorder Evans’ judgment was unfair as there was clear bias against M.
  • The appeal gave rise to detailed consideration of two aspects of the law:
  1. The correct approach to be taken by courts to DA in the context of proceedings concerning child arrangements; and
  2. The correct approach of Appellate Courts to appeals of this nature.
  • PD12J gives guidance as to the treatment of allegations of DA and harm when a court is considering Child Arrangements and Contact Orders.
  • Baker J includes a useful summary of the correct approach to DA in proceedings which should be read in full at paragraphs [36] – [41].
  • After summarising the law governing the correct approach to appeals of this nature at paragraphs [42] – [44], Baker J stated:

“An appeal to the Family Division is a review not a rehearing. A court can only allow an appeal where the decision of the judge at first instance was wrong or unjust because of some procedural or other irregularity.”

  • It was found that although Miss Recorder Evans omitted to refer to PD12J in her judgment, it was clear that she had it firmly in her mind.
  • The need for judicial continuity as best practice was also highlighted.
  • Appeal dismissed – Baker J dismissed this appeal on all grounds concluding that M has not demonstrated that the Recorder’s findings were wrong, or that there was a material irregularity in the process.

 


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