Court bars millionaire banker who refused to pay maintenance from making further applications

A millionaire banker has suffered defeat in the Court of Appeal in his bid to overturn a Hadkinson order and to vary maintenance paid to his ex-wife.

Millionaire banker Yan Assoun has suffered defeat in the Court of Appeal in his bid to overturn a Hadkinson order and to vary the maintenance he was ordered to pay to his ex-wife.

Background

Following a final hearing in 2013, Yan Assoun was ordered to pay $380,000pa in child and spousal maintenance to his ex-wife Anais. This order was made on the basis that Mr Assoun’s annual income was found to be in excess of $1m.

Almost immediately, Mr Assoun breached the order by failing to make the full payments and falling into arrears. His appeal against the original order was dismissed and he took extreme steps to avoid the order being enforced in the US (where both parties were living at this point) including by hiring private detectives to follow Ms Assoun’s friends and family, and by attempting to argue that the original order was fraudulently obtained.

Despite Mr Assoun’s continued and admitted breach of the maintenance order, he applied to the English courts to vary downwards his maintenance payments. Ms Assoun then applied to the court for a Hadkinson order and this was granted in November 2015. Mr Assoun appealed against this order.

What is a Hadkinson order?

A Hadkinson order stems from a 1952 case of the same name. It prevents a party who is in breach of a court order from being heard by the court until they have complied with their obligations and rectified any breach.

It is considered a draconian and rarely used order as it goes against the public policy principle of access to justice, and can be considered a remedy of last resort.

Judgment

The appeal was dismissed and the test for the granting of a Hadkinson order was set out as follows:

  1. Is the respondent in contempt of court?
  2. Does this contempt create an impediment to course of justice?
  3. Is there any other means of securing compliance with the court’s orders?
  4. Is the contempt wilful and continuing?

The court found that the test was passed. Mr Assoun admitted breach and was in contempt of court. There was a clear impediment to justice as Ms Assoun was not receiving the ordered sums. There was no other means of securing compliance – Mr Assoun had been ordered to pay a sum into the Texan Court to be held for Ms Assoun pending the appeal but had failed to do this and it was instead being held by his US Attorneys.

Mr Assoun was found to have "been in wilful default, to have failed to discharge his obligation to provide full and frank disclosure and to have used every tactical device that he could to frustrate the wife and the English courts." The court found that he had had the resources to pay, having sold a property in New York for more than $3.2m in 2014 and having failed to provide a viable explanation for his solely-owned business stopping paying him his $1m per year salary.

Non-compliance and enforcement

The judgment makes explicitly clear that Hadkinson orders are to be rarely granted and are not going to be applicable in every case. The use of the order in Assoun can be contrasted with the much publicised case of Michelle and Scot Young, in which Ms Young was denied her application for a Hadkinson order to prevent Mr Young participating in the final hearing until he complied with certain court orders. Mr Young had already been committed to prison for 6 months for his non-compliance with court orders in that case, but the judge declined to make a Hadkinson order as the court needed to get to the bottom of the parties’ financial affairs.

It is also not a magic bullet for Ms Assoun. While it may prevent Mr Assoun from pursuing his variation application to delay payment further, it may be that Mr Assoun continues to refuse to pay. Nevertheless, it does underscore the fact that the court will have little patience with a non-payer attempting to abuse the legal process.

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