H v W [2023] EWFC 12014 July 2023

Published: 03/08/2023 13:31


HHJ Reardon KC. This case concerns cross-applications regarding a final financial remedy order made in May 2021 (the 2021 order) by Recorder Anderson. This included an application by H for a further lump sum to compensate him for losses due to W’s alleged attempts to frustrate the order and delay its implementation.

H is aged 64, W is 65. They cohabited from 1996, married in 2014 and separated in 2016. They have one daughter, who is 25. The starting point of this judgment concerns the 2021 order. However, it is worth noting the backdrop of a long history of litigation dating back to 2016, including a contested preliminary fact-finding hearing in respect of the parties’ cohabitation prior to the marriage. By the time of the final hearing, three costs orders had been made against W.

The 2021 order

In essence, the order provided for the parties’ three rental properties (Property A, B and C) to be transferred to H, subject to their existing mortgages. W was to retain the family home; it being noted this was 'an aspiration not a need' and the recorder found it difficult to see how she would be able to fund the mortgage without access to rental income. Lastly, there was a short-term maintenance order payable by H to W, to share the rental income while the parties restructured their finances. The recorder observed that both parties would likely need to sell their assets to generate an income. The 2021 order broadly equated to an equal division of capital.

Applications now sought

H issued the following applications:

  • An application under the Thwaite jurisdiction for a further lump sum payment to compensate him for the losses he says he has suffered.
  • Enforcement of an implementation order, again made by Recorder Anderson in August 2022 (the 2022 order), for periodical payments due to H by W to account for rental payments per the 2021 order and to prospectively enforce any lump sum order under the Thwaite jurisdiction by order for sale in default of payment.
  • An application for committal for breach of W’s undertaking not to borrow against any of the rental properties pending transfer to H.

W’s applications comprised:

  • An application to set aside the 2022 order.
  • Strike out of H’s Thwaite application pursuant to FPR 4.4.

The key events and actions by W since the 2021 order

  • Refusal to authorise and engage in the marketing and subsequent sale communications for many months.
  • Granting new 12-month tenancies on all three of the rental properties over the period July 2021–August 2022.
  • A remortgage of Property B, in breach of the 2021 order.
  • The voluntary surrender of Property A to the mortgage lender in autumn 2022 (later reversed).

All of W’s dealings with the properties were concealed from H and his solicitors, and only eventually discovered from third party communications. W asserts extenuating circumstances to explain her non-attendance at the August 2022 hearing and general conduct, including the ill-health of their daughter and her own poor mental health.


i. W’s set aside application – refused

W’s reasons for not attending the August 2022 hearing were unsatisfactory. Despite W’s confusion as to the correct procedure for filing the application (then acting in person), the delay of eight months between the 2021 order and the application was 'at the very outer range of what might be considered promptness'. W’s application had limited merits in circumstances where the purpose of the August 2022 hearing was to achieve the implementation of the 2021 order, which due to W’s actions were putting H under considerable and ongoing financial disadvantage.

ii. H’s Thwaite application – granted

A lump sum payable by W to H of £100,000 plus the amount outstanding under the additional Property B borrowing.

iii. H’s enforcement application – granted

A final charging order to secure the sums due under the 2022 order. Payable three months from the date of the order before an order for sale is triggered.

iv. H’s committal application – adjourned

Stayed pending outcome of this hearing. In communications post-judgment it was agreed that the committal application be adjourned generally with liberty to restore, to be deemed withdrawn upon payment of all sums due to H.

v. Costs

W to pay H’s costs on a standard basis.

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