Assoun v Assoun [No. 1] [2017] EWCA Civ 21

28 March 2017

Court of Appeal decision considering the process of making a Hadkinson order: Part I


  • On 22 November 2013 HHJ Brasse made a final order in the parties’ long-running financial remedy proceedings, of which H subsequently fell into breach (which was accepted by H).
  • On 16 November 2015 HHJ Brasse made a without notice Hadkinson Order, preventing H from making a variation application unless and until he remedied his breach. H appealed the decision, arguing that the Hadkinson Order was disproportionate and wrong as he alleged he had insufficient resources to remedy his breach.
  • H was granted permission to appeal on the basis that he had received no formal notice of W’s application. Permission was conditional on H paying a sum into court by way of security.


  • H’s appeal was dismissed.
  • Following Mubarak v Mubarak[2004], the Court must consider six questions:
  • Is the payer in contempt?
  • Is there an impediment to the course of justice?
  • Is there any other effective means of securing compliance with the orders of the Court?
  • Should the court exercise its discretion to impose conditions having regard to the question:
  • is the contempt wilful (and continuing)?
  • If so, what conditions would be appropriate?
  • As a case-management order of last resort, a Hadkinson order is inappropriate as regards substantive issues and cannot be used as a means to achieve quasi-summary judgment.
  • The correct test to be applied is the civil standard of proof.
  • The respondent must be put on notice of such an application; there had been no justification for a without notice application in this case.
  • However, H was found to be in wilful default of the 2013 Order, and had failed to abide by the procedural rules with knowledge of the potential consequences. As such, the Court of Appeal found that there was insufficient evidence to establish a procedural irregularity in granting the Hadkinson Order, which was proportionate in this case.