The very existence of the Thwaite jurisdiction is controversial.

Thwaite, Benson and L v L

Its origins are (unsurprisingly) found in Thwaite v Thwaite [1981] 2 FLR 280. A consent order was made for the transfer of the matrimonial home in England to the wife on the basis that she would be returning from Australia to live in it with the children. Having returned to England, shortly thereafter she removed the children from England and returned with them to Australia. The husband declined to complete the transfer of his interest in the home on the ground that he had agreed to its transfer on the basis that the wife would make a home here for the children. He applied to the court for a variation of the consent order. The wife countered with an application to enforce the order for the transfer of the husband’s interest in the home. The registrar dismissed the husband’s application, who appealed: (1) the registrar’s decision; and (2) the consent order (out of time), to the Court of Appeal.

At p 284 Ormrod LJ commented that:

‘Where the order is still executory, as in the present case, and one of the parties applies to the court to enforce the order, the court may refuse if, in the circumstances prevailing at the time of the application, it would be inequitable to do so: Mullins v. Howell (1879) 11 Ch D. 763 and Purcell v. F. C. Trigell Ltd. [1961] 1 Q.B. 358 at pp. 367 and 368. Where the consent order derives its legal effect from the contract, this is equivalent to refusing a decree of specific performance; where the legal effect derives from the order itself the court has jurisdiction over its own orders per Sir George Jessel MR in Mullins v Howell (1879) 11 ChD 763 at p. 766.’

The Court of Appeal held: (1) it was manifestly inequitable to enforce the unexecuted transfer of property order against the husband; and (2) the judge had been entitled, in his discretion, to make a new order for ancillary relief in favour of the wife, notwithstanding the refusal of the wife to consent to his doing so. His jurisdiction arose from the fact that the wife’s original application for ancillary relief was still before the court and awaiting adjudication.

It is the latter aspect of the jurisdiction that has proved the more controversial.

In Benson v Benson (Deceased) [1996] 1 FLR 692, Bracewell J described (at p 696) the Thwaite principle as being:

‘the judge has an inherent jurisdiction to make a fresh order for ancillary relief where the original order remains executory if the basis upon which it was made has fundamentally altered.’

In L v L [2006] EWHC 956 (Fam), [2008] 1 FLR 26 Munby J (as he then was) agreed with Bracewell J and went on to state (original emphasis):

‘[67] Merely because an order is still executory the court does not have, any more than it has in relation to an undertaking, any general and unfettered power to adjust a final order – let alone a final consent order – merely because it thinks it just to do so. The essence of the jurisdiction is that it is just to do – it would be inequitable not to do so – because of or in the light of some significant change in the circumstances since the order was made.’

Bezeliansky

The existence and exercise of the jurisdiction has not returned to the Court of Appeal save for Bezeliansky v Belianskaya [2016] EWCA Civ 76, where permission was refused to appeal the first instance decision of Moor J. As such, it cannot be relied upon as authority given Practice Direction (Citation of Authorities) [2001] 1 WLR 1001 at para 6.2 and FPR PD 27A, para 4.3A.2, a point made by Recorder Allen QC in G v C [2020] EWFC B35 at [41]. Bezeliansky was, however, cited in US v SR (No 4) (Executory Mainframe Distribution Order: Change in Circumstances: Extent of the Court’s Ability to Revisit Terms) [2018] EWHC 3207 (Fam) per Roberts J and in Kicinski v Pardi [2021] EWHC 499 (Fam) per Lieven J (the successful appeal from G v C) in which she observed at [29] that as a fully reasoned decision of three members of the Court of Appeal, including the current President, it was a decision that ‘carries the very greatest weight’.

In Bezeliansky the parties had married in 2000 and divorced in 2009. Holman J approved a consent order concluding the financial remedy proceedings in early 2013. The consent order provided inter alia that the husband would: (1) transfer properties in Monaco and Moscow to the wife; (2) retain a property in Paris (held by a company); and (3) pay the wife child maintenance of £270,000 pa. In the 2 years that followed, none of the properties had been transferred to the wife and arrears of child maintenance of £253,000 had accrued. The wife also discovered the husband had taken out a loan (without her knowledge) against the Moscow property and subsequently entered into an agreement to sell the same property to a business associate.

The wife applied to vary the capital provision elements of the consent order. Moor J ordered in 2015 that: (1) the husband would retain the Moscow property; (2) the shares in the company which owned the Paris property would be transferred to the wife and the property owned by the company would then be sold on the open market; and (3) the arrears of child maintenance would be paid to the wife from the proceeds of sale of the Paris property.

The Court of Appeal was concerned inter alia with the husband’s application for permission to appeal against the order that had varied the capital provision of the consent order on the basis that Moor J was wrong to hold that he had jurisdiction to vary the terms of the original consent order. It was submitted that Thwaite dealt solely with the court’s jurisdiction to opt to refuse to enforce a consent order and was not authority in relation to there being any jurisdiction to set the original order aside. The wife submitted that Moor J did have jurisdiction and that where an order remains executory as a result of a party frustrating implementation those circumstances will likely justify intervention.

Refusing the husband’s application for permission to appeal, McFarlane LJ concluded that Moor J had been correct in finding he had the power to vary the terms of the consent order under the Thwaite jurisdiction. At [37] he observed:

‘It is plain to me that Moor J was entirely correct in holding that the authority of Thwaite v Thwaite to the effect that “an executory order can be varied in the way that Mr. Chamberlayne invites me to do” was entirely sound and the appellant’s submission that the judge was wrong in his interpretation of this authority is completely unsustainable.’

He continued as follows:

‘[39] … With respect to cases where there is an undertaking or an order that is still executory the approach to determining whether or not to set aside or vary the order is, as the appellant submits, based upon it being inequitable to hold to the terms of the original order in the light of a significant change of circumstances. Given that this is a case about an executory order, it is not necessary to engage any further with the appellant’s wider submission regarding the test where the jurisdiction may arise in other circumstances. In any event I agree with Mr. Chamberlayne that the circumstances justifying intervention are likely to be met where an order remain executory as a result of one party frustrating its implementation.’

Bezeliansky therefore confirmed that Thwaite not only provides authority for a court to opt to refuse to enforce an executory order – i.e. that it acts as a ‘shield’ rather than a ‘sword’ – but also extended to being able to set aside or vary the order and hence permits the substantive amendment of an executory order. Bezeliansky was the first time the court’s power to vary rather than merely refuse to enforce an executory order was confirmed after argument on the point (albeit on a permission application where only one party was represented by counsel).

Subsequently, the Thwaite jurisdiction has been considered in a number of reported decisions at High Court and Circuit Judge level.

SR v HR, US v SR and Kicinski v Pardi

SR v HR (Property Adjustment Orders) [2018] EWHC 606 (Fam), [2018] 2 FLR 843 was a decision of Mostyn J allowing an appeal against a decision of HHJ Sharpe. A consent order was approved concluding the financial remedy proceedings in 2012 and later varied by consent in 2013. The consent order included property adjustment orders in respect of three properties which were not subsequently implemented. In October 2017, HHJ Sharpe made an order which made significant changes to the original consent order on the basis that the order remained executory. The husband appealed. Mostyn J allowed the appeal stating inter alia that: (1) Thwaite (together with the authorities cited in Thwaite itself in support of the existence of the jurisdiction) gave ‘no support to the notion that if the court, exercising its equitable jurisdiction, refuses to enforce an order it gains the power to make a completely new one’ (at [12]); and (2) ‘any application under the principle in Thwaite should be approached extremely cautiously and conservatively’ (at [13]).

US v SR (No 4) (Executory Mainframe Distribution Order: Change in Circumstances: Extent of the Court’s Ability to Revisit Terms) [2018] EWHC 3207 (Fam) was a decision of Roberts J. At the final hearing in 2014, the wife expressed her intention to remain living in the United Kingdom, but returned to Russia shortly after the hearing. The final order, which was not made until May 2015, reflected the substantive nature of the judgment, but took into account the wife’s later move. The Russian property market subsequently collapsed and therefore the value of the Russian properties was significantly lower than had been anticipated.

Roberts J noted that in SR v HR Mostyn J did not appear to have been referred to Bezeliansky or the earlier case of L v L and neither authority is referenced in his judgment. In any event, she expressed confidence that the approach of Munby J (as he then was) to the Thwaite jurisdiction in L v L (as approved in Bezeliansky) did represent the ‘cautious’ and ‘conservative’ approach advocated for by Mostyn J. She considered at [56] that any revision of a final order ‘must be contained and, so far as possible, should reflect the underlying intention’ of the original order.

Kicinski v Pardi [2021] EWHC 499 (Fam), [2022] 1 FLR 474 was a decision of Lieven J. The issue was whether the order (a Rose order) should be varied to write into it an indemnity from the husband in the wife’s favour in respect of financial claims made against the wife by the husband’s aunt and uncle. At [47] she stated:

‘On my analysis of the caselaw, the first question in deciding whether to exercise the Thwaite jurisdiction is whether there has been a significant (and necessarily relevant) change of circumstances since the order was entered into; and the second question is whether, if there has been such a change, it would be inequitable not to vary the order. For myself, I do not find the words “cautious” and “careful” particularly helpful. There are two requirements to the use of the jurisdiction and their application will ensure that the Thwaite jurisdiction is used with care. There is no additional test or hurdle set out by the Court of Appeal in Bezeliansky which is the case that binds me.’

In L v L Munby J had previously considered whether the Thwaite test required only a ‘significant change in circumstances’ or the higher threshold of a Barder event (Barder v Barder (Caluori Intervening) [1987] 2 FLR 480) – i.e. a new event since the order which ‘invalidates the basis or fundamental assumption upon which the order was made’. He declined to determine this, saying at [67] that this was a ‘refinement which there is no need for me to explore here’. In G v C Recorder Allen QC expressed the view that the acceptance by the Court of Appeal in Bezeliansky (at [39]) of Munby J’s analysis in L v L could probably be taken as tacit assent that it is not necessary for the change in circumstances to amount to a Barder event in order for the Thwaite test to be satisfied. In Kicinski at [47] Lieven J agreed with this stating that it was not necessary to show anything more than a significant change of circumstances.

Lieven J also said at [51] that it was not necessary to show that the change of circumstances had been wholly unforeseen and that it would not make sense for such an additional requirement to be imposed. She continued:

‘It may be, particularly in this area of litigation, that it is foreseeable that one party to the agreed order will seek to renege upon it before it is executed. That does not mean that the change that then occurs is not significant even if to some degree foreseeable. It might well on the facts have been not wholly unexpected that Mrs Thwaite or Mr Bezeliansky would have reneged on part of their respective agreements. The courts have not sought to delve into that issue before applying the Thwaite jurisdiction.’

On the facts, Lieven J found that a change of circumstances had occurred and that it would be inequitable not to vary the order as sought. The husband was therefore ordered to give the indemnity.

BT v CU

The challenge to the existence of the jurisdiction has been led by Mostyn J in BT v CU [2021] EWFC 87, [2022] 2 FLR 26. This was a COVID-19 case where the husband sought to revisit a final but executory order made in October 2019, on the basis that his business had suffered as a result of the COVID-19 lockdowns and hence forms part of the oft asked question as to whether COVID-19 was capable of being a Barder event. Mostyn J refused the application.

Considering whether the husband had an alternative remedy available to him under Thwaite, Mostyn J held that Thwaite had been superseded by and had not survived Barder. He stated at [46]:

‘it must be strongly emphasised that in Barder itself, Lord Brandon observed … that the order under appeal was executory. Yet, fully aware of the decision in Thwaite, the Committee did not decide the case by reference to that doctrine. I agree with Ms. Kisser that the Committee must be taken as having impliedly rejected this route as a legitimate source of relief.’

At [48]–[50] Mostyn J referred to the two cases cited by Ormrod LJ in Thwaite. Mullins v Howell (1879) 11 Ch D 763 concerned the release of a party from an undertaking to remove some buttresses projecting from an archway mistakenly given by counsel at an interlocutory hearing. Mostyn J noted that there is a general power vested in the court to discharge an undertaking and that the case said nothing about a supposed power to vary a substantive final order which happens to be executory. Purcell v FC Trigell Ltd [1971] 1 QB 358 concerned a personal injury action where a defence had been struck out for failure to comply with a consent order which required a full reply to interrogatories. That strike-out was upheld in the Court of Appeal; the court refused to discharge the earlier interlocutory order requiring answers to interrogatories. Lord Denning MR stated that even though the order cannot be set aside, there is still a question whether it should be enforced as the court may in its discretion vary or alter them even though made originally by consent. Mostyn J observed that this case said nothing about the existence of a power to vary a substantive final order which happens to be executory. Both cases therefore merely said that the court has power to control its interlocutory orders inter alia by not enforcing them.

This analysis led Mostyn J at [51] to state that Thwaite goes no further than to confirm the existence of an equitable jurisdiction to refuse to enforce an executory order if, in the circumstances prevailing at the time of the application, it would be inequitable to do so. Although the cases relied on by Ormrod LJ related only to interlocutory orders, he pushed back the boundary of that power so as to cover final orders. But the reasoning in Thwaite did not, on any view, support the idea that there exists some kind of equitable power, not merely to refuse to enforce an executory order, but to make in its stead a completely different one.

It was for this reason that Mostyn J said that in SR v HR (Property Adjustment Orders) he had stated that any application under Thwaite should be approached ‘extremely cautiously and conservatively’. He said that this ‘was coded language expressing my doubt that the jurisdiction to rewrite (as opposed to mere refusal to enforce) existed at all.’

At [52] he stated that there did exist a power to extend time to comply with an executory order or to stay its execution for a limited period, provided that the extension did not strike at the heart of the order (citing in respect of the former Masefield v Alexander [1995] 1 FLR 100 and Hamilton v Hamilton [2013] EWCA Civ 13, [2014] 1 FLR 55 per Baron J).

Mostyn J then noted from [56] the four cases after SR v HR which had rejected his doubts and which had held that the court has the power not merely to stay enforcement of an executory order, but to rewrite an executory final to provide for something completely different to that which it originally stated namely US v SR (where the test was satisfied), Akhmedova v Akhmedov & Ors (No 6) [2020] EWHC 2235 (Fam), [2021] 1 FLR 667 per Gwynneth Knowles J (in which Thwaite was not explicitly referred to but L v L and US v SR were and where the test was not satisfied), G v C (again where the test was not satisfied) and Kicinski v Pardi (G v C on appeal).

At [63] Mostyn J stated that he did not agree with these decisions as they were ‘in conflict with the binding precedent of Barder.’ He continued as follows:

‘[64] There is nothing within the terms of s31 of the Matrimonial Causes Act 1973 to suggest that its strict curtailment of the power of variation and discharge is confined only to orders which have been performed. An application to set aside an executory order under the Barder doctrine is explicable as an exercise of appellate powers, now replaced by a specific rule permitting the power to be exercised at first instance. An application to set aside an executory order based on fraud, or mistake, can be explained as a separate cause of action. These are surely the only legitimate exceptions to the statutory prohibition on variation of the amount of capital settlements.

[65] In the nature of things the variation powers in s31 will apply predominantly to unexecuted orders. Some are variable; most are not. It is a carefully devised scheme which was proposed by the Law Commission (see below) and democratically enacted by Parliament. The Thwaite exception, as developed in L v L and the later cases, in my opinion drives a coach and horses through the statutory scheme.

[66] If this route were available, then it means that many Barder cases, including Barder itself, will have been tried, and in most cases dismissed, applying a set of principles far more rigorous than those required under the executory order doctrine. This is because most Barder cases, including Barder itself, concern orders which are executory. It would therefore seem, if the proponents of the executory order doctrine are correct, that the entire litigation in Barder itself, all the way to the House of Lords, was conducted on a completely wrong footing.’

Mostyn J’s conclusion was therefore that where the court is dealing with an unexpected change in circumstances since the order was made, the stringent test in Barder should not be replaced by a different, potentially less stringent test, simply because the order is still executory.

In light of BT v CU, most commentors thought that the Thwaite jurisdiction had been all but extinguished on the basis that it was itself an example of a Barder application rather than a separate and less stringent form of relief.

Thwaite redux? AFW v RFH and H v W

However, reports of its death may have been exaggerated as two recent cases have confirmed its existence.

In AFW v RFH [2023] EWFC 119 (20 July 2023) Recorder Laura Moys was concerned inter alia with an order for sale which remained executory. At [68] she accepted she had a residual power to vary the order under Thwaite if satisfied that there has been both a significant change in circumstances since the final order was made and it would be inequitable not to vary the order. On the facts she refused the application on grounds inter alia that even if the value of the family home had fallen since the making of the final order, fluctuations in the property price (and uncertainty about what a property will ultimately sell for) do not constitute a significant change in circumstances that would justify the exercise of the Thwaite jurisdiction.

In H v W [2023] EWFC 120 (14 July 2023) HHJ Reardon considered Mostyn J’s challenge to the very existence of the Thwaite jurisdiction in BT v CU. At [53] she accepted that one significant difference between BT v CU and the cases in which the Thwaite jurisdiction has been exercised was that for the most part, the latter cases involved circumstances where there has been an element of deliberate frustration of the implementation of an unexecuted order by the actions of a party (Bezeliansky) or third parties (Kicinski). She said that one answer to Mostyn J’s argument in BT v CU – i.e. that Thwaite was superseded by Barder – is that many ‘deliberate frustration’ cases might well fail the first limb of Barder on the basis that the events in question were foreseeable, especially if the responsible party has a history of obstructive behaviour. As Lieven J had observed in Kicinski at [51] ‘[i]t might well on the facts have been not wholly unexpected that Mrs. Thwaite or Mr. Bezeliansky would have reneged on part of their respective agreements’.

This difference led HHJ Reardon to state at [54] that it would be strange if the Family Court offered no remedy for the disadvantaged spouse in cases in that category. At [55] she then observed that BT v CU was a paradigm Barder case (notwithstanding that the application failed). The fact that the order remained executory was incidental. The impact of the COVID-19 school closures on the husband’s school meals business had nothing to do with the wife. She agreed with Mostyn J that in such a case an applicant should not be able to fall back on the ‘less stringent’ Thwaite jurisdiction as an alternative remedy to Barder, simply because the order happens to remain executory.

At [56] she observed that in contrast in the Thwaite cases there is usually a close link between the executory nature of the order and the disaffected spouse’s ability to frustrate it. This was particularly obvious in property sale or transfer cases, where, however tightly-drafted the order, the owner of the property was likely to have a number of opportunities to obstruct and delay the sale or transfer, or otherwise to diminish the value of the asset, in the pre-implementation period. The Thwaite jurisdiction would appear to be the only remedy available in such cases, where the change in circumstances has been brought about by a foreseeably disaffected spouse, rather than an unforeseeable event.

For these reasons HHJ Reardon at [57] expressed the view that the Thwaite jurisdiction did exist as a separate remedy to Barder and that its use may be particularly apt where:

‘(a) The respondent has culpably acted in such a way as to diminish the value of an asset, or otherwise to frustrate the intention behind the order;

(b) There is a link between the executory nature of the order and the change in circumstances: i.e. it is the fact that the order remains executory that has provided the respondent with the opportunity to frustrate it; and

(c) The applicant might well fail the first limb of the Barder test because the respondent’s conduct was foreseeable.’

At [58] the court stated that the essence of the Thwaite jurisdiction was fairness. However, in exercising the jurisdiction, the court is not approaching the situation with fresh eyes. Thwaite itself, Bezeliansky and L v L all refer to making an adjustment from the terms of the final order not because it is fair to do so, but because in the light of events since the order it would be inequitable not to do so. This was a subtle but important distinction.

Conclusion

So the jury is still out. Is Thwaite solely an equitable jurisdiction to refuse to enforce an executory order if, in the circumstances prevailing, it would be inequitable to do so or a power that extends to making a different order albeit (perhaps) one restricted to cases where there has been an element of deliberate frustration of the implementation of an unexecuted order by the actions of a party or third parties and where the case might fail the first limb of Barder on the basis that the events in question were foreseeable?

It is almost inevitable that this will be a question for the Court of Appeal to determine in due course. In the meantime it remains a problematic jurisdiction. As Michael Horton noted in ‘Setting aside executory orders: a terrible fate for Thwaite?’ [2018] Fam Law 884: ‘rely on Thwaite with care – at some point, an appellate court may well be asked to consign Thwaite to the history books’.