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.