16 April 2025

Conditional Appeals in Family Law: A Rare but Powerful Tool – Lessons from Ahmad v Faraj [2025] EWCA Civ 468

A decision from the Court of Appeal in Ahmad and IIB Group Holdings v Faraj [2025] EWCA Civ 468 has caused a stir among family law practitioners. In an unusual but not unprecedented move, the court held that the husband could not proceed with his financial appeal unless and until he complied with a Legal Services Payment Order (LSPO). The message is clear: litigants cannot ignore financial obligations imposed by the court and still expect access to the appeal courts.

The Background

This judgment followed a sprawling financial remedy case between Mr Ahmad (H) and Ms Faraj (W), with IIB Group Holdings also entangled due to property ownership and funding arrangements. The husband had been ordered to pay a substantial lump sum to the wife following findings that he had assets of over £20 million, including a controversial £16 million in disputed accounts.

To ensure parity in representation at the appeal stage, the court made a Legal Services Payment Order (LSPO) requiring H to pay £120,000 + VAT toward W’s legal costs. The wife lacked means; the husband, according to the court, did not.

But H did not pay. Despite having permission to appeal and a stay on enforcement of the lump sum, his refusal to comply with the LSPO put him on a collision course with the court.

What Did the Court Do?

The court deployed a rarely-used but powerful procedural device: a Hadkinson order, preventing the husband from being heard on his appeal until he purged his contempt by paying the LSPO. In the alternative, the court considered but declined to issue an "unless order" (which would have automatically dismissed the appeal unless payment was made).

As Lady Justice King made clear:

"The husband's failure to pay £120,000 + VAT to the wife is deliberate and wilful."

The Hadkinson order was deemed proportionate and necessary to ensure the wife’s access to justice and maintain the integrity of the court’s process.

What Is a Hadkinson Order?

A Hadkinson order is a form of case management order that prevents a party from being heard in court while they remain in contempt—typically by failing to comply with a previous court order. The name derives from Hadkinson v Hadkinson [1952] FLR Rep 287, where the Court of Appeal held that disobedience to a court order could justify limiting a party's right to participate in proceedings. These orders are exceptional and must meet strict criteria: the party must be in contempt; the contempt must obstruct the course of justice; and denying a hearing must be proportionate. In family law, Hadkinson orders are often deployed to secure compliance with financial orders—especially where one party seeks to exploit their financial advantage to the detriment of the other.

Is This Common?

No. While Hadkinson orders are part of the legal arsenal, they are described as a "case management order of last resort" (see Assoun v Assoun (No 1) [2017] 2 FLR 1137). They are reserved for situations where a party is in contempt and their behaviour impedes the course of justice.

That said, the Court of Appeal has signalled that where an LSPO has been properly made and appealed without success, failure to pay it will not be tolerated.

Why It Matters

This case is a shot across the bows for financially dominant parties who attempt to weaponise their wealth. As Peter Jackson LJ stated in De Gaffori v De Gaffori [208] EWCA Civ 2070:

"Failure to pay a legal services payment order is an impediment to justice."

The court’s message is unmistakable:

  • You cannot starve your opponent of legal funding.
  • You cannot defy a court order and still expect to be heard.
  • You cannot hide behind appeals to delay enforcement.

Practical Takeaways for Practitioners

  1. Take LSPOs seriously. Failure to pay can result in Hadkinson orders or strike-out consequences.
  2. Appeals are not an escape route. Even where permission to appeal is granted, compliance with ancillary orders may be a precondition.
  3. Use Hadkinson requests wisely. They are potent tools but must meet strict criteria: proven contempt, impact on justice, and proportionality.
  4. Advise clients early. Especially those with resources, that non-compliance carries reputational, procedural, and financial risk.
  5. Expect robust case management. The family courts are increasingly assertive in managing litigation conduct and ensuring fairness.

Conclusion

Ahmad v Faraj serves as a stark reminder that access to justice cuts both ways. A party cannot pursue their own appeal while denying their ex-spouse the means to respond. In a financial remedy landscape where inequality of arms is a real concern, the conditional appeal offers a dramatic, but justified, judicial solution.

17 January 2025

Navigating Maintenance Pending Suit and LSPOs: Lessons from HA v EN [2025] EWHC 48 (Fam)

The High Court's decision in HA v EN provides essential guidance on applications for Maintenance Pending Suit (MPS) and Legal Services Payment Orders (LSPOs) in high-net-worth divorce proceedings. The judgment offers valuable insights into the interplay between interim maintenance, disclosure obligations, and the procedural expectations for securing legal funding during financial disputes.

Case Overview: HA v EN

The case centred on a wife’s applications for MPS and an LSPO. She argued that her husband, a wealthy entrepreneur, had failed to provide adequate financial support during the proceedings and had not fully disclosed his assets.

Key Issues:

  1. MPS Application:
    The wife requested £12,000 per month to meet her immediate living expenses, citing the husband’s alleged wealth and her financial dependence.
  2. LSPO Application:
    She sought a substantial sum to cover her unpaid legal fees and future litigation costs, asserting that she could not secure alternative funding.
  3. Disclosure Gaps:
    The husband’s financial disclosure was challenged for being inconsistent, particularly regarding the true value of his business interests.

Key Findings

  1. Maintenance Pending Suit (MPS):
  • Pragmatic Award:
    Despite the wife’s failure to provide a detailed budget, the court awarded her £12,000 per month, emphasising a “broad-brush approach” to interim support.
  • Rejection of “Unless Order”:
    The wife’s attempt to seek an “unless order” requiring the husband to pay or face procedural penalties was dismissed. The court clarified that MPS orders must remain straightforward and cannot extend to new procedural remedies.
  1. Legal Services Payment Order (LSPO):
  • Application Standards:
    The court evaluated the wife’s LSPO application under Sections 22ZA and 22ZB of the Matrimonial Causes Act 1973, focusing on whether she could access alternative funding and the reasonableness of her request.
  • Award Granted:
    Recognising the wife’s inability to pay her legal fees and the husband’s capacity to contribute, the court approved a significant LSPO.
  1. Disclosure Assumptions:

The court highlighted its power to make “robust assumptions” when disclosure is inadequate. The husband’s lack of transparency regarding his business valuations led the court to adopt a cautious approach favouring the wife.

Guidance for MPS and LSPO Applications

  1. Maintenance Pending Suit (MPS):
  • Prepare a Detailed Budget:
    While the court can adopt a broad approach, applicants should submit a clear and realistic interim budget to support their claims.
  • Focus on Immediate Needs:
    MPS is designed to meet basic living expenses during proceedings. Ensure that claims reflect reasonable and immediate requirements.
  • Avoid Procedural Overreach:
    Innovative remedies, such as “unless orders,” may be rejected if they fall outside established statutory frameworks.
  1. Legal Services Payment Orders (LSPOs):
  • Demonstrate Lack of Alternatives:
    Applicants must show they cannot secure litigation funding from other sources, such as loans or family contributions.
  • Justify the Amount:
    Requests should detail how the funds will be spent, with a focus on proportionality to the case’s complexity.
  • Highlight Reasonableness:
    Ensure the requested amount aligns with the applicant’s financial needs and the respondent’s ability to pay.
  1. Address Disclosure Early:

Non-disclosure can complicate proceedings and lead to adverse assumptions. Parties should be encouraged to provide full and frank disclosure from the outset.

Lessons from HA v EN

The judgment reinforces several critical principles:

  • Transparency is Key: Non-disclosure can significantly influence interim awards and broader financial outcomes.
  • Broad Judicial Discretion: Courts balance fairness with practicality, especially when immediate support or legal funding is required.
  • Flexibility in Interim Relief: While the court can adapt its approach, well-prepared applications remain essential to achieving favourable outcomes.

Conclusion

HA v EN highlights the complexities of securing interim financial relief in high-net-worth divorces. By focusing on transparency, realistic claims, and procedural rigor, practitioners can navigate MPS and LSPO applications more effectively. This case serves as a reminder of the courts’ commitment to fairness while maintaining a practical approach to financial disputes.

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