SS v RS
[2023] EWFC 32
H v W
14 July 2023
[2023] EWFC 120 (B)
Family Court
A husband and wife were splitting assets after a divorce. The wife deliberately delayed things, making the husband lose money. A judge made the wife pay the husband back the money she made him lose and said if she didn't, she'd have to sell her house to do it. The judge also made the wife pay the husband's legal fees.
Key Facts
- •Final financial remedy order (2021 order) not fully implemented.
- •Applicant (H) seeks compensation for respondent's (W) alleged attempts to frustrate the order.
- •Disputes center on characterizing conduct, whether W's actions caused H loss, and appropriate remedy.
- •Multiple applications filed by both parties, including Thwaite application for compensation, enforcement applications, and application to set aside the 2022 order.
- •W granted new tenancies and borrowed against properties in breach of undertakings and orders.
- •Significant delays in property sales, additional legal costs incurred (£55,000).
- •W's health issues and daughter's health problems cited as extenuating circumstances.
Legal Principles
Thwaite jurisdiction allows adjustment of an executory order if inequitable to enforce in prevailing circumstances.
Thwaite v Thwaite [1981] 2 FLR 280
Application to set aside an order requires prompt action, good reason for non-attendance, and reasonable prospect of success.
FPR 2010, r.27.5
Barder principles apply to unexpected changes in circumstances since an order was made, requiring stringent test; Thwaite jurisdiction may be an alternative remedy if the change of circumstance was foreseeable and culpably caused by the respondent.
Barder v Barder [1988] AC 20, BT v CU [2022] 1 WLR 1349
Court can make a charging order over property to secure a judgment debt.
s1 of the Charging Orders Act 1979
Court can make an order for sale of the respondent's property under MCA 1973, s24A to enforce a lump sum order.
MCA 1973, s24A
Costs generally follow the event, but the court considers conduct of the parties and success on parts of the case.
FPR 28.3(5), Baker v Rowe [2010] 1 FLR 781, Solomon v Solomon [2015] EWHC 1652, CPR r.44.2(4)
Outcomes
W's application to set aside the 2022 order refused.
Unsatisfactory reasons for non-attendance, failure to act promptly, and lack of reasonable prospect of success.
H's Thwaite application granted in part; lump sum order of £100,000 plus outstanding borrowing against Property B awarded.
W's conduct caused significant loss to H, particularly regarding Property A's sale; outcome maintains fairness and original order's intention.
Final charging order made on W's home to secure sums due under the 2022 order.
Appropriate to secure outstanding debts; W given 3 months to raise the amount before default order for sale is triggered.
Default order for sale of W's home made under s24A MCA 1973 if lump sum order not paid within 3 months.
Fair in circumstances, given W's conduct and previous anticipation of potential home sale.
W ordered to pay H's costs, assessed at £30,000 on the standard basis.
W's conduct throughout; H's costs are proportionate and do not significantly impact W's financial position.