Read the full judgment text of HCMP 1755/2015 on BabelCite. This High Court CFI judgment was delivered on 23 September 2015 before Hon Lam VP and Barma JA.
Family law – divorce – contempt of court – Hadkinson principle – leave to appeal – purging contempt – ancillary relief – Form E – maintenance pending suit. The Petitioner (THY) sought divorce from the Respondent (CHFR) based on unreasonable behaviour. The Respondent applied for leave to file an Answer and Cross Petition out of time but was barred by Judge Melloy due to persistent non-compliance with court orders regarding the filing of affidavit of means, specifically Form E and affirmation in response to maintenance pending suit. The Judge exercised her power under the Hadkinson principle, which allows the court to refuse to hear a contemnor when he is in continuing contempt. The Respondent had been found guilty of contempt and sentenced to prison for 7 days. The Court of Appeal, comprising Hon Lam VP and Barma JA, considered whether the Hadkinson sanction should apply and whether the Respondent had purged his contempt. The Court cited Hadkinson v Hadkinson [1952] P 285 and Motorola Credit Corporation v Uzan (No 2) [2004] 1 WLR 113, noting that refusing to hear a party is a strong thing justified only by grave considerations of public policy. The Court emphasized that the Hadkinson sanction should be a last resort and the interest of justice is best served by hearing or refusing to hear a party in contempt. The Court noted that if the Respondent purges his contempt, the Hadkinson sanction should cease to apply. At the time of the hearing, the Respondent had not filed his Form E but promised to do so. He filed his Form E on 18 September 2015. The Court held that the Respondent had now purged his contempt. Consequently, the Court granted leave to the Respondent to appeal the order of Judge Melloy. The Court reserved the question of costs of this application to the substantive appeal. The appeal was listed for hearing on 20 October 2015 before Lam VP, Barma JA and another judge. The Respondent was reminded to file and serve his notice of appeal within 7 days. The Petitioner was instructed to lodge and serve her skeleton submissions in the appeal within 7 days thereafter. The Respondent appeared in person while the Petitioner was represented by Mr Tim Parker, instructed by Haldanes. The Court also gave leave to the Petitioner and her solicitor to inspect the Form E in the court file in the present proceedings to avoid arguments. The Court considered that it is in everybody’s interest that the appeal be expedited. The appeal was not complicated. The Court directed the Respondent to lodge and serve his skeleton submissions and appeal bundle at the same time when he files and serves his Notice of Appeal. The Court found that the Judge was undoubtedly correct in exercising her discretion in the way she did at the time, as the Respondent had not yet purged his contempt. However, with the purge of the contempt, the court should not preclude the Respondent from filing his Answer and Cross Petition. The Court held that the Respondent is plainly wrong in suggesting that he had purged his contempt by serving 7 days in prison. Until he filed and served his Form E, he remained in contempt. The Court viewed that the Respondent’s non-compliance with such orders impeded the course of justice and prejudiced the efficient and fair conduct of the proceedings in relation to ancillary relief. The Court referred to CWG v MH [2014] 4 HKLRD 141 where the relevant principles were set out. The Court also referred to Mubarak v Mubarik (No 2) [2007] 1 WLR 271 where notwithstanding the contempt of the husband, the court still decided to hear him on conditions. The Court referred to X Ltd v Morgan-Grampian (Publishers) Ltd [1991] 1 AC 1 and Arab Monetary Fund v Hashim (unreported) 21 March 1997 regarding the discretion to decline to entertain an appeal against the order. The Court concluded that leave to appeal should be granted. The Respondent is reminded that he should file and serve his notice of appeal within 7 days from the handing down of this judgment. The appeal is not complicated and we shall list it for hearing on 20 October 2015 at 9:30 am with an estimate length of 30 minutes. The Petitioner shall lodge and serve her skeleton submissions in the appeal within 7 days thereafter. The Respondent should also lodge and serve his skeleton submissions and appeal bundle (3 sets) at the same time when he files and serves his Notice of Appeal. The Court gave leave to the Petitioner and her solicitor to inspect the Form E in the court file in the present proceedings. The Court saw no reason why the Form E should not be inspected by the Petitioner or her solicitor. The Respondent should have served a copy of the Form E on the Petitioner. In order to avoid arguments, we give leave to the Petitioner and her solicitor to inspect the Form E in the court file in the present proceedings. The Court held that the Respondent has now purged his contempt. Notwithstanding the submission of Mr Parker that it was in any event within the Judge’s discretion to refuse the Respondent’s application, we think it is reasonably arguable that with the purge of the contempt the court should not preclude the Respondent from filing his Answer and Cross Petition. The Court granted leave to the Respondent to appeal. The Court reserved the question of costs of this application to the substantive appeal. The Court listed the appeal for hearing on 20 October 2015.
Legal issues: Hadkinson principle application · Purging of contempt
Outcome: Leave to appeal granted; appeal listed for hearing on 20 October 2015
Cited by 7 cases · Cites 1 case