Alvina Collardeau v Michael Fuchs

The Applicant wife (“W”) and the Respondent husband (“H”) have been involved in long running financial remedy and enforcement proceedings. Judgments to date include:

Before me now is W’s application of 25 March 2025 for enforcement and variation of the Final Order. For the sake of economy I refer to Mostyn J’s judgments reported at [2022] 2 FLR 957 and [2023] 2 FLR 345 for the initial background.

To be consistent with previously published judgments I shall refer to the main family home, where W and the parties’ two children continue to live as the West London home (“WLH”). Previous orders also relate to a large number of properties (“the Other Properties”) initially listed in Mostyn J’s maintenance pending suit order (“MPS Order”) of 21 February 2022:

Under the MPS Order, H undertook, pending the conclusion of the substantive application, to make all of the interest and capital repayments in relation to any mortgage secured on WLH and the Other Properties and to pay all of “the overheads (to include but not be limited to the running costs, council tax (or equivalent in an overseas jurisdiction) utilities, insurance, repair or maintenance)” of WLH and the Other Properties, and to pay the staff costs of the Other Properties and of six named staff or their replacements at WLH. The MPS Order referred to a portal to be used by the parties to which W would upload invoices or particulars of incurred expenses. H was also ordered to pay W maintenance pending suit “until the making of a final order … and thereafter make or cause to be made interim periodical payments” in the sum of £71,300 per month.

In the Final Judgment, Mostyn J noted that on two occasions H had disclosed his billionaire status albeit he claimed during his oral evidence that the value of his fortune had recently plummeted to around US$600m to US$800m. Mostyn J noted that an important provision of the Pre-Nuptial Agreement (“PNA”) was that in the event of the breakdown of the marriage, W was permitted to remain in the primary residence of the parties (WLH) until the youngest child of the marriage attained 21 years of age with H discharging the mortgage payments, and paying for major repairs and the household staff. At paragraph [160] of the Judgment, Mostyn J concluded that:

“As regards the PNA:

(a)

the wife’s entitlement thereunder is £37,489,392 together with the right to use the husband’s half-share in the family home worth £9,150,000 until 2039;

(b)

in satisfaction of that entitlement the wife will receive (in addition to her half-share, and the right to use the husband’s half-share, in the family home) cash and assets worth £28,339,392 to be paid in cash and by transfers of property as soon as possible;

(c)

the husband will pay the mortgage on the family home pursuant to an undertaking;

(d)

the husband shall indemnify the wife in respect of any taxes that may arise in respect of any transfers of property or other assets into her sole name; and

(e)

on full receipt of the wife’s entitlement there will be a clean break between her and the husband save in respect of child support.”

At paragraph [161] of the Final Judgment, Mostyn J set out his conclusions as to child support that H must pay.

By Mostyn J’s Final Order on 28 June 2023,

The Final Order was not appealed but H has failed to comply with it:

I have previously found that H has sought to defeat the Final Order and to frustrate and impede the enforcement orders made by Gwynneth Knowles J. Not only is he responsible for the acts, omissions and delays set out above, but also he has engaged only sporadically with enforcement proceedings including this particular application for enforcement and variation. He did not attend the hearing before me when I made a finding of a sham agreement. He has acted as a litigant in person for most of the duration of this application but instructed his current solicitors and Leading Counsel very shortly before the hearing. On 28 March 2025, I ordered that H must by 16 May 2025 file and send to W a statement containing any evidence on which he wished to rely in response to the application. He did not do so and on 24 June 2025 I ordered that unless he filed his statement by 4pm on 27 June 2025 he would be barred from filing any evidence on which he wished to rely in response to the application. He did not file or serve any statement.

I had ordered his personal attendance at the final hearing of the enforcement and variation application but shortly before the hearing he asked to attend remotely. He sought an assurance that W would not take steps leading to his arrest or restrictions on his ability to leave the jurisdiction. She had not given such assurances but I noted that there was no evidence of any police investigation or threat of arrest and refused to permit him to attend and give evidence remotely. Mr Chamberlayne KC renewed the application at the hearing but I again refused to allow Mr Fuchs to give evidence remotely. He had not filed any evidence in response to the application despite having had months to do so, he had not complied with an unless order, he had been ordered to attend in person, he had provided no evidence to support his asserted fear of arrest. Any litigant could claim a fear of arrest, without evidence in support, as an obstacle to attendance. He had chosen to absent himself and could not dictate to the Court how the hearing should be conducted. He might well have been understandably concerned that a contempt of court application would be made given his sale of ML1 – that would be due to his own actions and not a reason to fail to comply with an order to attend court in person. Mr Fuchs is adept at creating obstacles to compliance with court orders and then complaining that the obstacles prevent him from complying.

In consequence of his failures to provide written evidence in response or to attend court, the only evidence before the Court on many disputed issues in the case came from W alone. Indeed, the only oral evidence I heard was from W. By now she is an experienced litigant. She has the benefit of being represented by very able and experienced lawyers. As it happens, much of Mr Chamberlayne’s cross-examination was directed at the lack of evidence produced by W to support her claims of the quantum of losses sustained due to H’s defaults. For example, W invites the Court to find that H’s failure to comply with the order to pay overheads including council tax and utility bills for WLH and the Other Properties pending implementation, has resulted in loss to W, or loss of benefit to her amounting to £2,360,572.59 (£871,691.47 in respect of WLH and £1,488,881.12 in respect of the Other Properties). However, W has not produced any records of council tax bills or demands nor of utility bills, no payslips for staff, no repair bills or other evidence of overheads. I shall return to that issue later in this judgment, but given the amount of money in issue, neither party has provided the Court with the documentary evidence that the Court would expect to see, particularly in a case where the amounts in issue are so substantial. I make it clear that H is responsible for this state of affairs. He has not responded to the application save to make a broadbrush request for the Court to assess the arrears and to then give him time to pay. As a result of his non-engagement, the Court has had to do its best to assess arrears and make determinations as to variation and enforcement without the benefit of substantial documentary evidence that he ought to have been able to provide. Criticism was made of W for not producing evidence detailing arrears. It was recognised in the Final Order that there would be some invoices for, say, overheads, that would be known to W but not to H. Nevertheless, the greater responsibility for the absence of evidence in this case lies with H. He was the person responsible for the payments that are in arrears, I am satisfied on W’s uncontested evidence that he thwarted the use of the portal system, and he has avoided accounting for those arrears.

In his Note for the hearing, Mr Chamberlayne KC submitted that there was no valid application for variation before the Court because W had issued her application using the Part 18 procedure. He made his submission only in relation to the variation application, not the enforcement application. He submitted that a claim for variation was an application for a financial order and therefore for a financial remedy (FPR r2.3) and as such must be dealt with under the standard procedure (FPR r9.9B(2)). Whilst the Part 18 procedure may be used for an application in the course of proceedings, that does not apply “to applications where any other rule …. Sets out the procedure for that type of application.” (FPR r18.1(3)(a)) The fast-track procedure cannot apply to an application for variation where the applicant seeks dismissal of the periodical payments order and its substitution with a lump sum order (FPR r9.9B(3)(c)). Under FPR r9.12 to r9.17, the standard procedure involves a first appointment not less than 12 weeks after the date of filing of the application, exchange of financial statements, and an FDR appointment. None of those stages had happened because the wrong application process had been adopted. For W, Mr Leech KC did not seek to persuade me that the right procedure had been used to make the variation application but noted that H had used the same Pt 18 procedure using form D11 when he himself had applied for variation of maintenance pending suit in March 2024. He invited the court to exercise its general power to rectify matters where there has been an error of procedure. FPR r4.7 provides that:

“Where there has been an error of procedure such as a failure to comply with a rule or practice direction –

(a)

The error does not invalidate any step taken in the proceedings unless the court so orders; and

(b)

The court may make an order to remedy the error.”

Mr Leech KC reminded the Court that it also has general case management powers under FPR r4.1 including to take any step or make any other order for the purpose of managing the case and furthering the overriding objective. The overriding objective is to enable the court to deal with cases justly, having regard to any welfare issues involved, including, so far as is practicable, ensuring that it is dealt with expeditiously and fairly and in ways which are proportionate, and saving expense (FPR r1.1).

H has been aware of the variation application for some months. Although he has not had solicitors on the record, he has had access to legal advice. No point has been taken about the form of application until the eve of the final hearing. I can discern no prejudice to H from rectifying any procedural defect, including dispensing with the stages required under the standard procedure under FPR r9. In contrast, insistence on a new application being made and the standard procedure being adopted would cause considerable delay to the great prejudice of W and the children (including harm to their welfare) in particular since WLH, their family home, is being re-possessed by the mortgage company due to H’s failure to pay the mortgage for over a year. It would be wholly disproportionate to insist on the stages of the standard procedure being followed. The variation application arises from H’s repeated breaches of court orders which have been found by the Court prior to the application being made. He has sought to frustrate enforcement and further delay would only serve his ends. In any event, he has chosen not to comply with the Court’s orders regarding his evidence and attendance. It is, I find, unlikely that he would comply with the standard procedure even if that were now adopted. Proceeding with the final hearing on the basis of the application made and the case management to date, will not cause any procedural unfairness to him.

I announced my decision at the hearing, reserving my reasons which I have now given, that I would declare that the error of procedure in using the Pt 18 procedure did not invalidate any step taken to date in the proceedings and that I would make orders remedying the error and dispensing with the requirements of the standard procedure to serve the overriding objective. I would proceed with the final hearing of W’s applications both for enforcement and variation as previously directed and listed.

Counsel helpfully provided summary schedules so that I could compare their respective positions as to the sums due and owing by H under the Final Order.

In the remainder of this judgment I shall:

The parties took differing positions as to whether credits, for example the proceeds of sale of a property, should be offset against the lump sum, with interest on the outstanding amount being re-calculated accordingly, or be credited in some other manner. Having considered the evidence and submissions my determinations are:

The outstanding lump sum and interest for late payment of the lump sum should be calculated in accordance with the determinations set out in paragraph 17 above: £17,336,535.

The parties have agreed H’s figures for the outstanding sums due from H to W under costs orders and the interest thereon : £455,216.47.

I have already indicated that the sum of EUR500,000 paid by H to W in May 2025 should be offset against the lump sum not the MPS. That was the only difference between the parties regarding the outstanding MPS. Thus the figure outstanding in relation to MPS and interest is W’s figure of £1,251,016.69.

In the Final Order, H undertook to pay medical insurance cover for W and the children “at the same level enjoyed during the marriage” and until the commencement of the cover to pay any “agreed private medical bills incurred by the wife and children”. Cover for W was to last until 3 years after the pronouncement of Decree Absolute (which would be July 2026), and for the children until they are each 21 years old. W says that H has not paid for any medical insurance cover for her and the children. There is no evidence that he has done. There is however an evidential difficulty with the quantification of what is due and owing from H to W under the Final Order and by reason of his breach. W has quantified the amount as £95,222.50 by reference to a quote she has obtained for £3,808.90 per month. In her oral evidence W said that on the first (reading) day of the hearing on 14 July 2025 her housekeeper took out medical insurance for her and the children for the year ahead for a premium for the year of £56,000. I have no documentary evidence of that insurance contract, the amount of the premium, or the payment of the premium. I have no evidence as to the level of insurance cover enjoyed during the marriage. W told the Court that she had incurred medical costs since the Final Order but she has not provided any evidence of what those costs were.

I cannot take into account anticipatory breaches. I must not over compensate W for H’s actual breaches. It is not disputed that he has not paid for any medical insurance for W and the children or, pending cover being secured, actual medical bills, but I have no satisfactory evidence of whether W has suffered a financial detriment because of that breach of H’s undertaking. In the circumstances I am not able to identify or quantify the financial detriment caused by the breach. I should not treat the sum of £95,222.50 or any other sum as being due and owing under the Final Order.

H made offers to W on the arrears due in respect of staff costs and overheads for WLH, if any, but the time for acceptance has now expired and I disregard them for present purposes. H accepts arrears on the mortgage of M2 in the sum of £131,519 but otherwise disputes all of W’s contentions as to arrears or expense accrued due to H’s breaches of undertakings. Accordingly, H contends that there are arrears of £131,519 whereas W says the arrears are £1,360,572.59

Under the MPS Order and the Final Order, a mechanism called the “portal” was to be used for sharing information about invoices and payments. It was recognised that some invoices would be addressed to H such that W would not know about them (paragraph 13(a)(i) of the MPS Order), some would be received by W and be unknown to H (paragraph 13(a)(ii)) and some would be received by both (13(a)(iii)). In the Final Order, H undertook to:

The portal system never worked. I was told on behalf of W that H failed to give her access to it. I received no evidence to contradict her claim and it was a credible allegation which I accept. Accordingly, many of the payments due were known to H but not W. I was told that there had been changes to staff at WLH. W told the Court that she had incurred increased expenditure by having to recruit agency staff when employees left because they were unpaid.

The evidence persuades me that H has not paid any staff or overhead costs in relation to WLH since March 2024. W has sought to quantify the arrears generated by H’s breaches of the Final Order in relation to WLH overheads and staff costs by using the figure stated by H to be the annual costs in 2020, which were accepted by Mostyn J. At paragraph 16(ii) of the MPS Judgment (above) he referred to “ a schedule of living costs for the calendar years 2019 and 2020”. For 2020 they were:

These figures came from H himself (see paragraph 47 of the Judgment). At [39] Mostyn J estimated the then annual cost of staff and other overheads to be £2,781,469 which is the total of the second to fourth figures in the list above. In respect of staff and overheads, Mostyn J said at [72]:

“These expenses the husband has formally undertaken to pay. I am not fixing the husband’s liability in this amount, of course. He must pay those expenses in their actual amounts, whatever they are. But £2.78m is in my estimation a reasonable approximation of the annual rate of expenses at the present time.”

W’s case that H ceased paying overheads and staff costs in March 2024 is not challenged. She maintains that the resulting arrears due to H’s breach of his undertakings to pay these amounts comes to £871,691.47 for overheads and staff for WLH, and £1,357,363.12 for the overheads and staff at the Other Properties (exclusive of mortgage payments) and arrears on the staff credit cards. W therefore claims that the total overheads and staff arrears are £2,228,054.59. A breakdown of the figures summarised by Mostyn J at [16(ii)] was provided on behalf of H at that hearing and I have a copy in the core bundle provided to me. In the absence of better evidence, those figures represent “reasonable approximations” of the annual rate of expenditure which H is likely to have incurred in the period March 2024 to date, had he not been in breach of the Final Order.

The figures H gave to the Court in 2021 for the purpose of determination of his MPS obligations and which Mostyn J accepted as reasonable approximations of H’s spending at the time included:

I am satisfied that on the balance of probabilities, these are the arrears on overheads for WLH and these other properties which H undertook to pay at the time of the Final Order but has failed to pay in breach of his undertaking. The total is £609,625.

W has taken a similar approach to the quantification of overheads in respect of Paris 2, Montfort, and Capri but H’s schedule of “running costs” for those properties referred to “development costs” rather than maintenance, service charges or utility bills. The development costs varied significantly between 2019 and 2020 on H’s schedule, suggesting that they were indeed related to development costs rather than regular overheads such as utility bills. Although Mostyn J included these figures in his “approximation” of the future costs to H of all the family properties, I am not persuaded that on the balance of probabilities these are costs that have fallen due as arrears as a result of H’s breach of undertakings. Accordingly, I simply have no evidence of the likely overheads in relation to Paris 2, Montfort and Capri and I do not include any amount in the total arrears under the Final Order.

In relation to M2, W also claims for the unpaid mortgage payments and what she calls condominium costs. M2 is a property owned by W at the time of the final order but subject to a mortgage which H undertook to pay (capital and interest) pending implementation. The parties are agreed the arrears are £131,519. I am satisfied that W has suffered a loss equivalent to that amount due to H’s breach of undertaking. W told me that due to H not paying service charges, rental agreements had to be changed so that payments came directly from tenants. I note that H’s schedule for the 2022 hearing stated that service charges at M2 were £15,540 per annum and property taxes and fees were £13,964. Pro rata for 16 months, H ought to have paid £39,338. W claims a slightly higher figure but I am satisfied, on the balance of probabilities only that the sum of £39,338.67 has accrued as owing due to H’s breach of his undertakings.

I turn now to staff costs in relation to WLH. The schedule provided to Mostyn J had total staff costs for WLH of £899,933 in 2020 but W has claimed only £481,322 for 16 months of staff costs there. She has looked at the costs of the six named members of staff and extrapolated those ongoing costs to the 16 month period of H’s non-payment. In 2020 the permanent payroll costs for WLH were £421,500. W’s evidence was that the current staffing number is down to about five (full time equivalent). Even so, I am satisfied that on the balance of probabilities the staff costs for the 16 months from March 2024 when H ceased to pay staff, are at least £481,332.80 as claimed. That is about 40% of the costs Mostyn J expected H would have to pay as an approximation, which for a 16 month period would be £1,199,910 (£899,933 x 16/12). It is less than the anticipated permanent staff costs for a 16 month period which would have been £562,000 (£421,500 x 16/12). W has, I accept, had to pay additional costs for recruitment of agency staff. Overall therefore I am satisfied that on the balance of probabilities, H’s breaches of undertakings in respect of paying permanent staff for WLH has led to a deficit of at least £481,332.80.

The final amount that W claims under the heading of overheads and staff costs is a figure of £750,080 for “staff credit cards”. I note that W has not claimed any arrears in respect of US staff costs which had been estimated at the time of the MPS order as being £124,067 pa but it is not proven to my satisfaction that the use of the staff credit cards is a suitable proxy for US staff costs. W says that in 2019 the average monthly balance on H’s credit cards for staff use was £46,880. He stopped the use of these credit cards by staff 16 months ago. Under the MPS order H undertook to “take no steps to interfere with or restrict the use by the staff employed at [WLH] of credit or debit cards supplied by him for payment of expenditures connected to such property or the household generally (including the children)”. The central difficulty with W’s contention is that overheads may well have been paid by cards possessed by the staff. Thus there is a significant risk of double counting. I do not have any credit card statements and so I cannot see what was being purchased using such cards. For all the Court knows, the cards might have been used for purchasing travel for H which expenses are now paid from a different source. In his MPS judgment from 2022 (above) Mostyn J recognised an annual figure in 2020 of £1.22m for travel and holidays and over £680,000 for “all discretionary expenditure of the parties not otherwise addressed in his schedule at [16(ii)]”. H did not undertake to meet all expenditure by means of credit cards for which staff had authority to use. This is a large head of alleged loss but I cannot find on the balance of probabilities that the claimed or any sum has accrued arrears under the Final Order because of any breach of undertakings or order by H.

It follows that the total amount of arears under the headings of overheads and staff costs, in respect of WLH and other properties (in bold above) is £1,261,815.47.

By MCA 1973 s31:

“31 Variation, discharge, etc., of certain orders for financial relief.

(1)

Where the court has made an order to which this section applies, then, subject to the provisions of this section and of section 28(1A) above, the court shall have power to vary or discharge the order or to suspend any provision thereof temporarily and to revive the operation of any provision so suspended.

(2)

This section applies to the following orders, that is to say—

(a)

any order for maintenance pending suit and any interim order for maintenance;

(b)

any periodical payments order;

…

(7)

In exercising the powers conferred by this section the court shall have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen, and the circumstances of the case shall include any change in any of the matters to which the court was required to have regard when making the order to which the application relates, and— (a) in the case of a periodical payments or secured periodical payments order made on or after the making of a divorce or nullity of marriage order, the court shall consider whether in all the circumstances and after having regard to any such change it would be appropriate to vary the order so that payments under the order are required to be made or secured only for such further period as will in the opinion of the court be sufficient (in the light of any proposed exercise by the court, where the marriage has been dissolved, of its powers under subsection (7B) below) to enable the party in whose favour the order was made to adjust without undue hardship to the termination of those payments;

7A) Subsection (7B) below applies where, after the dissolution of a marriage, the court—

(a)

discharges a periodical payments order or secured periodical payments order made in favour of a party to the marriage; or

(b)

varies such an order so that payments under the order are required to be made or secured only for such further period as is determined by the court.

(7B) The court has power, in addition to any power it has apart from this subsection, to make supplemental provision consisting of any of—

(a)

an order for the payment of a lump sum in favour of a party to the marriage;

(b)

one or more property adjustment orders in favour of a party to the marriage;”

The Court considering a variation application does not have to consider the matter de novo and must conduct an exercise that is proportionate to the requirements of the case – Morris v Morris [2017] 1 WLR 554, [2016] EWCA Civ 812. Here, W seeks variation by way of capitalisation as a substitution for periodical payments and variation of periodical payments so that undertakings are discharged and the amount of periodical payments is increased accordingly. Put bluntly, W says that demonstrably she cannot rely on H making periodical payments because he has chosen to stop making them. I have no hesitation in finding that since the Final Order H has failed to comply with orders and abide by his undertakings. The Court’s expectation that he would do so was misplaced. Instead he has frustrated the Final Order even to the extent of failing to pay the mortgage on WLH leading to its impending repossession: he has been prepared to see his children be compelled to leave their family home rather than comply with his obligations under the Final Order. The loss of the family home, the failure to transfer properties and to abide by undertakings, and the failure to pay the lump sum are all significant changes. Mr Chamberlayne did not seek to persuade me otherwise.

It matters not that the obligation to make periodical payments was by way of undertaking. In L v L [2006] EWHC 956 (Fam); [2008] 1 FLR 26 Munby J noted at [113]:

“Section 31 entitles the husband to apply for an order varying, discharging or suspending that part of the consent order which constitutes an order for periodical payments. That entitlement is not in any way affected either by the fact that the order was a consent order or by the fact that the relevant provisions are contained in undertakings rather than in the curial part of the order.”

The Final Order included an undertaking by H to continue to abide by the MPS orders until the date of implementation of the Final Order from which point he would be discharged from his obligations. His obligation to pay the mortgage on WLH was however to continue until 2039. Thus there were, and are, continuing obligations to make periodical payments. In Vaughan v Vaughan [2010] 2 FLR 242, Wilson LJ noted at [28]:

“The judge correctly recognised that the issue whether the husband should be ordered to pay a lump sum to the wife under s.31(7B) of the Act, by way of capitalisation of any obligation to continue to make periodical payments to her, fell to be resolved by application of the principles set out in the decision of this court in Pearce v. Pearce [2003] EWCA Civ 1054, [2003] 2 FLR 1144. It is a decision which has rightly received wide approbation, no doubt because, in the words of Thorpe LJ, at [39], it identifies "a relatively simple, certain and predictable method for the calculation of the capital sum". So the first enquiry is to identify the level of periodical payments which should in principle continue to be made by the payer to the payee (including, in the present case, whether they should continue to be made at all and thus whether the payee can – within the meaning of s.31(7)(a) – adjust without undue hardship to their termination): per Thorpe LJ, at [37]. If the result of the first enquiry is a conclusion that periodical payments at a specified level should in principle continue to be made, the second (ignoring, for this purpose, the need to identify what would be the appropriate date for the start of periodical payments at any changed level) is to calculate their capital equivalent according to the Duxbury formula: per Thorpe LJ, again at [37]. For the sake of completeness, I would add that the court must finally survey whether it is fair to both parties to capitalise the periodical payments and, no doubt in particular, whether it is reasonably practicable for the payer to pay the capital sum rather than to make the periodical payments. At all events the court has, thank goodness, only a narrow discretion to arrive at a capital sum otherwise than by application of Duxbury formula and it should exercise it in order only to reflect special factors: per Thorpe LJ, at [38].”

In Thwaite v Thwaite [1981] 2 FLR 280 the Court of Appeal held:

“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. Where the consent order derives its legal effect from the contract, it 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.”

Ormrod LJ went on to say:

''The judge was entitled, in his discretion, to make a new order for [financial] relief in favour of the wife, notwithstanding the refusal of the wife to consent to his doing so. His jurisdiction arose, not from the liberty to apply as he held, but from the fact that the wife's original application for ancillary relief was still before the court and awaiting adjudication. It had not been dismissed since the conveyance had never been executed, so that that part of [the order] by which her application was dismissed, had never come into effect.''

In L v L (above) Munby J held at paragraphs 66 and 67:

“66.

In Benson v Benson (deceased) [1996] 1 FLR 692 at page 696 Bracewell J described the principle as being that:

"…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."

I respectfully agree.

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."

In Bezelianksi v Bezelianskaya [2016] EWCA Civ 76, a refusal of permission to appeal and thus not strictly binding on this Court, the Court of Appeal made it very clear that the Thwaite jurisdiction as it is sometimes called, exists. In Kicinski v Pardi [2021] EWHC 499 (Fam) Lieven J held at paragraph [47]:

“On my analysis of the case-law, 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 Bezelianski which is the case that binds me.”

Mr Chamberlayne did not seek to rely on Mostyn J’s judgment in BT v CU [2022] 2 FLR 26 in which he asserted that Thwaite did not support the idea that there was an equitable power to vary an executory order by making “a completely different one.”

I proceed on the basis that it is now established that where an order is executory, meaning that it has not been implemented, and there has been a significant change in circumstances since the order was made, the Court has the power to vary the order if it would be inequitable not to do so.

Here, the Final Order is executory and there have been a number of changes in circumstances since the order was made, most importantly the failure of H to abide by his undertakings and the impending loss of the family home. It does not follow that I must vary the Final Order nor that I must vary it in the ways W proposes. I have to consider, in relation to any variation, whether it would be inequitable not to make that variation. In any event I have the power under MCA 1973, s31 to vary the periodical payments including by discharging a periodical payment and make a new lump sum order. In what follows, I have applied the legal principles set out above.

The variations proposed by W are:

Had he complied with the Final Order then, barring W electing to leave WLH, H would have been responsible for paying the mortgage and for major repairs required in relation to the property until 2039. More precisely H undertook to continue to pay capital and interest payments under the then current mortgage contract until its end in 2025, and then to make monthly payments under any new mortgage contract with H “not required” to make capital payments. As Mostyn J put it at [160] of his Judgment concerning the Final Order, her entitlement under the PNA was £37,489,392 “together with the right to use the husband’s half-share in the family home worth £9,150,000 until 2039.” Her use of H’s half-share was not valued at £9.15m: that was the value of his equity in the house. Due to the foreclosure on WLH as a consequence of H failing to pay the mortgage, W will lose the 14 years remaining of her 17 year right to use H’s half-share in the family home. She already had the right to use her own half-share of the house but that is no use to her once WLH is repossessed. Under the Final Order she was given exclusive occupancy of the house until 2039.

No new mortgage has been agreed therefore I cannot know what payments H would in fact have made under a new mortgage contract after 2025. What was he liable to pay under the existing mortgage contract? An enclosure to H’s E1 form of 19 March 2024 included expenditure for 2023 by way of the Credit Suisse mortgage on WLH of $441,848.45 per quarter and “amortisation” under the mortgage by way of an annual payment of $1,139,670. Credit Suisse wrote to the parties on 13 March 2025 with a statement of arrears on the mortgage on WLH which included missed capital payments of £1.8m and missed interest payments of £1,624,881.71. There was also interest on arrears of £132,355 and legal fees of £23,283.60. The total then owing as arrears was £3,557,236.71. I have no breakdown of the arrears. Doing the best that I can on the limited evidence provided, I am satisfied that H was paying interest on the mortgage in 2023 of US$1,767,393.80 per annum ($441,848.45 x 4). The average exchange rate for 1 April 2024 to 31 March 2025 published by HMRC was 1.2761 US$ to the £. Hence the annual interest was then £1,384,996.32. Following the circulation of this judgment in draft I received further submissions and further evidence on this issue, including a letter sent to both parties by Credit Suisse dated 21 May 2025 in which it is stated that the interest on the principal loan of £18m was then “5.9686% which equates to GBP 2,943.42 daily”. The parties now agree that annual interest on the principal loan of £18m secured on WLH was £1,074,378 as at 21 May 2025 and would be a marginally less, £1,074,060 at the date of the hearing. That rate of interest was not fixed – it was set at SONIA (Sterling Overnight Index Average) + 1.75%. Previously the interest had been set by reference to the LIBOR rate. SONIA varies and Mr Chamberlayne KC has provided a figure for average annual interest from March 2021 to February 2025 in the sum of £885,000 per annum. However, I am concerned less with what interest payments ought to have been made in the past and more by what H would have been likely to pay in the future, had WLH not been repossessed and had H continued to meet his obligations to pay interest in accordance with his undertakings. I cannot know what new mortgage contract terms he would have secured, nor how the interest under any new contract, if variable, would have varied between now and 2039. There are many uncertainties. But I do know what his obligation to make interest payments was at the date of the hearing in July 2025 and I am satisfied that that is the best guide I have for his likely future interest payment obligations. H is liable in any event to indemnify W for all the arrears under the mortgage arrangements relating to WLH. I must avoid double counting and it is not my purpose to penalise H when ordering any variation. I am satisfied that the interest payable at the date of the hearing of £1,074,060 is the best available indicator of the sum that on average he would have been liable to pay in the future in accordance with his relevant undertaking. It is unlikely, albeit possible, that he would have negotiated a significantly lower rate, even if he had secured a new contract in optimal conditions. It is also unlikely, albeit possible, that he would have been liable to pay a significantly higher rate on average over the next 14 years. I accept Mr Chamberlayne’s submissions that the interest payments in 2023 were on the sum of £19.8m not the principal sum of £18m. In the light of the further submissions and evidence received I am satisfied that the annual sum of £1,384,996 would be too high to reflect probable future liabilities, and the sum of £885,000 would be too low. The annual interest on the principal sum of £18m, which is the relevant amount, was £1,074,060 at the date of the hearing and that, I find, is the annual amount of interest he would be likely to pay were his undertaking in relation to the mortgage on WLH to continue.

W submits that the Court should vary the order so that a lump sum is paid to her in lieu of her loss of use of WLH until 2039. She maintains that the approximate cost of renting a property equivalent to WLH would be £28,000 a week. She invites the court to award her a lump sum of £28,000 x 52 (weeks) x 14 (years) = £20.384m. With some self-awareness it is accepted by W’s Counsel that “this method may seem primitive”, but I am urged to regard it as an underestimate because rents are likely to outstrip Duxbury rates of return and W has more recently been informed that the current market rent for WLH would be closer to £35,000 per week.

H quantifies the loss to W from the early sale of WLH as follows:

So, the parties are over £18m apart on their valuation of the lump sum needed if the Final Order is varied to provide a capital sum in this respect, if it is to be varied at all.

I am satisfied that I have power under MCA 1973 s31 to discharge the undertaking to pay the future monthly mortgage on WLH and to order that H pays W a lump sum award which is the capital equivalent of the periodical payments that H had undertaken to pay. The Thwaite jurisdiction would give me the same power in this case. I have to take into account all the circumstances, be fair to both parties, and to proceed on the limited evidence available. I am satisfied that H is obliged to pay the mortgage capital and interest payments that were in arrears as stated by Credit Suisse in the March 2025 letter, together with all other arrears accruing under the mortgage with them at the time of the forced sale of WLH. That sale is imminent. H is obliged to indemnify W in respect of those sums under the Final Order and no variation is required in that respect however, as discussed below, I shall order that upon sale of WLH, H shall meet those arrears and other expenses associated with the sale. Hence, it is appropriate that H’s undertaking to pay interest under a new mortgage on WLH shall be discharged and that his liability is reflected in a new lump sum award, capitalising the payments he was likely to have made under the Final Order but for the repossession. In all the circumstances it is appropriate for me to make an order for H to pay to W a lump sum to reflect H’s liability for annual interest of £1,074,060 until the youngest child’s 21^st birthday in 2039. The capitalised sum required using the Duxbury formula, not inflated, is agreed to be £11,039,684.

I am satisfied that it is appropriate to vary the periodical payment in respect of the mortgage on WLF accordingly and, having regard to the Thwaite jurisdiction, that it would be inequitable not to do so.

W submits that the Final Order should be varied to add a lump sum representing a collection of various non-legal costs: a settlement payment and costs of a lawsuit brought by a member of staff in France; costs incurred in respect of the lease on M2; fees and interest on the mortgage on the London flat; an electricity bill for the Cotswolds property, legal costs incurred in respect of the foreclosure on WLH, and interest on and costs of personal loans.

None of these costs or liabilities were covered by the Final Order. H was not obliged to indemnify W in respect of all losses or costs consequential on failures by him to pay the mortgage on WLH or to meet other obligations under the Final Order. I have no evidence on which I could assess whether the amounts claimed were reasonably incurred (the legal fees in relation to the foreclosure amount to just short of £195,000) and flowed directly from breaches of the Final Order by H.

These sums were not subject to any periodical payments order or undertaking and MCA 1973 s31 will not assist W in relation to this particular issue. W therefore has to look to the Thwaite jurisdiction. These additional amounts would go beyond the Final Order, creating additional obligations on H. To direct H to pay these amounts would not be a variation to give effect to the Final Order, but a new order creating an additional liability. W has not provided satisfactory evidence of the quantification of all of these claims within the category of capitalisation of non-legal costs, but in any event, I am not satisfied that it would be inequitable not to vary the order so as to add these heads of loss or liability as a lump sum to a varied Final Order.

W invites the Court to replace H’s undertakings to make various payments directly with an upwards variation of the interim maintenance order. W accepts that she has “no way of monitoring or corroborating what these costs really are and whether they are being paid”. Hence, she has deployed a figure from H’s own budget produced during the original proceedings. She maintains that the revised monthly periodical payment should be £285,796.

Under the Final Order H undertook to abide by all his undertakings and obligations as set out in the MPS orders until the date of implementation of the Final Order. He also undertook to pay for medical insurance cover for W (until three years after Decree Absolute) and the children (until each was aged 21). The MPS undertakings were set out at paragraphs 13-15 of the MPS Order made on 21 February 2022:

H has not met those undertakings for some 16 months and the Court can have no confidence that H will meet his undertakings in the future. Nor could the Court have any confidence that H would abide by an order to indemnify W in respect to the costs of, say, staff at the Other Properties. I am satisfied that in all the circumstances it is appropriate to vary the periodical payments which H was obliged to pay under the Final Order so that they are replaced with orders for H to pay specific, quantified amounts. Firstly, he has indicated through his Counsel’s Note that he seeks quantification of what he owes W so that he can acquire the funds to pay in full. Secondly, W is right to say that she cannot monitor and corroborate what the costs are and whether they are being paid. Thirdly, if H does not pay the amounts in a varied periodical payments order, then quantification and enforcement will be a more straightforward process than is quantification of arrears by breach of undertakings. The power to vary derives from both MCA 1973 s31 and the Thwaite jurisdiction. I am satisfied for the reasons already given that there have been significant changes in the, still executory, order since it was made. I am also satisfied that it would be inequitable not to vary the order so as to give effect to the periodical payments which H was obliged to make by reason of his undertakings.

I struggle to understand how W’s proposed figure of £285,796 is reached but in principle I am satisfied that the undertakings should be discharged and replaced with orders for periodical payments for defined amounts.

I refer to paragraphs 24 to 35 of this judgment in which I assessed the arrears H owes to date as a result of the breaches of his undertakings under paragraph 14 of the Final Order (and by reference to paragraph 14 of the MPS Order). Dealing with the obligations in turn:

H has breached his undertaking to provide medical insurance cover for W and the children. W has initially claimed that the cost of such insurance would have been £3,808.90 per month but that recently she purchased annual, international insurance cover for £56,000. I have no documentary evidence to support that expenditure but nor do I have evidence to challenge it as a reasonable amount for the needs of W and the children. I have to look forward to what H would have been expected reasonably to pay by complying with his undertaking. I can no longer rely on him to abide by that undertaking. I am satisfied that I should discharge him from his undertaking to pay for medical insurance and vary the periodical payments order by adding an annual amount of £56,000.

Hence, the periodical payment that H will be required to pay should cover the following per annum liabilities:

In summary, the amounts outstanding as at 16 July 2025 for H to pay under the Final Order are:

I am quite satisfied that although the sums now owed by H are very high, he has the means to pay. H has twice deposed to net wealth of well over $1 billion. W has provided evidence of receipts by H of some £56m from the sale of private equity investment since June 2023. Press reports show that RFR has sold properties at over $1.6bn in the last year and a half. In his E1 form signed by him in March 2024 H stated that he had total assets of just shy of £662m.

Stepping back and applying the legal principles set out above, having regard to all the circumstances and the significant changes since the Final Order was made, and considering the welfare of the two children who are about to lose their family home, I am satisfied that it is appropriate that the variations I have set out above should be made and that it would be inequitable not to vary the unexecuted Final Order accordingly.

I turn to the further enforcement measures sought by W. The exercise thus far has been to quantify what H owes and to make variations so that his obligations are quantified and, where appropriate, capitalised. The total owing as at 16 July 2025 is £31,344,267.63 together with continuing obligations including periodical payments as varied. H invited the Court to undertake that exercise so that he could then secure the funds to pay, inviting the Court to stay further enforcement measures to allow him time to pay the whole of the outstanding monies and to implement the Final Order. His track record gives no grounds for any optimism that he would do so. He has had the opportunity to pay a much smaller sum in compliance with the Final Order but chose not to do so. W set out the enforcement measures she sought in a draft order attached to her application of 25 March 2025. I have dealt with the variation applications. In relation to enforcement, I have decided that the following orders are now necessary and proportionate to enforce what is now owing:

I shall make orders for sale of ML2 (ML1 having already been sold) and the apartment at Battery Place previously the subject of an undertaking to Gwynneth Knowles J in February 2024. I understand H to protest that he has already triggered liability to pay back a secured loan from HSBC by selling ML1 and the Miami hotel penthouse apartment. However, he did not give evidence to the Court and these properties have been the subject of Gwynneth Knowles J’s orders and should now be sold with receipts to be paid to W as per paragraph 10 of the draft order. I shall also make the orders sought by W and set out at paragraph 11 of the draft order in respect of Artworks.

I am not prepared to suspend the enforcement orders because H has given the Court no grounds on which to accept any assurances from him that he will pay what he owes unless forced to do so. He has had two years to comply with the Final Order. However, he knows what his liability now is and he can approach W with a proposal for payment of a lump sum to resolve this hugely expensive and stressful litigation.

I have not made any order in respect of the proceeds of the recent sale of ML1 and the Miami hotel penthouse but they are now the subject of a committal application which I shall address separately. It appears that the proceeds are already in the hands of Mr Rosen. I do not have a formal application before me in respect of those sums.

I shall make the order sought in respect of W’s artwork at paragraphs 14 and 15 of the draft order.

W’s obligation to pay costs to Mr Harrison as ordered by Knowles J shall be deferred until 28 days after she has received the proceeds from the sale of WLH.

Those are my determinations on this application.