What are ‘Unless Orders’ And How Do They Secure Litigants’ Compliance?

Litigating parties sometimes question what happens if the other party simply refuses to obey the court. Reassuringly the courts possess an inherent power to regulate and control the procedural regime in order to streamline the courts’ administrative process whilst carrying out substantive justice.

The Civil Procedure Rules (CPR) provide for case management powers to make directions and sanction non-compliance with these directions. In order to secure compliance with directions, especially in the absence of an alternate effective remedy, the court employs ‘Unless Orders’, also known as ‘Hadkinson Orders’ which emerged in the case of Hadkinson v Hadkinson [1952]. 

These coercive orders are passed against parties in contempt or those who fail to comply with a previous court order within deadline. Unless Orders preclude a party from proceeding until they cease their disregard of the court’s authority and agree to abide by the stipulated directions.

What is the underlying rationale for Unless Orders?

Lord Justice Denning highlighted the underlying rationale behind this ostensibly bold solution, stating that it originated from necessity to be proportionate to and work in conjunction with preservation of pubic policy. Thereby, the courts have generally limited its use to those cases that impede the course in absence of reasonable and compelling circumstances.

The nature of the order is automatic whereby failure to comply on behalf of the party leads to immediate consequences, for instance, striking out a claim. This can be fatal for the defaulter as the immediate nature of the order gives ground for the opposing party to procure final judgement. However, CPR allows for relief from sanction if reasonable circumstances existed that frustrated the party’s compliance.

Courts have been bolstering compliance in recent years

The courts have increasingly sought to make sure that the authority of the court is not undermined and the parties respect the directions that flow from judicial command. In Marcan Shipping (London) Ltd v Candida Corpn & Anr [2007], the court highlighted that Unless Orders are effective without further action on part of the opposite party. The court will not give leverage to the defaulter unless relief has been applied for or the court suspects the existence of exceptional reasons. Therefore, circumventing the effect of these orders is made difficult and subject to scrupulous scrutiny of the court.

In a recent ruling, M v M [2010], a Russian divorced wife sought a financial relief order in England under Part III of the Matrimonial and Family Proceedings Act 1984 but the husband failed to give full disclosure or an appropriate affidavit in response to the wife’s application for interim maintenance, and also did not present himself during the proceedings. This led the court to impose an Unless Order to secure the husband’s compliance and deter him from his continuing breach.

Another notable instance of the use of an unless order was in Kevythalli Design Limited v Ice Associates Limited [2009], where the gravity of Unless Orders was reinforced as the defendant lost, owing to a delay of 25 minutes in submission of amended defence and counterclaim draft. The defendant’s attempt to have the order set aside was unsuccessful, thereby paving way for the claimant to receive judgement on its claim after having the defendant’s defence and counterclaim struck out.

For specialist advice about unless orders or advice into bringing or defending a litigation claim contact Peter Gourri today by email PGourri@rollingsons.co.uk or telephone 0207 611 4848.