A short article on Hadkinson Orders and Unless Orders
In the life of a barrister, there are themes, and there are seasons.
A current theme in my cases seems to be non-compliance in financial remedy cases. With that as the backdrop, allow me to take you back to 2025.
Hadkinson orders are alive and well. So too are unless orders — when used properly. The Court of Appeal in Ahmed v Faraj [2025] EWCA Civ 468 has restated, with clarity, that the family courts retain full powers to ensure compliance with their orders, including procedural orders such as Legal Services Payment Orders (LSPOs).
This decision will be of interest to any lawyer managing enforcement in the context of ongoing or pending appeals, and especially where the paying party insists on litigating while refusing to fund the other side’s participation.
The Context
This was the latest stage in protracted financial remedy litigation following final orders made in November 2023 by Sir Jonathan Cohen in Ahmed v Faraj [2023] EWFC 209.
The final order included:
- A lump sum of £6.08 million, payable to the wife by 1 March 2024;
- Ongoing child and spousal maintenance.
The husband was found to have substantial resources, across three main asset classes:
- A $25m debt owed to him by a company (GA), repayable in 2031, and secured against a Knightsbridge property with around £1.5m equity;
- A 59.47% shareholding in IIB Company, valued at £7.55m;
- Alleged £16m in investments, held in various accounts.
At final hearing, H’s position was that the £16m never existed — the suggestion being that letters produced by his CFO were part of a wider attempt to inflate IIB’s apparent financial position during failed acquisition talks. That explanation was rejected. Cohen J concluded that some or all of the money likely existed, even if its present location was unknown.
Appeals and a LSPO
Both H and IIB obtained permission to appeal. H’s appeal focused on the finding that he had access to the £16m and whether that could support the £6.08m lump sum.
In December 2024, W obtained a Legal Services Payment Order for £120,000 + VAT, to fund her legal team in resisting both appeals. H sought to appeal that order, but permission to appeal was refused by Moylan LJ in February 2025. The court accepted that it was appropriate for the LSPO judge to rely on the original findings of wealth — even though those were being challenged on appeal.
Notably, Moylan LJ confirmed that pending appeals did not invalidate or neutralise findings of fact for the purpose of LSPOs or case management.
Despite losing that appeal, H failed to pay the LSPO. That prompted W to apply for an unless order or a Hadkinson order to stay H’s appeal unless the payment was made.
The Application
W’s position was straightforward: H should not be entitled to continue litigating, or to pursue his appeal, while in continuing and deliberate breach of a LSPO. The non-payment was preventing her from having legal representation in the appeals.
The court had to determine:
- Whether it was appropriate to make an unless order or a Hadkinson order in response to H’s default;
- Whether such an order would be proportionate, given the underlying appeal was still pending;
- Whether the court could rely on findings from the first instance hearing, despite permission to appeal having been granted.
The Outcome
Unless Order Refused
The court declined to make an unless order. The reasoning was tactical. An unless order, if made, would have required compliance by a date or else the appeal would be struck out — but any later compliance would trigger an application for relief from sanctions under Denton v TH White Ltd [2014] EWCA Civ 906. That would add delay and further litigation. The court considered that disproportionate.
Hadkinson Order Granted
Instead, the Court made a Hadkinson order, preventing H from progressing with his appeal unless the LSPO was paid.
The test under De Gaffori v De Gaffori [2018] EWCA Civ 2070 was met:
- H was in deliberate breach of the LSPO;
- The breach was ongoing;
- It directly related to the proceedings he was seeking to continue (the appeal);
- He had the means to comply, based not only on the disputed £16m but also on the other asset classes;
- The order was proportionate.
The court noted that a Hadkinson order is not a sanction, but a case management tool to protect the integrity of the proceedings.
She rejected the argument that the court could not rely on the £16m finding. Permission to appeal did not mean the finding was suspended or disregarded. Until overturned, the first instance judgment remained a valid and enforceable factual basis for both enforcement and case management decisions.
What This Means for Practitioners
This is a clear, practical judgment that restates the court’s case management powers in firm terms. Three points in particular are worth drawing out:
- Hadkinson Orders Remain Available
They are not reserved for extreme cases. Where there is a deliberate breach of an order that affects the fairness of the process — especially LSPOs — the court will act. The idea that they’ve fallen out of use is mistaken. - Permission to Appeal Does Not Suspend Compliance
Findings at first instance are not neutered by the grant of permission to appeal. They can and will be used to ground LSPOs, enforcement, and applications like Hadkinson. - Unless Orders Come With Denton Baggage
If you’re advising a client seeking enforcement, be alive to whether a Hadkinson order is actually more effective than an unless order. The latter may lead to delay through a relief-from-sanctions application, even if technically effective.
This decision gives a useful route map for practitioners handling appeals where enforcement remains a live issue —the courts will not tolerate litigants continuing to play the system while refusing to comply with the rules that fund a fair fight.
For assistance in enforcing financial remedy orders, contact clerks@anvilchambers.co.uk