Peel J accepts the existence of the Thwaite jurisdiction. Where the landscape on the ground was very different from that which was envisaged at the time of the order an executory order could be reframed under the Thwaite jurisdiction. The jurisdiction should be used sparingly.

Summary

Proceedings have been running since 2013. W had not participated in the litigation since 2022. There is a significant litigation background.

H 73, W 43. Married in 2005. Two children 19/17. Both Russian nationals. W moved to England and took up residence in May 2012.

In May 2013, W applied for financial provision in Russia. In September 2013, the Russian court upheld the post-nuptial agreement. W was provided £100,000 by way of capital, against H’s wealth of £3.4bn at the time of the post-nuptial agreement.

In May 2014, W applied under Part III of the MFPA 1984 for leave to bring a financial claim in this jurisdiction. Leave was granted. In November 2014, H’s application to set aside was dismissed. In April 2015 Moor J provided that W’s Part III claim was to be limited to her needs, generously assessed.

In February 2016, the parties negotiated, and an agreement was reached in March 2016. H sought to resile from the agreement, and W issued a Notice to Show Cause. In July 2016, there was a contested hearing before Moor J. The key issue was whether W intended to remain resident in England with the two children until they both reached 18 (2024). Moor J was satisfied W did so intend.

In July 2018, W and the children left this jurisdiction and travelled to Moscow. W did not return to England. W remarried an Armenian citizen and obtained Armenian citizenship. W is now a permanent resident of Armenia and runs a business there. The eldest child is at school in Switzerland and stays with H in the holidays. The youngest child lives with H in Moscow, where he is at school.

Part of the agreement and subsequent order involved Ravendark transferring a property to W so that W could provide a home for the children in England, where she intended to stay until 2024. Mr Justice Peel sets out the relevant parts of Moor J’s 2016 judgment at [14]. H did not comply with the order, and another round of litigation ensued which included a decision from the Court of Appeal.

In November 2021, at the appeal before the Court of Appeal, W advanced a constructive trust argument. This argument had not been advanced at trial, so the Court of Appeal remitted the matter back for a rehearing. In November 2021, after the appeal, Moor J made case management directions and joined Olpon (R7). W did not comply with the directions. In June 2023, Peel J ordered that unless W filed her Points of Claim by 4 pm on 6 July 2022 and paid the costs thrown away on 8 June 2022, her claim for (i) a declaration that H is the beneficial owner of the property, and (ii) assignment to her of the loan made by Olpon to Ravendark, would be struck out.

W re-instructed lawyers and filed her points of claim in time. Since filing the points of claim on 6 July 2022, there was no engagement by W.

On 20 November 2023, there was further case management. Peel J listed the matter for trial and made an unless order against W. Unless W complied with an order to file a narrative statement and provide certain specific disclosure by 12 February 2024, her claims would be struck out. The judge provided for service by email, Instagram, text and to her former solicitors.

On 12 February 2024, W’s French lawyers emailed Peel J stating (i) they had been instructed on 8 February 2024, (ii) W had not received the November 2023 order, they had obtained it from H’s lawyers on 9 February 2024, and (iii) they needed additional time. Peel J refused the informal request for additional time and indicated that he was satisfied the November 2023 order had been served and that the unless consequences were automatic. He informed the French lawyers that W would need to make an application for relief. W did not make an application for relief.

On 10 July 2024, Mr Justice Peel determined all of H’s various applications and concluded matters.

Thwaite jurisdiction

Mr Justice Peel summarised the jurisdiction as follows:

‘The essence of the jurisdiction is that the court may adjust an executory order (i.e. before it has been complied with) if it would be inequitable not to do so, most commonly where there has been a significant and necessarily relevant change of circumstances since the order was made.’ [55]

Peel J acknowledged that doubt had been expressed by Mostyn J as to the existence of the Thwaite jurisdiction in SR v HR [2018] EWHC 606 (Fam), but he accepted, for the purposes of this case, that the jurisdiction does exist, although it should be used sparingly; [55]. Peel J’s acceptance of the Thwaite jurisdiction is limited by the following factors: (i) no evidence was heard, and (ii) the facts of this case are unique including W remarrying, living in Armenia and the children now being in the father’s care. Peel J described the circumstances of this case as exceptional, and as such, they justified the order being reframed; [57]⁠(v).

Outcome

1. W’s applications which had been subject to the unless order were confirmed to have been automatically struck out.
2. W’s enforcement application was dismissed.
3. H’s Thwaite application was allowed.
4. W’s application to strike out H’s Thwaite application was struck out.
5. Ravendark’s application for a declaration that it is the beneficial owner of the Surrey property was declined. No evidence had been heard, making it inappropriate to determine the issue and, in any event, due to W’s claims being struck out and H’s Thwaite application being allowed, there was nothing in dispute between the parties that required determination.
6. The freezing order contained in the August 2019 order was discharged.

Costs

The respondents agreed that the starting point for the joined parties was a clean sheet of paper. No respondent sought costs against each other. All parties sought costs against W.

Peel J made an order that W pays the following:

1. H’s costs from September 2022 on an indemnity basis due to W’s approach to the litigation being so unreasonable it warranted the higher basis of assessment. H was awarded just under 90% of his costs on an indemnity basis for the relevant time (£150,000).
2. Olpon were awarded just under 90% of their costs (£130,000), again on an indemnity basis.
3. Ravendark were awarded 50% of their costs on the standard basis, no payment on account. Peel J’s decision was based on Ravendark’s previous conduct and findings made against them at previous hearings. In his assessment, Ravendark bore some responsibility for the costs incurred up to the appeal in September 2022.

Held

1. The consequences of an unless order were automatic.
2. An executory order could be reframed under the Thwaite jurisdiction where the landscape on the ground was very different from that which was envisaged at the time. The jurisdiction should be used sparingly. The facts of this case were exceptional and justified the order being reframed.