WJB v HJM
[2024] EWFC 116 (B)
L v O
26 January 2024
[2024] EWFC 6
Family Court
A husband wants to change a divorce agreement, but his ex-wife wants him to pay what he owes and cover her legal bills first. The judge said he doesn't have to pay the old debt right away but does have to pay some money to cover the wife's legal costs because he lives mostly outside the UK and could avoid paying if he loses the case.
Key Facts
- •Husband seeks variation/discharge of 2021 financial remedy order based on a 'Barder event' and Thwaite jurisdiction.
- •Wife counters with applications for a Hadkinson order and security for costs.
- •Husband's substantive application is listed for July 2024.
- •Outstanding lump sum payments totaling US$6 million, with US$6 million frozen in a country C bank account.
- •Husband's extensive international travel and asset holdings raise jurisdictional questions.
- •Wife seeks £759,563 interest on outstanding lump sums (Hadkinson order) and £637,882 security for costs.
Legal Principles
Barder v Barder principle of supervening events invalidating the basis of a financial remedy order.
Barder v Barder, Caluori intervening [1988] AC 20
Thwaite jurisdiction allowing refusal to enforce an executory order if inequitable.
Thwaite v Thwaite [1982] Fam 1
Hadkinson order to bar further proceedings until compliance with existing orders.
Hadkinson v Hadkinson [1952] P 285
Security for costs in family proceedings is rare, but possible in exceptional circumstances or where a Barder application is made.
FPR 2010, rule 28.3(5) and (9)
Determining 'residence' for security for costs purposes under FPR 2010, rule 20.7(2)(a)(i) considers habitual residence.
MG v AR (Security for Costs) [2021] EWHC 3063 (Fam); Lazarychev (and others) v Lyndou [2024] EWHC 8 (Ch)
Outcomes
Stay of lump sum payment orders granted upon funds being deposited in escrow account in country C.
To avoid interfering with the freezing order in country C and facilitate the transfer of funds to escrow.
Hadkinson order refused.
While husband is in contempt, it is not considered a clear impediment to justice or proportionate to make such an order given the circumstances and relative financial positions.
Security for costs order granted for £480,000.
Husband is resident outside the jurisdiction; there's a real risk of non-enforcement of costs order; husband has sufficient resources, although liquidity is an issue; order must not stifle the claim.