Alexander Valeryevich Timokhin v Anna Anatolyevna Timokhina

THE HON. MR JUSTICE DEXTER DIAS

This is the judgment of the court.

To assist the parties and the public to follow the main lines of the court’s reasoning, the text is divided into 15 sections, as set out in the table of contents above. The table is hyperlinked to aid swift navigation.

This is a Part 8 application in the King’s Bench Division to recognise and enforce at common law two Russian judgments in personam. An unmistakably binary question arises: either the Russian judgments should be recognised and enforced or they should not.

The judgments were delivered by the Vsevolozhsky City Court (“the VCC”) on 24 January 2023 and the Leningrad Regional Court (“the LRC”) on 11 October 2023. From that simple statement, complexities multiply.

While the proceedings in this case have been aptly described by the parties as labyrinthine - conducted both here and in Russia at many different judicial tiers, involving appeals, cross-appeals, and re-hearings, and in different jurisdictional divisions, at times running in parallel - the essential facts are straightforward. They can be, at least at first, simply stated.

This is a dispute between a former husband and wife. They are both Russian nationals and are in dispute about a post-nuptial agreement (“PNA”). The husband seeks recognition and enforcement of the Russian courts’ judgments about the PNA that have (very broadly) been determined in his favour. The wife opposes recognition and enforcement. She seeks to impeach the VCC and LRC 2023 judgments (together “the impugned judgments” or “contested judgments”; the courts in 2023, “the impugned courts”).

The husband is Alexander Valeryevich Timokhin, referred to in the Russian judgments as “Timokhin A.V.”. He is the claimant in the enforcement proceedings in the English court. The wife is Anna Anatolyevna Timokhina (“Timokhina A.A.”). She is the defendant. Mr Timokhin is represented by Mr Bradley KC and Mr Birch of counsel, with Ms Amaouche KC providing a skeleton argument on behalf of the claimant confined to the family law aspect of the case. Ms Timokhina is represented by Mr Samek KC, Ms Breslin and Ms Perrins of counsel. It is difficult to overstate the quality of the assistance all counsel have provided to the court and I am grateful to them.

The claimant and defendant were married in Russia in 2004, had two children together (daughter, 2004; son, 2011), and entered into a PNA in Russia in June 2017. Under the PNA, the defendant gave up any claim to maintenance or alimony. She was to receive the transfer of property in St Petersburg and a flat in Hampstead, London. The spouses separated in July 2017. The wife issued divorce proceedings in London; the husband in Russia. On 23 October 2017, the Russian court pronounced the decree, which was made final in February 2018. Litigation in the Russian courts soon followed.

Put very shortly, the two prime disputes are:

To return to the chronology, in April 2018, the wife was arrested in Russia for bribery of an official, which she admitted was an act designed to harm the husband. In April 2018 also, the husband applied to the Russian court to set aside the lump sum clause 5.2. His claim was that Ms Timokhina had distributed harmful data about him contrary to another clause in the PNA (clause 6.2). The Vyborgsky District Court in Russia refused his application. In September 2018, Ms Timokhina pleaded guilty to bribery and received a sentence of 4 years’ imprisonment, to be served in a “general penal colony”. In November 2018, the wife applied to enforce clause 5.2 and receive the lump sum. The wife also appealed in the criminal proceedings. In August 2019, the Court of Cassation (a tertiary tier appellate court, one level above the regional court) reduced the offence to one of attempted bribery and Ms Timokhina was released from custody. It is noted in the High Court judgment here by Cobb J (as he then was) that under the terms of the revised criminal sentence, the wife is due to return to custody when her son reaches the age of 14, a sentencing arrangement in Russian law for a primary carer (High Court judgment, 16 July 2020, para 16).

Also in August 2019, the husband counterclaimed to set aside clause 5.2 and recover sums paid to the wife under clause 5.1 as family expenses. He had transferred £1.17 million to her for family expenses under clause 5.1 during the marriage and claimed that as the children had lived with him since May 2018, Ms Timokhina had no family expenses to meet and thus had been unjustly enriched. The VCC delivered its judgment in November 2019, granting the wife’s clause 5.2 enforcement application in respect of the lump sum, but set it off against the husband’s family expenses counterclaim under clause 5.1.

In December 2019, the wife applied to the VCC to have the PNA declared null and void. In July 2020, the VCC refused her application. In February 2021, the matter went to the next appeal tier, the regional court, the LRC. In July 2021, proceedings progressed again to the next appellate tier, the Third Cassation Court. The Third Cassation Court overturned the LRC’s 2021 decision and remitted the matter to the first instance court at the VCC for rehearing. However, in September 2022, the husband was successful in appealing the decision of the Third Cassation Court in the Russian Supreme Court.

The wife then reapplied to the VCC seeking a penalty under the PNA for the husband’s failure to pay the clause 5.2 lump sum, and a greater sum than in 2019. He counterclaimed seeking the return of the funds transferred as family expenses under clause 5.1. On 24 January 2023, the VCC delivered a further judgment (the first of the contested or impugned judgments). It reduced the sum payable by the husband under clause 5.2 to £900,000 (therefore, a reduction of £100,000 in the lump sum), amended clause 5.2 of the contract and imposed a £50,000 penalty on the husband for his clause 5.2 non-payment. It also ruled that the wife should repay £967,416.67 of the £1.17 million transferred to her by the husband under clause 5.1 for family expenses. The case went again to the LRC on appeal. It delivered its judgment on 11 October 2023 (the second of the impugned or contested judgments). The LRC further reduced the lump sum payable to the wife under clause 5.2 by another £400,000, so the figure rested at £500,000. The penalty under the PNA imposed on Mr Timokhin was upheld. Against this, the LRC set off the £967,000 approximately transferred to Ms Timokhina as family expenses. Overall, therefore, the wife owed the husband £417,416.67 (£967k - £550k in rounded figures).

Ms Timokhina appealed further. In February 2024, the Third Cassation Court (now receiving proceedings for the third time) upheld the LRC’s October 2023 order. In May 2024, the Russian Supreme Court refused Ms Timokhina permission to appeal and provided written reasons for the refusal. In October 2024, the St Petersburg Commercial Court declared Ms Timokhina bankrupt.

Therefore, the ultimate position following the Russian proceedings is that Ms Timokhina was ordered to pay Mr Timokhin approximately £417k. He seeks to enforce in this country the 2023 judgments of the two Russian courts, and in particular against property the wife owns in Hampstead, London. She opposes recognition and enforcement.

These facts must necessarily be revisited and are also provided in tabular form below to clear a path through what may appear to be a procedural forest. The key thing to have in mind is it is two contested judgments from 2023 that the husband as claimant here seeks to enforce, through Part 8 application to this court: the decisions of the city court (VCC) from January 2023 and the regional court (LRC) from October 2023. The amount sought to be enforced in precise terms is £417,416.67.

The history of the proceedings between the parties both in this jurisdiction and Russia provides valuable signposts to the correct legal outcome of this recognition and enforcement application. The chronology is summarised here in tabular form as frequent reference to the sequence of events will become necessary. The facts, stripped here to their bare essentials, are fleshed out as necessary during the judgment. It should be added that the translations of the Russian judgments at points contain unorthodox spellings or outright spelling errors. They have been corrected only when the sense of the sentence has been hampered.

Claimant “C” (Mr Timokhin); Defendant “D” (Ms Timokhina)

The PNA is a detailed document extending to 10 pages of dense script. Among the most relevant, and contentious, clauses in these proceedings are the following:

“MARRIAGE CONTRACT

Saint Petersburg, this sixth day of June in the year of two thousand seventeen,

We, citizen Alexander Valeryevich Timokhin, born on December 18, 1969, place of birth: city of Leningrad, citizenship: Russian Federation, gender: male, … registered at:2 Dinamovskaya Ulitsa, Apartment 12, Saint Petersburg, hereinafter referred to as “the Husband”,

and citizeness Anna Anatolyevna Timokhina, born on May 22, 1975, , place of birth: city of Leningrad, citizenship: Russian Federation, gender: female, … registered at: 14 Khudozhnikov Prospect, Apartment 343, Saint Petersburg, hereinafter referred to as “the Wife”,

hereinafter together referred to as “the Spouses” or “the Parties”, married, the marriage having been registered by the Wedding Palace No 1 of the Civil Status Registry Department of the Saint Petersburg Government on January 11, 2004 (certificate of marriage 1-АK No 700293 issued on January 11, 2004, marriage registration entry No 95),

with the purpose of strengthening and preservation of marriage relations, fair settlement of property relations, both during the marriage, and in case of termination thereof, as well as for protection of the interests of each of the Spouses, have voluntary, on their mutual consent and acting according to Sections 40, 41, 42 of the Russian Federation Family Codes, entering into this marriage contract (hereinafter referred to as “the Contract”), as follows:

…

5.

PROCEDURE OF INCURRING OF FAMILY EXPENSES BY THE SPOUSES AND OF PAYMENT OF A COMPENSATION TO THE WIFE IN CASE OF TERMINATION OF THE MARRIAGE; THE SPOUSES' RESPONSIBILITY UNDER OBLIGATIONS

Clause 5.1

5.1.

During the marriage:

The Spouses have come to an agreement and have agreed that the amount of total monthly family expenses shall be thirty two thousand five hundred pounds sterling (Ј 32,500) according to the exchange rate fixed by the RF Central Bank.

The family expenses include, in particular, payment for municipal services, provision of the entire family, including the Spouses and children, with meals and clothes, maintenance of children, including, but not limited to, their training, "insurance, payment for services of child nurses, resident tutors and tutors, as well as other expenses allocated to the family's needs. Incurrence of such expenses is assigned to Alexander Valeryevich Timokhin.

With the purpose of compliance with this procedure of incurring the family's expenses during 36 months following the moment of entering into of this Contract, the Husband shall transfer within 5 calendar days from the date of the Agreement to the Wife's account the funds in rubles of the Russian Federation according to the exchange rate fixed by the RF Central Bank in the amount equivalent to one million one hundred seventy thousand pounds sterling (Ј 1,170,000) which she is entitled to spend exclusively for the family's needs.

Upon expiration of 36 months, the balance on the account shall be replenished by the Husband for the next 12 months, proceeding from the family budget agreed upon by the Parties, but not less than the amount fixed by this clause.

Anna Anatolyevna Timokhina undertakes to provide the Husband with the account details for transfer of the funds at the moment of signing of this Contract.

In case of termination of the marriage within 36 months from the moment of signing of this Contract, Anna Anatolyevna Timokhina shall have the right not to return to the Husband the funds remaining on the account. If the funds allocated towards the family's needs are saved, Anna Anatolyevna Timokhina shall have the right not to return to the Husband the funds remaining on the account.

Clause 5.2

5.2.

In case of termination of the marriage, Alexander Valeryevich Timokhin undertakes to pay Anna Anatolyevna Timokhina the funds in rubles according to the exchange rate fixed by the RF Central Bank on the day of payment equivalent to one million pounds sterling (Ј1,000,000). The said amount shall be transferred to Anna Anatolyevna Timokhina as a lumpsum in rubles of the Russian Federation according to the exchange rate fixed by the RF Central Bank on the day of payment in the amount equivalent to one million pounds sterling (Ј1,000,000) not later than within thirty (30) calendar days from the date of termination of the marriage by banking transfer to Anna Anatolyevna Timokhina's account. Anna Anatolyevna Timokhina undertakes to provide the Husband with the account details for transfer of the funds at the moment of signing of this Contract.

Clause 5.3

5.3

The Parties confirm that the funds specified in clause 4.1.9, 5.1 and 5.2. of this Contract are not maintenance obligations. In view of the above-said terms of separation of the property, the Parties have decided that during the marriage, as well as in case of termination thereof for any reason, Alexander Valeryevich Timokhin shall have no obligations to pay any maintenance and (or) alimony in favor of Anna Anatolyevna Timokhina. Timokhin Alexander acknowledges that Anna Anatolyevna Timokhina has the rights of claim within the amounts specified in clauses 4.1.9, 5.1. and 5.2, of this Contract.

If the Husband breaches the obligations to pay the fiscal compensation stipulated in clause 5.2. of this Contract, the Husband shall pay in favor of the Wife a fine equal to 0.1% of the debt amount per each day of delay in payment.

Clause 6.2

6.2.

Each of the Spouses undertakes to perform his/her duties under this Contract in good faith, and to refrain from causing any harm to the other Spouse of, in particular, not to distribute data discrediting honor, dignity and/or business reputation of the other Spouse.

Clause 6.9

6.9.

This Contract shall be considered entered into as of the moment of certification thereof by notary, and shall remain in effect till the moment of termination of the marriage between the Parties, except for the obligations which have been stipulated by the Contract for the period after termination of the marriage.”

The parties seek determination of the following issues:

The striking through of the A1P1 element will be explained later in the judgment. It is sufficient here to say it was not pursued. There is much to examine. The case was argued before me in two broad parts. I propose to divide the judgment text accordingly:

It is convenient to think of Part 1 as the contractual interpretation aspect of the case. Part 2 may be thought of as the family law aspect of the case. This crude taxonomy does scant justice to the subtlety and versatility of the arguments of counsel, but all that will become apparent. I turn to some of the cardinal legal principles governing recognition and enforcement under English law.

In an application to enforce foreign judgments, the point of embarkation is to identify the status of foreign judgments under English law. The judgments of foreign courts have no legal effect in England. Lord Selbourne famously put it in this way in Sirdar Gurdyal Singh v Rajah of Faridkote [1894] AC 670, 683, “one who gives a judgment outside his territory may be disobeyed with impunity.” More recently, the idea was summarised in Drelle v Servis-Terminal LLC [2025] EWCA Civ 62 (“Drelle”) by Newey LJ at para 12:

“judgments of foreign courts have, as such, no legal effect in England, for foreign judges have no authority in England… As judicial adjudication is an exercise of state sovereignty, this is obvious: state sovereignty ends at the border of the state, and while international comity may certainly require that respect be given to exercises of that power within the sovereign’s own territory, that is where the conventional obligations of comity end.”

The Court of Appeal continued at para 22:

“A successful litigant with a foreign judgment in his favour cannot enforce that judgment in England. No measures of execution may be taken on the strength of it. The claimant must instead bring original proceedings before the English court, in order to obtain, speedily or eventually, an original English judgment, which alone is the judgment which can be enforced.”

Therefore, recognition before consideration of enforcement. Next, one must identify the legal basis of recognition and enforcement. It must be emphasised that there is “no rule requiring an unquestioning acceptance by courts in the United Kingdom of the validity and legality of a foreign judgment” (Deutsche Bank AG London Branch v Receivers; Central Bank of Venezuela v Governor and Company of the Bank of England [2021] UKSC 57; [2023] AC 156 (SC) per Lord Lloyd-Jones at para 161). Framed another way, the Court of Appeal said in Yukos Capital (No 2) [2012] EWCA Civ 855; [2014] QB 458 (CA) per Rix LJ at para 87:

“Sovereigns act on their own plane: they are responsible to their own peoples, but internationally they are responsible only in accordance with international law and internationally recognised norms. Courts, however, are always responsible for their acts, both domestically and internationally. Domestically they are responsible up to the level of their supreme court, and internationally they are responsible in the sense that their judgments are recognisable and enforceable in other nations only to the extent that they have observed what we would call substantive or natural justice, what in the United States is called due process, and what internationally is more and more being referred to as the rule of law. In other words the judicial acts of a foreign state are judged by judicial standards, including international standards regarding jurisdiction, in accordance with doctrines separate from the act of state doctrine, even if the dictates of comity still have an important role to play.”

The doctrine of obligation received early statement by Parke B. in Russell v Smyth (1842) 9 M. & W. 810, 819 and Williams v Jones (1845) 13 M. & W. 628, 633. The doctrine was later approved by Blackburn J in Godard v Gray (1870) L.R. 6 Q.B. 139, 149-150 and Schibsby v Westenholz (1870) L.R. 6 Q.B. 155 in this way:

In Adams v Cape Industries PLC [1990] Ch. 433 (“Adams v Cape”), the Court of Appeal stated that at common law foreign judgments were enforced, not through considerations of comity, but on the basis of the principle that a legal obligation arises to satisfy a judgment of a court of competent jurisdiction. However, later the Court of Appeal explained (552) that:

“The most one can say is that the duty of positive law first identified in Schibsby v Westenholz . . . must stem from an acknowledgement that the society of nations will work better if some foreign judgments are taken to create rights which supersede the underlying cause of action, and which may be directly enforced in countries where the defendant or his assets are to be found.”

I note what the Supreme Court said in Rubin v Eurofinance SA [2012] UKSC 46 (para 9) that the obligation theory is based on the approach to pleading an action on a foreign judgment in debt. Thus, it is a purely theoretical basis for the enforcement of foreign judgments at common law grounded in history. Different considerations apply when enforcement is sought under statute. Taking stock, this court’s recognition under common law of the Russian judgments is a necessary first step. Once done, the debt arising under the foreign judgments can be enforced in this jurisdiction following recognition here because of an English judgment (Drelle at para 55).

There are various grounds of impeachment identified in Dicey, Morris and Collins, The Conflict of Laws (16^th Ed.) (“Dicey”). To begin, Dicey sets out the cardinal rules for recognition and enforcement. The substantive nature and procedural status of a qualifying judgment is vital. This is set out at Rule 46:

“RULE 46—(1) Subject to the Exceptions hereinafter mentioned and to Rule 63 (international conventions), a foreign judgment in personam given by the court of a foreign country with jurisdiction to give that judgment in accordance with the principles set out in Rules 47 and 48, and which is not impeachable under any of Rules 52 to 55, may be enforced by a claim or counterclaim for the amount due under it if the judgment is

(a)

for a debt, or definite sum of money (not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty); and

(b)

final and conclusive,

but not otherwise.”

No one disputes but that the judgments in the instant case are final and conclusive in respect of Russian proceedings. Mr Timokhin seeks to recognise the judgments and then enforce a debt for Rule 46 purposes. However, there is dispute whether aspects of the Russian judgments operate as penalties or punitively against Ms Timokhina, an issue to be determined later. Rule 51 features prominently in the rival submissions. It provides:

“RULE 51—A foreign judgment which is final and conclusive on the merits and not impeachable under any of Rules 52 to 55 is conclusive as to any matter thereby adjudicated upon, and cannot be impeached for any error either

(1)

of fact; or

(2)

of law.”

The consequence, as Dicey says (714), is that: “the judgment is conclusive in England (unless it is impeachable for reasons of fraud, public policy or the like) and not merely prima facie evidence of the defendant’s liability as had at one time been supposed.” Building on this, Rule 54 of Dicey provides a public policy basis for impeachment:

“RULE 54—A foreign judgment is impeachable on the ground that its enforcement or, as the case may be, recognition, would be contrary to public policy.”

Dicey’s commentary under Rule 54 begins:

“For many years, there were very few reported cases in which foreign judgments in personam had been denied enforcement or recognition for reasons of public policy at common law, reflecting the exceptional nature of this defence.”

Impeachment based on breach of natural justice is considered at Rule 55:

“RULE 55—A foreign judgment may be impeached if the proceedings in which the judgment was obtained were opposed to natural justice.”

Famously, in Pemberton v. Hughes [1899] 1 Ch 781 at 790, Lord Lindley said:

“If a judgment is pronounced by a foreign court over persons within its jurisdiction and in a manner with which it is competent to deal, English courts never investigate the propriety of the proceedings in the foreign court, unless they offend against English views of substantial justice.” (original emphasis)

Furthermore, it is for the English court to determine whether the rules of natural justice have been observed, as Staughton LJ stated in Jet Holdings Inc. v Patel [1990] 1 QB 335, 345E:

“Once again one would expect that the foreign court's views would logically be neither conclusive nor relevant as to the propriety of its own proceedings. If the English court considers that the foreign court did not observe the rules of natural justice—for example, the rule audi alteram partem or nemo judex in rem suam —why should it make any difference that the foreign court thought that it was observing the rules of natural justice?”

That said, Cranston J explained in OJSC Bank of Moscow v Chernyakov [2016] EWHC 2583 (Comm) (“OJSC”) at para 8:

“As to natural justice, first, a defendant must be given the opportunity so that they can put their case in response: Jacobson v. Frachon (1927) 138 L.T. 386; Adams v. Cape Industries Plc [1990] Ch 433, 563G. A mere procedural defect in the proceedings will not be sufficient. What is required is a substantial denial of justice: Aeroflot v. Berezovsky [2012] EWHC 3017 (Ch), [54], per Floyd J. However, a defendant must take all available defences in the foreign court and if they are at fault in not doing so, may not impeach the foreign judgment in England: Israel Discount Bank v. Hadjipateras [1984] 1 WLR 137, 144 C-H, per Stephenson LJ. A corollary of this is that a defendant may not impeach a foreign judgment by raising defences before the English court where the foreign court has considered and rejected them.”

Impeachment due to bias or bad faith was examined by Sir Michael Burton in Maximov v OJSC [2017] EWHC 1911 (Comm) (“Maximov”). Reflecting on Rule 51, he observed that just because a foreign judgment is wrong or even manifestly wrong in law or fact, it is not by dint of that error impeachable. He said at para 15:

“(1)

The fact that a foreign court decision is manifestly wrong or is perverse is not sufficient (see for example Dicey, Morris and Collins, The Conflict of Laws 15th Ed at 14-163, OJSC Bank of Moscow v Chernyakov [2016] EWHC 2583 (Comm) and Erste Group Bank AG (London) v JSC (VMZ Red October) [2013] EWHC 2926 (Comm) (“Erste Group Bank”)). The decision must be so wrong as to be evidence of bias, or be such that no court acting in good faith could have arrived at it.

(2)

The evidence or grounds must be ‘cogent’.

(3)

The decision of the foreign court must be deliberately wrong, not simply wrong by incompetence.”

In OJSC, Cranston J said at para 7:

“It is not contrary to English public policy to refuse to recognise a judgment which is obviously wrong. However, if there is evidence of a perverse refusal by the foreign court to apply the law in a judicial manner, it may be possible to oppose recognition on the ground that the behaviour of the court infringed natural justice: Professor Adrian Briggs, Private International Courts in English Courts, 2014, p.480.”

Further, this court unquestionably has a duty to act compatibly with the European Convention on Human Rights (“ECHR”). As explained by Briggs, Civil Jurisdiction and Judgments (Adrian Briggs KC, 8^th Ed., 2025) (“Briggs 2025”) at 14-34:

“… If an English court has a statutory duty to ensure that a person’s right to a fair trial is not infringed, it must follow that it cannot recognise a foreign judgment if its recognition, and the making of a judicial order which is consequent upon that recognition, would have the effect of adopting into its legal order something which the Act prohibits. … [I]t cannot be correct that an English court may recognise a judgment given in proceedings which fell short of what Article 6 guarantees, for otherwise the protections guaranteed by Article 6 could be set at naught by suing first in a country which pays less regard to such principles.”

If the foreign judgment is so arbitrary that it amounts to a denial of justice, it violates Article 6 of the ECHR. The European Court of Human Rights (“ECtHR”) held in Anheuser-Busch Inc v Portugal (2007) 45 EHRR 36 at para 83:

“the Court reiterates that its jurisdiction to verify that domestic law has been correctly interpreted and applied is limited and that it is not its function to take the place of the national courts, its role being rather to ensure that the decisions of those courts are not flawed by arbitrariness or otherwise manifestly unreasonable. This is particularly true when, as in this instance, the case turns upon difficult questions of interpretation of domestic law.”

In Bochan v Ukraine (No 2) (2015) 61 EHRR 14, the ECtHR held at para 62 that arbitrariness could be found in domestic court decisions that had

“no legal basis in domestic law and had not contained any connection between the established facts, the applicable law and the outcome of the proceedings, [and] amounted to a “denial of justice”.”

Delivering judgment in OJSC in 2016, Cranston J said at para 10:

“In addition to the position at common law, there is a right to a fair trial under Article 6(1) ECHR, which arises by reason of section 6 of the Human Rights Act 1998. It means that there is a duty directly on an English court not to give effect in England to the judgment of a foreign court where to do so would violate fair trial standards. Russia is a party to the ECHR, and so there is a strong presumption that its courts comply with the procedures of the Convention: see Maronier v. Larmer [2003] QB 620 (CA), [24]-[25], per Lord Phillips MR; Merchant International Co Ltd v. Naftogaz Ukrainy [2012] EWCA Civ 196, [2012]1 WLR 3036, at [71], per Toulson J, Joint Stock Co., Aeroflot-Russian Airlines v. Berezovsky [2014] EWCA Civ. 20, [57]-[58], per Arden LJ.”

As is well known, Russia was suspended from the Council of Europe in 2022 following the invasion of Ukraine. It ceased being a high contracting party to the ECHR in September 2022. Thus, the instant proceedings in Russia spanned periods in which the ECHR applied and then did not. The two contested decisions from 2023 were handed down following Russia’s withdrawal from the ECHR.

Putting these ideas together, a foreign judgment may not be recognised (preceding questions of its enforcement) for among the following reasons, or combinations of them, that is if the judgment is:

I can accept the defendant’s submission that the clear framing of Rule 51 has significance for this case. Recognition and enforcement requires that the judgment is “not impeachable under any of Rules 52 to 55”. Further, the defendant is undoubtedly correct to emphasise that the recognition and enforcement of foreign judgments is “created and defined by English law and not by foreign law” and the defences “are themselves creatures exclusively of English law” (Drelle, para 14). Therefore, the foreign judgment remains unenforceable until recognised by the English court and no grounds for impeaching the judgment as judged by English law subsist. All these matters will be explored in more detail. These introductory extracts are designed to set the scene.

Where there is an otherwise Rule 46/51-compliant foreign judgment, a matter to be established by the party seeking enforcement, the burden shifts onto the party that seeks to impeach it to establish a recognised ground of impeachment or “defence”.

Finally, the parties agree that a judgment for a debt is an indivisible whole. If it is impeached in part, it is not enforceable. The “untainted” part is not severable. Either the judgment is enforceable or it is not.

On 18 December 2024, the parties were granted permission by order of Senior Master Cook to call evidence from Russian law experts. The scope of the permission was to address “Whether there is a proper legal basis under Russian law” for the reductions in the lump sum payable to Ms Timokhina under clause 5.2.

The claimant instructed Ms E.P. Zakordonskaya. Ms Zakordonskaya is a retired judge and a practising lawyer. She has 35 years of legal experience, including 15 years as a judge. After graduating, she was appointed as a judge for civil cases in a district court that deals with civil (including family) cases between individuals. She was appointed as a judge of the Arbitration Court of the North-Western District. This is the Court of Cassation (court of third instance) for economic and arbitration disputes between legal entities and/or individuals related to business activities, including civil and family law issues. Since 2006, she has specialised exclusively in civil cases, advising clients on various civil, family and corporate law issues, general commercial transactions and a wide range of issues related to civil procedure law.

The defendant instructed Ms Liuda Yablokova. Ms Yablokova is a family lawyer practising in the Russian Federation. She is managing partner of a family law firm based in Saint Petersburg. She is an advocate and member of the Saint Petersburg Bar Association. She has the right to represent clients at courts of all levels, including in criminal proceedings throughout the Russian Federation. She specialises in family law, including domestic and international marriages and divorces, division of matrimonial property, drafting of pre-nuptial agreements and other agreements by which spouses agree on issues arising out of their marriage.

Each expert provided a report and a supplemental report. They also produced a joint memorandum dated 7 July 2025.

I emphasise that I am not much interested in the presentation of witnesses – people respond in a myriad ways to scrutiny and pressure - except to the extent that their attitude and approach reveal whether the witness is intending to assist or obstruct the court. I make full allowance that the experts were testifying in a court not of their home jurisdiction. Ms Zakordonskaya testified with the assistance of an interpreter; Ms Yablokova in English, which is not her first language. The experts were very different in personality. Ms Zakordonskaya presented as a self-assured, assertive and at times abrasive character. By contrast, Ms Yablokova was more quietly spoken and hesitant. However, despite these temperamental differences, the experts shared a tendency not to answer the question and to continue to argue the correctness of their professional opinion rather than provide a clear and simple response. It required the court to intervene to refocus both to counsel’s direct questions. There came a point where Ms Yablokova refused to engage with a very simple question from Mr Bradley about whether clause 5.1 would be clear if additional words are added. Ms Zakordonskaya at times answered the question she wanted to respond to rather than providing an answer to the clear question Mr Samek had asked.

I am bound to concur with the claimant’s initial submission that “Given that a foreign judgment cannot be impeached for any error either (1) of fact; or (2) of law [a reference to Dicey Rule 51], the utility of this [expert] evidence for the proper determination of this case is minimal.” The court remains grateful to the experts for the time and energy devoted to this case. Regrettably, much of it has been misdirected and misspent. I have found the expert evidence of limited use. The experts, despite their protestations of professional independence, both acted at times as surrogate advocates on behalf of their instructing party, Ms Yablokova more so than Ms Zakordonskaya. However, I stress that Ms Zakordonskaya was not immune to the erroneous approach. What is remarkable – dismaying – about it all is that the essential kernel of Russian law necessary to determine the main disputes is uncontroversial and agreed. Such dispute as persisted about the remaining issues, I have been able to resolve straightforwardly. There is no great difficulty with the Russian law. The prime rules of contractual interpretation are set out with clarity in the Russian Civil Code (RCC). The court has also been referred to the Russian Family Code (“RFC”).

The principal dissension and controversy arose when the experts (both of them) could not help themselves and instead of confining themselves to the direct question asked, presented their interpretation of the contract. That task is exclusively the province of this court as the Court of Appeal emphasised in BNP Paribas SA v Trattamento Rifiuti Metropolitani SpA [2020] 1 All ER 762 (“BNP Paribas”). Hamblen LJ (as he then was) said at paras 45-46:

“[45] The role of foreign law experts in relation to issues of contractual interpretation is a limited one. It is confined to identifying what the rules of interpretation are.

[46] It is not the role of such experts to express opinions as to what the contract means. That is the task of the English court, having regard to the foreign law rules of interpretation.”

At para 47, Hamblen LJ drew from the speech of Lord Collins in Vizcaya Partners Ltd v Picard [2016] UKPC 5, when Lord Collins said at para 60:

“[60] … Where the applicable law of the contract is foreign law, questions of interpretation are governed by the applicable law. In such a case the role of the expert is not to give evidence as to what the contract means. The role is “to prove the rules of construction of the foreign law, and it is then for the court to interpret the contract in accordance with those rules”: King v Brandywine Reinsurance Co [2005] EWCA Civ 235, [2005] 2 All ER (Comm) 1 (at [68]); Dicey, paras 9–019 and 32–144 (“the expert proves the foreign rules of construction, and the court, in the light of these rules, determines the meaning of the contract”).’”

None of this is in doubt. However, the experts frequently strayed into the forbidden territory. They interpreted that which it was not for them to interpret: the contract. I have, with respect, ignored such views. They have no evidential value. As Hamblen LJ said in BNP Paribas at para 49, such material is “inadmissible and irrelevant evidence.”

Inevitably both parties invite the court to prefer their instructed expert when there is a conflict of evidence. On the evidence presented to me, it is impossible to uniformly choose one expert over the other. Each gave plausible evidence at times. At other times, each of the expert’s evidence was unsatisfactory. I cannot accept the defendant’s closing submission that “the differences between the two experts could not have been starker”. In fact, I found the opposite: they were similar in many ways in the erroneousness of their approach. Neither expert covered themselves in glory. The court takes no satisfaction in stating this. It is just a fact of how the case evolved.

The defendant submits that Ms Yablokova was at all times “plainly trying to assist the court”. I found that on occasions she was intent on arguing the defendant’s case. She sparred verbally with counsel cross-examining her rather than answering questions directly, and she sought to make speeches. Where I can agree with the defendant’s summary of the expert evidence is where it is said that Ms Zakordonskaya was argumentative. At times, she was. I can agree also that she engaged in a degree of impermissible advocacy on behalf her instructing party, the claimant. It was all unnecessary. I do not accept the criticism of her that it was “her practice” to adopt a contrarian view to any question she was asked in cross-examination. But at times she was unhelpfully contentious.

It is only necessary here to provide a few examples of the problematic evidence tendered from the witness box by each expert, before turning to the substance of their evidence on the key issues. When Ms Zakordonskaya was asked about the VCC not mentioning “good faith” in its interpretation of clause 5.2, she maintained that she was “confident that the Court had in fact used all the norms that were applicable and appropriate in the circumstances when they heard that case.” This was purely speculative. On a similar theme, when asked whether either of the impugned courts explained the significance of the express words of clause 5.1 about Ms Timokhina’s “right not to return” sums transferred as family expenses, Ms Zakordonskaya asserted that they had, then failed to justify her assertion. In fact, any fair reading of the VCC and LRC judgments from 2023 makes clear that the courts did not explicitly address the meaning of this key phrase in clause 5.1 in terms. There was no reason for an independent expert to contest what is a matter of record. It was evidence, to my mind, of Ms Zakordonskaya adopting an unnecessarily argumentative approach, as Mr Samek correctly submits. That said, the VCC stated that “by virtue of clause 5.1 of the marriage agreement, Timokhina A.A., in case of saving money directed to the needs of the family, has the right not to return them to her spouse.” The LRC also referred to the “right not to return”. The cross-examination was prolonged unnecessarily - no fault of Mr Samek.

Ms Yablokova fared no better. At times, she fared worse. She made the implausible suggestion, which she failed to support with any case or principle, that in Russia violence in a domestic setting and theft between spouses is not regarded as “dishonourable conduct”. She tried to maintain that after a divorce there is no longer a family. She declined to answer a question in cross-examination because she was trying to “figure out” where counsel was “trying to go” as if counsel were laying a trap. Mr Bradley was not. He was entitled to an answer to a simple, direct question. It required the court’s intervention to elicit it. In respect of the correct test that the Russian court had to apply to decide the degree of contract amendment (here reduction of payable lump sum to Ms Timokhina under clause 5.2), she agreed that the VCC applied the correct proportionality test. That was plainly right. When she was asked about the LRC applying exactly the same law, she said, “I cannot tell you what the right test is.” It was an unhelpful and unimpressive answer. It revealed her partisanship, because by then she had understood the implication of counsel’s relevant and fairly framed question. At another point, she said that she was right and the Russian Supreme Court was wrong.

These are just a few instances. There are many more. It will assist little to document them here, especially as there is much ground to cover to determine the serious issues before the court. However, the flavour of the evidence will be apparent from these extracts. That said, on balance, I preferred the evidence of Ms Zakordonskaya. But I emphasise that which expert provided the more cogent and reliable evidence was highly issue-specific. I deal with the relevant evidence as it appears when I come to the examination of issues rather than providing a large and largely indigestible tract of testimony and heated exchanges in cross-examination here, given that they will have little meaning shorn of the necessary context.

Where the foreign law experts disagree about foreign law, the court should examine the diverse materials placed before it to determine the matter for itself. This was the approach taken by Gloster J (as she then was) in Berezovsky v Abramovich [2012] EWHC 2463 (Comm). She said at para 527:

“It was common ground that it was for the experts to identify the relevant substantive principles of Russian law, and for the court to apply those principles to the facts. At times the experts sought to express their views on the facts of the case. Such views were irrelevant. It was also common ground that where the experts disagreed on the effect of Russian law authorities, the court was entitled, and indeed bound, to look at those authorities to decide the matter for itself. As is stated in Dicey, Morris & Collins at paragraph 9-017:

“If the evidence of several expert witnesses conflicts as to the effect of foreign sources, the Court is entitled, and indeed bound, to look at those sources in order itself to decide between the conflicting testimony.””

This has been my approach to the conflicts between the experts about the content of Russian law. On the main issues, the disputes between the experts were reduced to a table in the joint memorandum. The areas of agreement were the following:

The areas of disagreement, rearranged to fall under the disputed clauses are (questions posed emboldened):

“Clause 5.1

Interpretation of clause 5.1 of the marriage contract

Ms Yablokova

Regarding Clause 5.1 of the PNA, applying the contractual rules of interpretation, the literal wording is very clear: W was entitled to retain the sums paid to her under Clause 5. I in the event that the marriage terminated within 36 months from the date of signing the contract (as occurred).

Ms Zakordonskaya

The wording directly indicates that the funds are being transferred for specific purposes - expenses for four people for specific period - 36 months since the conclusion of the marriage agreement (until 06.06.2020). There are no words about the agreement of the parties that the legal nature of money changes in the event of a divorce or the obligation of Ms Timokhina to spend money on specific expenses terminates in case of divorce. The parties agreed the term of the obligation - 36 months from the date of the conclusion of the marriage agreement - and did not bind the termination of this obligation with the termination of the marriage. This obligation continues, the funds are not a gift or Ms Timokhina's personal property - there are no such words in clause 5.1.

Motivation regarding the recovery of unjust enrichment

Ms Yablokova

There was no basis for the Russian courts' resort to unjust enrichment. The clear provisions of the PNA mean that there could not be a claim for unjust enrichment. H was seeking the return of the relevant sums after the termination of the "parties' marriage (which had terminated within 36 months of the PNA). That is the very scenario that was governed by Clause 5.1 which clearly showed that in such circumstances W had the right not to return the money. That right was unconditional.

Ms Zakordonskaya

The acquisition or saving of property without the grounds established by law at the expense of another person. Unjust enrichment applies to contract if one party transfers funds for certain purposes but the funds were not spent for those purposes.

A recipient of funds to be used for the purpose of family expenses must provide an account of expenditure for those purposes.

The provisions on unjust enrichment are applied to the contracts (Article 1103 of the Civil Code).

The funds under clause 5.1 were transferred for a specific purpose - family expenses.

Since Ms. Timokhina had not paid any family expenses since May 2018, that was, she had not spent money for its intended purpose, these funds are unjustified enrichment and are subject to refund. The courts gave detailed reasons for this

conclusion.

Application of the rules on unjust enrichment in the presence of the contract

Ms Yablokova

The concept of unjust enrichment is irrelevant in this case because the rules of unjust enrichment are not applicable as between civil parties if the money is transferred under a contractual obligation which is valid and is not set aside. Clause 5. I was not set aside and the PNA was not amended to exclude it. (para 120)

Art. 1102 of the RCC prescribes that a person who, without grounds established by law, other

legal acts or a transaction, has acquired or saved of property (acquirer) at the expense of another person (victim), is obliged to return to the latter the unjustly acquired or saved property (unjust enrichment), except for the cases provided for in Article 1109 of the RCC.

Ms Zakordonskaya

Article 1103 of the Civil Code of the Russian

Federation regulates the ratio of contractual and

contingent obligations (obligations arising from

unjust enrichment) and provides for the application of norms on unjust enrichment to contracts.

Clause 5.2

Whether there is a proper legal basis in Russian law for the £100,000 reduction applied by the VCC in its decision dated 24 January 2023.

Ms Yablokova

The VCC’s reasoning is “unclear and confused”.

The decision to amend clause 5.2 is “contrary to the law”, “arbitrary and irrational” and looks like it was made “wrongly to punish” Ms Timokhina for applying to set aside the PNA and/or for her criminal conviction.

Ms Zakordonskaya

Yes. Article 43 of the RFC and Article 450 of the RCC.

By violating clause 6.2 of the PNA, Ms Timokhina violated the fundamental principle of good faith in the performance of civil rights and obligations of such significance that it provides the basis to amend the contract under Article 450 (of the RCC). It is important to note that Ms Timokhina did not dispute that she gave false assurances in concluding the contract.

Whether there is a proper legal basis under Russian law for the £500,000 reduction applied by the Leningrad Regional Court in its decision dated 11 October 2023

Ms Yablokova

The Leningrad Regional Court agreed with the

Vsevolozhsky City Court's conclusion that

Clause 5.2 should be amended. It repeated the

latter's " reasons" (which I consider not to be

based in law or explained and so not to be

proper reasons at all) but went further and

reduced the payable sum to (Rubles equivalent)

£500,000.

Ms Zakordonskaya

Yes. It is the amendment of the agreement - article 43 of the Family Code and article 450 of the Civil Code.

The Court of Appeal agreed with the conclusions of the Court of First Instance.

Mr Timokhin's Clause 5.2 obligation was, pursuant to his counterclaim, amended (reduced) by £500,000. This was a greater amendment (reduction) that the £100,000 ordered by the Court of First Instance.

The Court of the Appeal had the right to agree with the conclusion of the Court of First Instance, but to make an independent conclusion about a different amount of reduction.

(paras 101-104)

The Court of Appeal Judgment was made in accordance with the applicable legal principles.

Violation of assurances as a basis for amendment of

the contract

Ms Yablokova

Applying the 'literal approach', the meaning of Clause 6.2 is clear and straightforward: H and W undertook to perform their duties under the PNA in good faith and to refrain from causing harm to the other spouse including by discrediting their honour, dignity and/or business reputation. It is inherent in this negative obligation that there can be no breach of it by a spouse unless his or her act has in fact caused the other spouse harm.

Ms Zakordonskaya

Clause 6: The parties provided each other with assurances at the conclusion of the Marriage Agreement, including to fulfil their obligations in good faith and to refrain from causing harm to each other, which included the dissemination of information discrediting the honor, dignity and/or business reputation of the other spouse.

The term of the obligation arising from clause 6.2 of the agreement on the inadmissibility of mutual harm ends no earlier than the termination of all obligations arising from the marriage agreement. A violation of clause 6.2 of the agreement is significant (violates the fundamental principle of good faith) and entails a change in the agreement.

Motivation regarding the amendment of the contract

Ms Yablokova

The requirements for the court to amend the regarding the PNA were plainly not satisfied. H did not engage with Art. 43 of RFC or Art 450 of the RCC. Under those provisions, H had to prove there was a “material breach” of the PNA by [wife]. He did not do so.

Ms Zakordonskaya

The courts were guided by article 43 of the Family Code and article 450 of the Civil Code, and based on an examination of the evidence presented in the case file, they concluded that there were grounds for amendment of the contract - a significant violation on the part of Ms. Timokhina. Judicial acts are reasoned in detail. The courts assessed the assurances given by the parties, the principle of good faith and the principle of inadmissibility of abuse of law as essential circumstances, examined the evidence presented in the case and established a violation by Ms. Timokhina of paragraph 6.2 of the marriage contract, which indicates a violation of the fundamental principle of good faith in the performance of civil rights and duties, by virtue of which such a violation is significant and the basis for the court's amendment of the contract by virtue of paragraph 2 of Article 450 of the RCC.”

There are two key areas of dispute about the interpretation of the PNA by the Russian courts. First, about the family expenses transferred to Ms Timokhina by Mr Timokhin under clause 5.1. Second, the lump sum stipulated as payable to Ms Timokhina by Mr Timokhin following termination. Part 1 of the judgment is divided along those lines, before returning to summarise my overall conclusions about the Part 1 defences to enforcement.

Since the dispute about both clauses involves contract interpretation, it will help here to present the key provision in the RCC about interpretation. Article 431 provides:

“Article 431. Interpretation of a contract

While interpreting the terms of the contract, the court takes into account the literal meaning of the words and expressions contained in it. The literal meaning of a contract term, if it is unclear, is determined by comparing it with other terms and the meaning of the contract as a whole.

If the rules contained in part one of this article, do not make it possible to determine the content of the contract, the actual common will of the parties shall be found out, taking into account the purpose of the contract.

All corresponding circumstances are taken into account, including prior negotiations and correspondence, habitual practices in the relationships between the parties, the customs, and subsequent behavior of the parties.”

It is a feature of this case that while both impugned courts derived the purpose of the clause through what the experts called a “systematic” or “systemic” interpretation (what we might call contextual), neither court referred to Article 431 in terms. When Ms Zakordonskaya was asked about this, she stated that because a court did not expressly mention such an elementary provision, “it does not mean it did not use it”. She said that Russian judges in these courts would be “very knowledgeable” about Article 431. I find this evidence plausible: contract interpretation is a fundamental and frequent task for civil courts. In a codified civil law system like the Russian, I can accept that the Russian courts are familiar with the article in its civil code specifically dedicated to the “interpretation of a contract” and called exactly that.

The examination of the clause 5.1 dispute is undertaken under the following heads:

Reprise of dispute

To briefly state the dispute: the clause 5.1 contest between the parties concerns £967,416.67 of the family expenses that Mr Timokhin paid to Ms Timokhina. It is convenient here to reprise the part of clause 5.1 about which intense dispute has centred - the last two lines of the clause:

“In case of termination of the marriage within 36 months from the moment of signing of this Contract, Anna Anatolyevna Timokhina shall have the right not to return to the Husband the funds remaining on the account. If the funds allocated towards the family's needs are saved, Anna Anatolyevna Timokhina shall have the right not to return to the Husband the funds remaining on the account.”

Submissions

The defendant. Ms Timokhina submits that the impugned decisions “ignored any consideration of Cl. 5.1 (and Cl. 5.3) and what it meant and how it impacted on any unjust enrichment claim. That makes their decisions all the more arbitrary and manifestly unjust.” The defendant submits that she has a “complete answer” to the unjust enrichment claim. It is that in Russian law unjust enrichment is subsidiary to the clear words of the contract. It follows that if the contract clearly provides for a certain course, that should be respected by the courts. While neither of the impugned courts referred in terms to Article 431, this article is highly relevant. This is because it provides that there should be a literal interpretation of the words of the contract in the first instance. Unless there is ambiguity, there is no reason to move beyond the literal meaning of the words. There is no ambiguity in the meaning of clause 5.1. The final sentences of clause 5.1 explicitly and unambiguously provide that following termination, Ms Timokhina has a right not to return funds transferred prior to termination by Mr Timokhin for family expenses. That is the only rational meaning of the last two sentences of the clause. Further, this provision makes sense as the parties simply agreed what should happen to funds already transferred in the event of divorce. The clear words of the clause take priority over the concept of unjust enrichment as a matter of Russian contractual interpretation. The VCC and LRC failed to consider what clause 5.1 means “on its face and literally”. Therefore, they reached conclusions that are arbitrary and unjust. These are errors of such degree that the contested judgments should not be enforced: no Russian court acting in good faith could have arrived at such a decision on clause 5.1.

The claimant. Mr Timokhin submits that since the children had been living with him since May 2018, there were no family expenses incurred by Ms Timokhina, and the courts made a modest and reasonable adjustment from the £1.17 he had transferred as family expenses. Ms Timokhina had been unjustly enriched. It is necessary to interpret the purpose of the funds transfer: it was, as the clause states, “exclusively” for family expenses. That purpose remained constant. Therefore, the VCC and LRC are correct in Russian law to order the return of the funds. In any event, any legal error, while not admitted, cannot conceivably approach the impeachment standard necessary and was a reasonable interpretation.

The judgments

In summary, the Russian courts interpreted clause 5.1 to mean that the “earmarked” funds – those transferred to be spent on family expenses – remained so earmarked and could not be used for Ms Timokhina’s “other needs”. The courts concluded that there was a “retained purpose”. Therefore, following marriage termination, the funds are not a personal benefit to Ms Timokhina to do with as she pleases. There remains an enduring purpose to use them for family expenses, the reason they had been transferred in the first place. Since the marriage was over and the children were not living with Ms Timokhina, her retention of the funds amounted to an unjust enrichment.

Relevant passages of the two judgments are now set out with brief analysis at relevant points as issues arise (subsections D and E), before I turn to a more sustained discussion of the rival submissions (subsection F).

VCC on clause 5.1

The VCC stated that Ms Timokhina “received personal funds from Timokhin A.V. intended to pay for monthly family-wide expenses”. It continued that “Under the terms of clause 5.1 of the agreement, the spouse is not allowed to spend the received earmarked funds for other needs.” All this is uncontroversial. The court said:

“… in paragraph 5.3 of the marriage agreement, the parties confirm that the funds specified in paragraphs 4.1.9, 5.1 and 5.2 of the marriage agreement are not alimony obligations.”

Therefore, the VCC specifically referred to clause 5.3. It immediately moved on to consider clause 5.1:

“By paragraph 5.1 of the marriage agreement, the parties agreed that upon dissolution of marriage within 36 months from the date of signing the marriage agreement, Timokhina A.A. has the right not to return the funds remaining in her account intended to pay for family expenses. Also, by virtue of clause 5.1 of the marriage agreement, Timokhina A.A., in case of saving money directed to the needs of the family, has the right not to return them to her spouse.”

Therefore, the VCC specifically considered the content of the final paragraph of clause 5.1. It concluded:

“Thus, by virtue of clause 5.1 of the agreement, the funds remaining on Timokhina A.A.'s account intended to pay for family expenses retained their intended purpose after the dissolution of the marriage and were subject to spending exclusively on the needs of children in accordance with the procedure and amount agreed with Timokhin A.V.

In such circumstances, the court rejects Timokhina A.A.'s argument that from the date of the dissolution of the marriage, her obligation to spend the funds received on the basis of paragraph 5.1 of the marriage agreement for their intended purpose exclusively for family needs ceased, as not conforming to the terms of the marriage agreement.”

Thus, the VCC directly acknowledged Ms Timokhina’s case that the funds became hers and the “exclusive” family expenses purpose “ceased”. The court carefully detailed the rival arguments of the parties in the “descriptive” part of the judgment. It stated:

“… [Mr Timokhin] transferred 967,416.67 pounds to Timokhina AA, in advance for family expenses from June 2017 to June 2020 for 4 family members: husband, wife, two minor children (paragraph 5.1 of the marriage agreement). Since the family broke up in July 2018 (established by the court during the consideration of the divorce proceedings), and the children have been living with their father since May 2018, and therefore Timokhin A.A.'s [sic: should be A.V.’s] obligation to bear family expenses for his spouse has been terminated. In this regard, the funds transferred in advance for the family expenses are subject to return as unjustified enrichment. On 22.11.2018 he sent a claimant letter to A.A. Timokhina about the return of funds in the amount of 967,416.67 pounds, which was left unanswered.” [what I will call “Paragraph X”]

Therefore, it is clear from Paragraph X that the court was mindful of the chronology of events, including the date of entering into the contract (6 June 2017), the date when the family “broke up” (cross-referencing back to the divorce proceedings), and when the children started living with Mr Timokhin, being from May 2018. The VCC continued by describing the contract clauses. On clause 5.1, it said:

“In case of divorce within 36 months from the date of signing this agreement, Timokhina A.A. has the right not to return the remaining funds in the account to the spouse. In case of saving funds aimed at the needs of the family, Timokhina A.A. has the right not to return the remaining funds in the account to her spouse.”

It is clear that the decision rests on the contractual interpretation of the PNA and clause 5.1 in particular. Ms Yablokova accepted that. For the purposes of impeachment – the ground for defending enforcement - one considers whether this interpretation has been reached in bad faith or bias or is so arbitrary that bias can be inferred or is beyond reasonable decision-making. There is nothing in the conclusion of the Russian courts that funds given with a specified purpose retain that purpose that is so outlandish that an inference of bad faith or bias may be made. Where there is a question of contractual interpretation with a range of plausible answers, it is extremely difficult to make good the allegation that the court was deliberately wrong or biased or acted in bad faith. In the instant case, the same interpretation of clause 5.1 has been reached by six different courts. I fail to see why interpreting the clause as deeming funds transferred as having a retained purpose justifies that strong inference argued for by the defendant. I do not find that the suggestion put in cross-examination to Ms Yablokova that the purpose was retained was a desperate “hit and hope” suggestion by the claimant. It was simply putting to her what the different Russian courts, and many of them, had held. It is uncontroversial that the meaning of a contract or its clauses is capable of giving rise to range of possible interpretations, what Nugee LJ in Britvic PLC v Britvic Pensions Limited [2021] EWCA Civ 867 referred to as “rival possible interpretations”. Nugee LJ said at para 69:

“In such cases the language, either by itself, or at any rate once read in context, can be seen to give rise to rival possible interpretations. To resolve which of the rival interpretations is to be preferred the court has recourse to a number of familiar tools and techniques in accordance with the guidance from the Supreme Court cases. This guidance includes the fact that the aim is to ascertain what a reasonable person armed with all the background knowledge reasonably available to the parties would have understood them to have meant; that textualism and contextualism are both tools available for that purpose; that the exercise is a unitary and iterative one; and that the court is entitled to prefer the construction which is consistent with business common sense.”

There is no credible basis for the defendant to make good her claim that by finding a retained purpose in its interpretation of clause 5.1 any Russian court has acted in bad faith or because of bias against her. It is noteworthy that when the case came before the Third Cassation Court in 2021, it reversed the decision of the lower court. While it did not provide its own interpretation of clause 5.1, it tellingly said that legally relevant to the ascertainment of the meaning of the clause were the obligations under which the funds were transferred: “the purpose for which the funds were transferred”.

The Third Cassation Court in 2021 remitted the case to the court of first instance. The VCC next reconsidered the meaning of clause 5.1 in 2023. It held in January 2023 that the funds were “intended to pay for monthly family-wide expenses, which include expenses for utilities, food and clothing for the whole family”, then it continued:

“… by virtue of clause 5.1 of the agreement, the funds remaining on Timokhina A.A.'s account intended to pay for family expenses retained their intended purpose after the dissolution of the marriage and were subject to spending exclusively on the needs of children in accordance with the procedure and amount agreed with Timokhin A.V.

…

In such circumstances, the court rejects Timokhina A.A.'s argument that from the date of the dissolution of the marriage, her obligation to spend the funds received on the basis of paragraph 5.1 of the marriage agreement for their intended purpose exclusively for family needs ceased, as not conforming to the terms of the marriage agreement. By virtue of paragraph 1 of Article 1102 of the Civil Code of the Russian Federation, a person who, without grounds established by law, other legal acts or a transaction, acquired or saved property (acquirer) at the expense of another person (victim), is obliged to return to the latter unreasonably acquired or saved property (unjustified enrichment), except for the cases provided for in Article 1109 of the said Code.”

It therefore found that the purpose for which the funds were transferred – the payment of family expenses – was retained. I am unpersuaded that this was such an impermissible or unreasonable interpretation that the judgment should be impeached because of it. Naturally, reasonable judges may reach different conclusions of law. But the question is not whether it is wrong in Russian law, but so wrong, unreasonable and arbitrary that it should not be enforced, whether because the degree of error permits an inference of bias or bad faith or because it is an interpretation not reasonably open to any Russian court. No one disputes but that this is a demanding threshold.

LRC on clause 5.1

Next, the LRC considered the clause 5.1 question in October 2023. The LRC reached the same conclusion as the VCC when considering the appeal from the VCC’s decision. It is necessary to examine its reasoning, while recognising immediately that it largely replicated that of the lower court. The LRC then gave its view whether the correct substantive norms and circumstances were identified and applied. The LRC heard the “explanations” (submissions) of Ms Timokhina’s lawyer (Lenskaya, A.B.). Once more, the Russian court considered the date of entering into the contract, the date of the marriage becoming “dissolved”. It replicated the VCC’s Paragraph X above in the descriptive part of its judgment. It noted Ms Timokhina’s core position:

“Timokhina A.A. did not agree with the legality and validity of the decision of the Vsevolozhsky City Court of the Leningrad Region dated January 24, 2023, in the part in which her claim was denied, and in the part in which the counterclaim claims were satisfied, filed an appeal, in which she asks to cancel the court's decision in the part in which her claim was denied, to satisfy her demands in full and to deny Timokhin a counterclaim in full as well.”

The LRC noted that Ms Timokhina “believes that the court incorrectly applied the norms of substantive law”. The court described its process:

“Having checked the case materials and discussed the arguments of the appeal, the judicial board for civil cases of the Leningrad Regional Court comes to the following conclusion.”

It proceeded to note that under clause 5.1 (which it terms paragraph 5.1), “in case of divorce” Ms Timokhina has the right not to return “the remaining funds”. The LRC set out its reasoning about clause 5.1, replicating the approach of the VCC:

“After the dissolution of the marriage, the spouse's obligation to bear expenses for the spouse in accordance with the procedure established by the marriage agreement ceased.

In addition, in paragraph 5.3 of the marriage agreement, the parties confirm that the funds specified in paragraphs 4.1.9, 5.1 and 5.2 of the marriage agreement are not alimony obligations.

By paragraph 5.1 of the marriage agreement, the parties agreed that upon dissolution of marriage within 36 months from the date of signing the marriage agreement, Timokhina A.A. has the right not to return the funds remaining in her account intended to pay for family expenses. Also, by virtue of clause 5.1 of the marriage agreement, Timokhina A.A., in case of saving money directed to the needs of the family, has the right not to return them to her spouse.

Thus, by virtue of clause 5.1 of the agreement, the funds remaining on Timokhina A.A.'s account intended to pay for family expenses retained their intended purpose after the dissolution of the marriage and were subject to spending exclusively on children in accordance with the procedure and amount agreed with Timokhin A.V.

Accordingly, Timokhina A.A.'s argument that from the date of the dissolution of the marriage, her obligations to spend the funds received on the basis of paragraph 5.1 of the marriage agreement for their intended purpose exclusively for family needs have ceased is untenable, as it does not comply with the terms of the marriage agreement.”

I am conscious that this is taken from the VCC’s decision, but I include it for completeness. The LRC is an appellate court. It then said:

“The judicial board agrees with the conclusion of the court of first instance, considers it correct, in accordance with the requirements of the law and the circumstances established in the court session.”

The LRC reduced the amount payable under clause 5.2 to £500,000 (see later my discussion of clause 5.2). But the LRC stated that otherwise:

“The judicial board generally agrees with the conclusions of the court of first instance on the partial satisfaction of the claims of the parties, believes that during the consideration of the case by the court, the norms of substantive law were correctly applied and the circumstances relevant to the case were correctly established.”

Discussion of judgments

The defendant accepts that there was nothing on the face of clause 5.1 that following dissolution the purpose the family expenses had been transferred for “somehow changes”. However, I can provisionally agree with the defendant’s submission that any suggestion that Ms Timokhina was obliged to continue to incur family expenses after the dissolution of the marriage is “absurd”, especially given that the children were living with their father. That only goes so far as there is a further question: what should happen with the funds already transferred. The two clear choices are that Ms Timokhina should keep them and do with them as she wishes, or they should be returned to Mr Timokhin. The defendant’s challenge acutely raises what purpose is served by the inclusion of the final sentences of clause 5.1 into the PNA, if not Ms Timokhina’s interpretation that she has an unfettered right not to return the funds.

First, I reject Ms Yablokova’s evidence that upon dissolution the family “ceased to exist”. That is plainly wrong. It appears from the defendant’s closing submission that no reliance is placed on that evidence. Plainly the family subsists, still consisting of mother, father and two children. It is just that the parents have divorced and the subsisting family has splintered. However, little turns on this point.

Second, if the children had remained living with Ms Timokhina, then there is a clear reason why the sums that Mr Timokhin had transferred for family expenses should not be returned to him. As the earlier part of clause 5.1 states, “the purpose of compliance with this procedure” (funds transfer for family expenses) would persist: the children’s needs would result in the “incurrence of such expenses”. The clause makes clear that once Ms Timokhina received the funds, she did not have the discretion to spend them on anything other than the family’s needs. They were to be spent “exclusively for family’s needs”. It is of note that the last sentence, upon which Ms Timokhina places so much reliance, states that “If the funds allocated towards the family’s needs are saved”, that is, not spent, Ms Timokhina has a right not to return them. So much is clear. But what can she then do with them? The Russian courts held that the purpose for which the funds are transferred remains: family needs. If there are no expenses incurred in meeting the children’s needs because they were no longer living with Ms Timokhina and there are no longer any general or shared family expenses, the funds remain in her possession for a purpose that ceases to exist. Either she is then granted a personal benefit under the contract or she is unjustly enriched.

It is not for the English court to provide the definitive interpretation. It seems to me that both these interpretations of clause 5.1 are reasonable. I cannot think that where there is a very specific purpose for the transfer of funds under a contract clause and that purpose no longer exists, no reasonable Russian court could find that the purpose for which the funds were given is retained. Reduced to its simplest terms, the Russian courts held that Purpose A remains Purpose A. Ms Timokhina contends that Purpose A becomes Purpose B, even though there is no express statement in the contract that the purpose changes following termination.

Supporting the reasonableness of the Purpose A remaining Purpose A interpretation is that clause 5.1 says nothing about the situation where the children cease to live with the defendant. The Russian courts were obliged to grapple with that exact situation, not explicitly addressed by the contract. They concluded that since the funds were given for a specified purpose, that purpose for which the funds must be used is not suddenly extinguished on dissolution. That seems to me a reasonable interpretation of clause 5.1. I do not accept that the interpretation must only be literal. There is ambiguity. The contract is silent about what should happen in the event of the critical change of circumstances that took place here: the children no longer living with Ms Timokhina and thus no longer needing her to incur expenses to meet their needs. In each contested judgment, the Russian courts made specific reference to the children no longer living with Ms Timokhina after May 2018. That is a relevant factor.

The defendant submits that the interpretation of the Russian courts “ignores” clause 6.9 and RFC Article 43. These provisions are about obligations not continuing after the dissolution of the marriage. To repeat the key element of clause 6.9, it states that the contract shall cease to have effect at termination “except for the obligations which have been stipulated by the Contract for the period after termination of the marriage.” Article 43 of the RFC provides:

“1.

The marriage contract may be amended or dissolved at any time by an agreement between the spouses. The agreement on the amendment or on the dissolution of a marriage contract shall be made out in the same form as the marriage contract itself. A unilateral refusal to execute a marriage contract shall not be admissible.

2.

Upon the claim of one of the spouses, the marriage contract may be amended or dissolved by a court decision on the grounds and in conformity with the procedure established by the Civil Code of the Russian Federation for the amendment and the dissolution of a marriage contract.

3.

The operation of the marriage contract shall cease as from the moment of termination of the marriage (Article 25 of the present Code), with the exception of those obligations which are envisaged by the marriage contract for the period after the termination of the marriage.”

The claimant complains that these arguments were not made to the Russian courts. If clause 6.9 amounted to a valid objection to Mr Timokhin’s unjust enrichment claim, such objection should have been made in Russia, as the unjust enrichment issue was considered in the Russian courts. In this the claimant relies on the comments of Cranston J in OJSC at para 8 that “a defendant must take all available defences in the foreign court and if they are at fault in not doing so, may not impeach the foreign judgment in England”. Cranston J relied in turn on the observations of Stephenson LJ in Israel Discount Bank v. Hadjipateras [1984] 1 WLR 137 (“Hadjipateras”). It repays citing the extended passage referenced by Cranston J. to see the strength of the Court of Appeal’s position on this topic. Stephenson LJ said at 144 C-H:

“Mr. Crookenden, in his courageous argument for the second defendant, has submitted that none of the judgments in those cases stresses the fact that the foreign law differed from our own; but there was no reason why they should. But for that fact, the judges would not have had the cases to consider or any question of public policy to decide. It is that fact which distinguishes those cases from the present case, because the law of New York must be assumed to allow undue influence as a defence to the agreements which the second defendant wants to argue are invalid; and, because he thinks he can do better defending the bank's claim in England, he has deliberately chosen not to argue that defence in the New York court, where it was available. But a defendant must take all available defences in a foreign court. The judgment of the Court of Common Pleas in Ellis v. M'Henry (1871) L.R. 6 C.P. 228, 238, is old authority for this rule, and the judgment of Leggatt J. in Tracomin S.A. v. Sudan Oil Seeds Co. Ltd. (No. 2) (1983] 2 All E.R. 129 is a very recent illustration of it.

In Ellis v. M'Henry, L.R. 6 C.P. 228, Bovill C.J., giving the judgment of the court which consisted of himself, Willes, Keating and Brett JJ., said, at p. 238:

“The first action, however, is upon a judgment which was recovered after the deed was completed. In the view which we take of this case, the deed might have been set up as a defence to the action brought in Upper Canada; and it is averred, as a matter of fact, in the third replication, and not denied, that it might have been so pleaded. The question then arises, whether it can now be brought forward in the proceedings as an answer to the judgment. When a party having a defence omits to avail himself of it, or, having relied upon it, it is determined against him, and a judgment is thereupon given, he is not allowed afterwards to set up such matter of defence as an answer to the judgment, which is considered final and conclusive between the parties.”

That is not, it is true, a judgment dealing with public policy, but it seems to me that that statement of the law, which is plainly good sense and in line with considerations of comity and the duty of the courts to put an end to litigation, is conclusive of this case.

It is impossible for the second defendant, who is at fault in not raising this defence in the New York court, to impeach the court's judgment. That failure, in my opinion, destroys both the defences which he wishes to argue, and it would not be contrary to public policy to enforce the judgment in the New York action or the agreement of guarantee and submission to the jurisdiction of the New York court on which that judgment is based. The law is clearly against the second defendant, and in my judgment this court should say so now by giving judgment against him.”

In light of the Court of Appeal’s approach in Hadjipateras and Cranston J’s in OJSC, the claimant makes a valid criticism of the defendant’s approach. No or no adequate explanation has been proffered by the defendant for her clear failure to argue the clause 6.9 point. However, I am prepared to consider the merits of the point, in any event.

The defendant submits that Ms Timokhina’s obligation to incur family expenses ended with dissolution. This point adds little because the key question is not whether she was obliged to continue paying out to meet the family’s general needs or those of the children, but the conceptually separate question whether the purpose for which the funds were transferred remained attached to them. It is essentially that same argument as already considered. Ms Zakordonskaya agreed in evidence that the obligation to use the funds for family expenses after dissolution was not expressly stated in the PNA. This is true. But it does not definitively answer the essential point: whether there is a retained purpose. That said, the absence of a positive expression of retained purpose in the contract is a point in favour of Ms Timokhina’s interpretation, while at the same time being indicative of ambiguity.

The defendant submits that it is “difficult to see what the point of the final paragraph of clause 5.1 is” if not an unfettered right for Ms Timokhina to keep the funds. The difficulty facing the Russian court, and a difficulty with the defendant’s submission, is that the right to not to return within the clause does not indicate what the purpose of the right to retain is. The PNA certainly does not state that the retained funds could be used by Ms Timokhina for her own exclusive benefit or in any way she chooses. The defendant submits that the silence equates to her licence to do as she wishes with the saved funds. While it is unnecessary and inappropriate for this court to determine the definitive meaning of clause 5.1, there is an obvious and reasonable answer to the defendant’s rhetorical question about “the point of the final paragraph”. It arises due to the factual circumstances of the case, always an important context to an objective interpretation. In cases of ambiguity, the ascertainment of meaning of the clause arises from examining the clause itself as a whole and the contract as a whole. When the children were living with Ms Timokhina, ordinarily she would have to pay out the expenses to meet their needs. This is plainly the impetus for clause 5.1. Mr Timokhin was “assigned” the obligation for funding the family expenses. The funds were to be transferred by him to her. She would take the practical steps to settle the expenses. This procedure makes little sense if the children were living with Mr Timokhin and Ms Timokhina was in fact settling none of the family expenses. He would be meeting the children’s needs himself if they were living with him and the transfer of funds to Ms Timokhina if she was meeting none of their needs makes no sense. If the children were still living with Ms Timokhina after termination, the clause makes good sense. This was the essence of the decisions of the Russian courts. It is well expressed by the LRC in 2021 (a decision upheld by the Russian Supreme Court in 2022). The LRC was reviewing the decision of the VCC in 2020 on appeal (the VCC 2020 decision was also upheld by the Russian Supreme Court). The LRC surveyed the operation of clause 5.1:

“The court of first instance also found and the case file confirms that on 12.06.2017 Mr Timokhin transferred GBP 1,170,000 in monthly expenses for 36 months to Ms Timokhina in accordance with clause 5.1 of the prenuptial agreement.

As mentioned above, pursuant to clause 5.1 of the prenuptial agreement, the amount of monthly expenses include all family expenses for all family members: mother, father, two children and is GBP 32,500 (GBP 8,125 per month (GBP 270.83 per day) for each family member).

The enforceable court judgement in civil case o 2-857\2017 established that the actual marital relationship between the spouses had terminated since 18.07.2017; they did not live together and did not maintain a common household.

Part 2 of Article 61 of the Civil Procedural Code of the Russian Federation stipulates that the circumstances established by an enforceable judgment in an earlier case are binding on the court. These circumstances shall not be proved again and shall not be challenged in another case involving the same persons.

Accordingly, since 18.07.2017, Ms. Timokhina, who held money for the maintenance of all four family members in advance for three years, had not incurred any expenses for Mr. Timokhin's life and necessities, and the previously transferred amount had not been repaid by her. ln addition, since that date Ms. Timokhina had not incurred any expenses for the maintenance of her minor children. Based on an order of the Central Family Court of London dated 16.05.2018 in case ZC17P0064L [the text then identifies the two children] have resided with Mr Timokhin since 17.05.2018 to date which the parties have not disputed, and all child maintenance costs are borne by Mr Timokhin. (emphasis provided)

In partially satisfying Mr Timokhin's claim for recovery of the money from Ms Timokhina, the court of the first instance had reasonably proceeded from the existence of a set of conditions for an obligation to arise out of unjust enrichment, which included: the existence of enrichment at the expense of another person and the absence of a legal ground for such enrichment. The judicial board also agrees with the submitted debt calculation, as does the court's conclusion to reject Mr Timokhin's claim to delete clause 5.2 and its reference in clause 5.3 from the prenuptial agreement dated 06.06.2017, as there is no legal ground for doing so.”

To digress momentarily, we see again how Mr Timokhin’s clause 5.2 deletion application was rejected by the VCC, a decision replicated by the LRC, and far from indicating a settled hostility towards Ms Timokhina. Put bluntly, Mr Timokhin did not get everything he wanted from the Russian courts. Returning to clause 5.1, one sees the careful explanation for the rationale for clause 5.1 and how it operates. We see what lies behind the reduction of the sum Ms Timokhina had to pay back from the £1.17m originally transferred to her by Mr Timokhin, down to the £967k ultimately ordered.

Therefore, an obvious answer to “the point” of the final paragraph of clause 5.1 rests on the assumption that the children would be living with Ms Timokhina after termination. If they were, Ms Timokhina not returning the family expenses would insulate her from the burden of having to make immediate financial relief applications - she would have the benefit of the balance of funds designated and agreed to be used for family expenses. As can be seen from the emboldened extract from the LRC decision above, the Russian courts were intensely focused on who was in a practical way settling the expenses. That depended on the living arrangements. This is why the LRC said “and all child maintenance costs are borne by Mr Timokhin”. I emphasise that the impugned Russian courts in 2023 do not spell out their conclusion about “retained purpose” in precisely this way. But we are considering Ms Timokhina’s submission that there is effectively no other explanation for the final paragraph of clause 5.1 but to transform the purpose into one for her personal benefit. Looking at the LRC’s reasoning above, the focus on which parent settled (has “borne” in the LRC’s word) the “child maintenance costs” is a logical and reasonable explanation for why the final paragraph of clause 5.1 assumes the form it does, viewed objectively. Should Ms Timokhina have the children living with her after termination, having a right to not to return the saved family expenses makes sense. Such a plausible explanation for the clause 5.1 post-termination arrangements meets the defendant’s criticism that the contested decisions are arbitrary, in other words, not capable of being rationally explained on the facts of the case. I find that the opposite is true. There is a rational explanation for the content of the final paragraph of clause 5.1, objectively viewed, given the nature of the family expenses arrangements viewed in the round. The problem has arisen because the purpose of Ms Timokhina’s right not to return has not been spelled out in clause 5.1. This ambiguity required the Russian courts to interpret the contract systematically or in context. The impugned courts reached reasonable conclusions about the purpose of retention.

Clause 5.1 is directed at family expenses, clause 5.2 at compensation “to the wife”. It bears remembering the title of clause 5 as a whole, how it is a procedure for incurring family expenses “and of payment of a compensation to the wife in case of termination”. Therefore, the clause deals with the payment to Ms Timokhina of “a compensation” in case of termination. The impugned courts have interpreted the contract to support Ms Timokhina’s claim that she is nevertheless entitled to the clause 5.2 payment following termination, albeit they have reduced its amount. That is clearly a form of compensation as mentioned by the overall title of clause 5. The construction Ms Timokhina advances here and advanced to the Russian courts is that the unused (“saved”) family expenses under clause 5.1 also are retained for her benefit, which must be another form of compensation on termination. Against this, the interpretation of the meaning of clause 5.1 by the Russian courts is that the right to retain does not equate to a right to be enriched or right to be further compensated. This is evident from the reasoning of each impugned court. It is a reasonable interpretation. I turn now to examine unjust enrichment in more detail.

Unjust enrichment

As to unjust enrichment, there is no dispute between the parties about the substance of governing Russian law, as opposed to its contested relevance and applicability. Article 1102 of the RCC provides:

“1.

A person who, without the grounds established by law, other legal acts or a transaction, acquired or saved property (the acquirer) at the expense of another person (the victim), is obliged to return to the latter the unreasonably acquired or saved property (unjust enrichment), except for the cases provided for in article 1109 of this Code.

2.

The rules provided for in this chapter apply regardless of whether the unjust enrichment was the result of the behavior of the property’s acquirer, the victim himself, third parties, or occurred against their will.”

It is notable that the provision applies to property “unreasonably acquired” or “saved”. Mr Timokhin’s case is that the transferred funds were saved in the sense of not being spent to meet family expenses. Further, clause 5.1 specifically addresses the question of “saved” funds in the case of marriage dissolution. The defendant’s key submission on this point is that the concept of unjust enrichment applies on a “subsidiary basis” (Supreme Court of the Russian Federation, Order dated 9 July 2024) unless the rules, terms or essence of the contract provide otherwise. Reliance is placed on Order of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated April 1 2024. It held:

“the provisions on unjust enrichment are applicable insofar as the rules on the relevant contract and the contract itself do not provide otherwise. … the rules on unjust enrichment … are subsidiary in relation to the rules on the relevant contract.”

Ms Timokhina’s case is that the clear words of the last paragraph of clause 5.1 is an instance of a contract providing “otherwise”. Thus, unjust enrichment is inapplicable. As noted, under Russian civil law, the interpretation of a contract follows Article 431. This much was agreed by the experts. Therefore, when interpreting the terms of the contract such as clause 5.1, the court “takes into account” the literal meaning. If the literal meaning is unclear, the court considers wider contextual matters, the “systematic” or “systemic” interpretation. The actual label does not matter. Ms Timokhina submits that the clarity and unambiguousness under the final paragraph of clause 5.1 of her right not to return the transferred funds means that a literal interpretation is the valid one and the concept of unjust enrichment is inapplicable – her complete answer. This submission requires serious consideration. Much store is placed on it.

Ms Timokhina relies on the Third Cassation Court’s consideration of the case in July 2021. It stated that clause 5.1 entitled Ms Timokhina “not to return the remaining monies to her husband. The same rule applied when the wife saved money for the family's needs.” This Third Cassation Court judgment was not referenced by either the VCC or LRC in 2023 following the case having been remitted. It is submitted that it is “bizarre” that the lower courts did not refer to this Third Cassation Court decision. However, this decision of the Third Cassation Court was overturned on Mr Timokhin’s appeal to the Russian Supreme Court in respect of the set aside claim. As to the balance of the issues, they were remitted to be determined afresh. A number of further points arise.

First, the defendant submits that the claimant’s case involves absurdity and “Kafkaesque” suggestions. Thus, the suggestion that Ms Timokhina continued to be under an obligation to spend money on family expenses “even after the end of the marriage” (original emphasis) is “absurd”. However, that is not the question. The question is whether the funds transferred to the defendant during the marriage for family expenses retained that purpose after the marriage’s termination, a different question. It is correctly submitted on behalf of Ms Timokhina that Ms Zakordonskaya agreed that the obligation to spend money on family expenses is not expressly stated in the contract. But in a similar way, the question is whether the funds retain their pre-termination purpose. The defendant alleges that it is “Kafkaesque” to suggest that Ms Timokhina “could only keep and not return those monies if she could prove she had spent them for family expenses”. While Ms Zakordonskaya did say that the defendant “failed to produce a single shred of evidence … that she had used those funds on at least one specific purpose indicated”, that was clearly a reference to those parts of the transferred funds spent (£1.17 million was transferred; the courts order £967k to be returned). A further absurdity point is made about the impugned judgments. For example, the VCC stated:

“Timokhina A.A. did not provide any confirmation of the expenditure of funds for general family needs in accordance with the procedure established by the agreement to the court and the defendant, as well as evidence of coordination of expenses with Timokhin A.V.”

Ms Timokhina complains: how could she provide confirmation that she has spent funds on “general family needs” when she has not spent them? The likely answer to this is to read the passage in context, invariably a sound approach. The preceding extract reads:

“In accordance with the peculiarity of the subject of proof in cases of recovery of unjustified enrichment, the plaintiff is obliged to prove the fact that the defendant acquired (saved) property at the expense of the plaintiff and the absence of legal grounds for such enrichment, and the defendant is obliged to prove the existence of legitimate grounds for the acquisition (saving) of such property or the existence of circumstances in which unjustified enrichment in The force of the law is non-refundable.”

Therefore, the VCC was examining unjust enrichment. In accordance with Russian law, it states that once the plaintiff (Mr Timokhin) has proved enrichment, it is for the defendant (Ms Timokhina) to prove “the existence of circumstances” justifying why under “the force of law” the acquired funds are “non-refundable”. In that context, the VCC is plainly indicating that Ms Timokhina has not provided “confirmation” for why she would need to continue to expend funds for “general family needs”. This goes hand in hand with the court’s conclusion about retained purpose. Further, one must be cautious about interpreting judgments, especially from a different jurisdiction and in translation, as if they are statutes. They are not.

Second, “the right not to return appears twice”. This submission by the defendant is accurate. The submission continues that the impugned decisions interpret clause 5.1 “point blank contrary to the unequivocal words” of the last paragraph. However, the question is with what purpose the funds may be retained.

Third, the clause is silent on the purpose that the funds are retained for. Put another way: the clause does not say that the funds change their purpose or can be used by Ms Timokhina for her personal (as opposed to family) benefit.

Fourth, as noted, it is submitted that the “construction” of clause 5.1 in the impugned decisions “ignores” clause 6.9 of the contract and Article 43 of the RFC. However, the true question arising may be properly viewed not so much about Ms Timokhina’s “obligation”, but the status of funds, whether they become “hers”. It will not do to assert that the words of the final sentences of the clause are the “expressed will” of Mr Timokhin (and presumably Ms Timokhina also) about the use of the funds. The words beg a question: Ms Timokhina has a right not to return them, but the purpose the retention is granted for is not explained. This is precisely why the Russian courts were obliged to interpret the clause.

Fifth, it is submitted that a “surprising” suggestion was put to Ms Yablokova in cross-examination: that should the defendant keep the funds as hers after dissolution that would amount to a “windfall”. It is said to surprise because the balance of the division of assets had Mr Timokhin “coming out substantially on top”. It is important to retain focus. The question is whether the transferred funds retain their purpose or can be used for Ms Timokhina’s personal benefit and not reopen the entire contract and examine its “fairness” or otherwise – a question that I consider under Part 2. I find the overall division of assets of limited usefulness in interpreting clause 5.1 on family expenses.

Sixth, it is submitted on behalf of the defendant that if the parties intended to make the funds “conditional in any way” they could have done so. This is matched by the point that if the funds were to change purpose and become disposable for Ms Timokhina’s benefit, the parties could have equally said so. They explicitly stated neither of these things. These rival submissions point to an ambiguity in the meaning of the final paragraph of clause 5.1. The clause states which party keeps the transferred funds after termination, but not why. I will return to the question of ambiguity.

Seventh, the defendant points out that there is “a string of English cases” establishing there is no concept of a trust in Russian law (Berezovsky v Abramovich [2012] EWHC 2463 (Comm), paras 311, 528; Slutsker v Haron Investments Limited [2012] EWHC 2539 (Ch), para 135). This does not advance the defendant’s case. The question is whether the funds retained their purpose as a matter of contractual construction, not whether by some implicit mechanism a trust was established. Ms Timokhina does not dispute that prior to termination, the funds were legitimately transferred and she held them “exclusively” for the purpose explicit in the contract. The two Russian courts found that this purpose was retained and thus Ms Timokhina was unjustly enriched.

Eighth, one must return to the question of contractual interpretation. A serious difficulty for Ms Timokhina’s position is that the clause is entirely silent on the purpose for her retention after dissolution. This engenders obvious ambiguity in the clause. That entitles the Russian courts to adopt a systematic/systemic interpretation to determine what the purpose of the retention is. The clause certainly does not say that Ms Timokhina retains the saved funds for her personal benefit. The question is whether the conclusion both impugned Russian courts reached that the funds retained their purpose was reasonably open to them. I emphasise that it is no part of this court’s function to fill the gaps in the judgments of the Russian courts. I return to Ms Timokhina’s rhetorical question as much weight is placed on it. The Russian courts were attentive to the chronology and noted that the children were no longer living with Ms Timokhina. The suggestion is that there could be no other (rational) purpose for the final paragraph of clause 5.1 except that the saved funds changed their purpose from being “exclusively” for family expenses into becoming funds available for Ms Timokhina’s personal benefit. If there was no other rational explanation for Ms Timokhina retaining the funds after dissolution except for her personal benefit, then her case would be fortified. But there is an obvious explanation for retention, in the event that the children remained living with Ms Timokhina.

Ninth, implied term. Ms Zakordonskaya accepted in cross-examination that in Russian law there is no concept of implied terms. However, there is no dispute that in cases of ambiguity, the contract may be interpreted in a way beyond the literal and the meaning of the contract or one of its clauses ascertained contextually. That is what has happened here.

Discussion: clause 5.1

It is submitted by the defendant that unjust enrichment was found with “no proper basis” and “illustrates par excellence the completely arbitrary decisions against [Ms Timokhina]”. I reject that submission. I emphasise that while I have had regard to the experts’ assistance on the content of Russian law, I have placed no reliance on the interpretations they variously offered about the contract. That is the province of this court (BNP Paribas, para 49). In closing submissions, the parties pointed to this or that absurdity in the contract interpretation provided by the rival expert. This assisted me little.

The Russian courts considered the relevant clauses in the contract. They considered Mr Timokhin’s counterclaim application (return of the family expenses) and the basis of it. They rejected Ms Timokhina’s “argument” that following dissolution of the marriage, the “intended purpose” for which the funds were transferred “ceased”. They concluded, reducing their conclusion to essentials, that funds transferred during the marriage “exclusively” for Purpose A retained Purpose A following termination. In the absence of any express indication within the clause or the wider contract that Purpose A becomes Purpose B (gift/personal benefit to Ms Timokhina), that silence and hence ambiguity, entitles the Russian court under Russian law to move from literalist to a wider contextual (systematic) interpretation. When the wider context is examined, the retained purpose conclusion is reasonable.

I reject the submission that the LRC failed properly to re-examine the case in accordance with Article 327.1 of the Civil Procedure Code. As Article 327.1(1) provides, the appellate court “considers the case within the limits of the arguments set out in the appeal and objections to the appeal.” In respect of the clause 5.1 dispute, the LRC did this. Further, of note is the approach to a wider survey of legality on appeal. Article 327.1(2) provides:

“2.

In case if only part of the decision is appealed in the course of appeal proceedings, the court of appeal instance examines the legality and validity of the decision only in the appealed part.

The court of appeal, in the interests of legality, has the right to examine the decision of the court of first instance in full.”

The first part of the provision confines the duty of the court to examine the legality and legal validity of the lower court decision insofar as it is appealed. However, an appeal court has a “right”, rather than a duty, to examine the full decision. I judge that there is no viable basis to conclude that the LRC failed in respect of Article 327.1. The LRC has a discretion about how to apply Article 327.1 and the extent of the scrutiny necessitated in the appeal before it. I cannot find this is a valid ground to impeach the LRC judgment.

I emphasise that I do not consider whether the retained purpose interpretation is the “right” decision under Russian law. I consider whether it was a conclusion reasonably open to the VCC and LRC. It plainly was. Using the Maximov test, it cannot be said that no reasonable Russian court could have reached the retained purpose conclusion. The defendant is perfectly entitled to claim that the decisions are wrong in Russian law. However, there is a rational basis for these two conclusions. Their decisions are not evidence of bias or hostile intent towards Ms Timokhina; they are not deliberately wrong, or arbitrary or so wrong that they should not be recognised or enforced. Other Russian judges or constitutions of the Russian court may disagree. Certainly, the next two appellate tiers of the Russian legal system, the Third Cassation Court and the Russian Supreme Court confirmed the 2023 decisions of the VCC and LRC on clause 5.1. But I judge both interpretations – unfettered right not to return and retained purpose – to be reasonable. I reject the defendant’s characterisation of retained purpose as “plainly spurious”. Further, the retained purpose interpretation is not punitive. It is not a perverse refusal to apply the law. It does not offend against English views of substantial justice. The impugned judgments in finding a retained purpose do not violate natural justice, nor is such conclusion incompatible with Ms Timokhina’s Convention rights. It is not a denial of justice. There is a clear, rational and reasonable legal basis under Russian law. It is one that Ms Timokhina continues to refuse to accept.

Conclusion: clause 5.1

Ms Timokhina has not established any valid defence to impeach the judgments on the clause 5.1 basis. The defences to enforcement under clause 5.1 fail.

Introduction

The submissions on the clause 5.2 challenge ranged widely. Happily, they are capable of organisation and simplification.

Mr Timokhin applied to amend clause 5.2 because of two things (1) Ms Timokhina’s false assurances and (2) her distributing of discrediting data (clause 6.2 breaches). Ms Timokhina admits that she gave false assurances when the contract was being concluded. She pleaded guilty to bribing a Russian official to cause business damage to Mr Timokhin and to pressurise him in their ongoing litigation. When the criminal proceedings were appealed, the Russian court amended the charge to attempted bribery, but the intent to harm Mr Timokhin by distributing discrediting data was not overturned or doubted. Accordingly, Mr Timokhin sought an amendment of the lump sum payable under clause 5.2 from the stipulated £1 million to £100,000, a 90 per cent reduction in light of Ms Timokhina’s breaches. The VCC granted the amendment, but only reduced the amount by 10 per cent. The LRC amended the contract further, deeming £500,000 payable under clause 5.2. Thus, the ultimate position was of amendment of the contract to reduce the amount payable to Ms Timokhina under clause 5.2 of the contract by 50 per cent as opposed to the 90 per cent reduction Mr Timokhin sought.

Defendant’s submissions. Ms Timokhina submits that Mr Timokhin made a “monstrous” and “fallacious” application in Russia to “delete” clause 5.2 entirely or reduce the lump sum payable to £100,000. There is a fundamental flaw in the claimant’s case, wrongfully endorsed by the Russian courts: reliance “on breach of an obligation which was not expressed to continue after termination of the marriage, where the alleged breach occurred after termination. Yet that is what he did, and that is what the Russian courts held.” All the matters of alleged breach relied on occurred “after the end of the marriage and thus after the end of the PNA”. Further, there is no evidence of damage, let alone the necessary “significant damage” required to justify a contract amendment under Russian law. None of this, it is submitted, is “rocket science”.

Claimant’s submissions. Mr Timokhin submits that the Russian courts were plainly correct: there was a duty to act in good faith after termination. That included a duty not to distribute discrediting data under clause 6.2, which remained operative. Ms Timokhina’s false assurances and discrediting acts met the amendment test: they “largely deprived” him of what he expected under the contract – not to distribute discrediting data.

I briefly introduce the two mechanisms for contractual amendment as a context, before turning to extracts from the two contested judgments on the clause 5.2 dispute.

Mechanism

The legal mechanism to amend a contract is established under Russian law. The two courts read Articles 431.2 and 450(2) together. Article 450(2) provides for amendment and termination of a contract. A party may request either course “in the event of a significant breach of contract by the other party”. Article 450 provides:

“Article 450. Grounds for amendment and termination of the contract

1.

The amendment and termination of the contract is possible by agreement of the parties, unless otherwise provided by this Code, other laws or the contract.

A multilateral contract, the execution of which is related to the implementation of entrepreneurial activities by all its parties, may provide for the possibility of changing or terminating of such a contract by agreement of both all and most of the persons participating in the said contract, unless otherwise established by law. The contract specified in this paragraph may provide for the procedure for determining such a majority.

(paragraph was introduced by Federal Law No. 42-FZ dated 08.03.2015)

2.

At the request of one of the parties, the contract may be amended or terminated by a court decision only:

1)

in the event of a significant breach of contract by the other party;

2)

in other cases stipulated by this Code, other laws or a contract.

A violation of the contract by one of the parties is considered significant, which entails such damage to the other party that it is largely deprived of what it was entitled to expect when concluding the contract.

…

4.

A party to whom this Code, other laws, or a contract grants the right to unilaterally amend the contract must act in good faith and reasonably within the limits provided for by this Code, other laws, or the contract when exercising this right.”

Thus - and this is a key battleground - a breach is considered significant if it “entails such damage to the other party that it is largely deprived of what it was entitled to expect when concluding the contract.” Amendment of the contract is a form of partial withdrawal. It no longer appears contested that a partial withdrawal from a contract is permitted under Russian law and operates akin to a contract amendment. Certainly, Ms Zakordonskaya’s evidence about this was not challenged. It is clear why her evidence could not realistically be opposed given the terms of the relevant article. However, the question remains about whether the facts meet the stipulated requirements.

Article 431.2 deals with false or “unreliable assurances” given when concluding a contract. Article 431.2 provides:

“2.

A party that has relied upon unreliable assurances of the counterparty, which are of major importance to it, has the right to demand compensation for losses or a penalty, and also has the right to withdraw from the contract, unless otherwise provided by the agreement of the parties.”

The claimant points out that in opening the case, the defendant failed to mention false assurances at all in respect of clause 5.2, even though the VCC and LRC explicitly cited Ms Timokhina’s false assurances as part of the justification for contract amendment. Indeed, in closing submissions, the defendant submitted that “There was therefore no basis at all to cross-examine [Ms Yablokova] on the premise that the Russian courts had amended Cl. 5.2 under any article other than Article 450.” As will be seen, Article 431.2 was explicitly cited by both impugned courts. Indeed, in cross-examination Ms Yablokova accepted that the Russian courts found the Article 431.2 test satisfied. Her evidence is that the determination is wrong, but there is no dispute but that this was the finding made by the Russian courts. Therefore, if there are unreliable assurances, a party may apply to withdraw from the contract, but if the unreliable assurances are “of major importance” to the party seeking the right to withdraw. The withdrawal sought may be total (termination) or partial (amendment). Ms Timokhina admitted that she made unreliable assurances in concluding the contract as both the Russian courts recorded. Plainly, the mutual assurances the parties exchanged on entering into the contract are of “major” importance. Ms Timokhina admitted in Russia that her assurances were materially false.

That said, amendment is not restricted to unreliable assurances. Other significant breaches, if satisfying the Article 450(2) conditions, may entitle a party to have the contract amended (see above).

As noted, the Russian courts also found breaches of clause 6.2, a matter that must be examined.

VCC on clause 5.2

As relevant to the clause 5.2 dispute, the VCC first dealt with false assurances:

“The fact of giving false assurances at the conclusion of a marriage agreement regarding fairness, profitability, and the absence of circumstances preventing the spouse from concluding a marriage agreement on extremely unfavorable terms by Timokhina A.A. is not disputed.

Under such circumstances, Timokhin A.V.'s argument that at the conclusion of the marriage agreement Timokhina A.A. gave her spouse false assurances should be recognized as justified.”

It then moved on to consider the law:

“Paragraph 2 of Article 432.1 of the Civil Code of the Russian Federation establishes that the liability provided for in Article 432.1 of the Civil Code of the Russian Federation occurs if the party who provided false assurances assumed that the other party would rely on them, or had reasonable grounds to assume such an assumption.

The parties included the assurances given to each other in section 6 of the marriage agreement, which is an integral part of it, which means that when determining the terms of the marriage agreement they reasonably relied on the reliability of mutual assurances and recognized their essential importance for determining other terms of the marriage agreement and the procedure for their execution.

According to the resolution of the Plenum of the Supreme Court of the Russian Federation dated 25.12.2018 No. 48, if the assurance is provided by a party regarding circumstances not directly related to the subject of the agreement, but relevant to its conclusion, execution or termination, then in case of unreliability of such assurance, Article 431.2 of the Civil Code of the Russian Federation applies, as well as provisions on liability for breach of obligation (Chapter 25 of the Civil Code of the Russian Federation).

If the assurance provided by the party to the agreement is unreliable, the other party relying on the assurance that is essential to it, along with the application of the liability measures specified in Article 431.2 of the Civil Code of the Russian Federation, has the right to withdraw from the agreement (Articles 310 and 450.1 of the Civil Code of the Russian Federation), unless otherwise provided by agreement of the parties (paragraph 2 of Article 431.2 of the Civil Code of the Russian Federation)."

One immediately sees the multiple references to Article 431.2. Next the VCC examined the legal significance of the grounds for Ms Timokhina’s appeal that the contract was invalid:

Having examined the false assurance basis, the VCC turned to Mr Timokhin’s claim that the defendant had breached clause 6.2. The court dealt first with the false criminal complaint by Ms Timokhina:

“Timokhin A.V. also stated that Timokhina A.A. had not fulfilled the obligation set out in paragraph 6.2 to faithfully fulfil her obligations under the agreement and refrain from causing any harm to the other spouse, including not spreading information discrediting the honor, dignity and/or business reputation of the other spouse.

The case file contains the verdict of the Moscow District Court of St. Petersburg dated 05.09.2018 in case No. 1-632/18, which established that Timokhina A.A. admitted her guilt in committing a criminal offense in the form of transferring a bribe to an official. At the same time, Timokhina A.A. on 15.03.2018 appealed to an official of the OEB and IIK of the Ministry of Internal Affairs of Russia in the Moscow district of St. Petersburg to file a crime report.

At the same time, Timokhina A.A. explained that she needed to create difficulties for her husband Timokhin A.V. in carrying out his commercial activities, as well as put pressure on him in connection with lawsuits between them. Explanations on the above-mentioned criminal case were requested from the spouse.”

Having reviewed the circumstances of Ms Timokhina’s bribery-related offending, the VCC moved on to consider her conduct in bringing a claim before an earlier constitution of the VCC in 2020 alleging violence and coercion by Mr Timokhin:

“Also, as evidence of the dissemination by the spouse of information discrediting his honor, dignity and reputation, Timokhin A.V. indicated the statements of Timokhina

A.A. when considering the dispute on the invalidity of the marriage agreement in case N-2-2734/2020 about the commission by the spouse of intimidation, violence and threats against the spouse, which in the framework of the trial in case No. 2-2734/2020 has not been confirmed, which indicates the premeditation of Timokhina A.A.'s actions.”

The VCC then considered how Ms Timokhina’s dismissed 2020 claim should be treated under Russian law. It referred to a resolution of the Russian Supreme Court:

“Resolution of the Plenum of the Supreme Court of the Russian Federation No. 3 dated 24.02.2005 “On judicial practice in cases of violation of the honor and dignity of citizens, as well as the business reputation of citizens and legal entities” clarified that the very fact of a citizen contacting the authorities with a statement in which he provides certain information (for example, to law enforcement agencies with a message about an alleged, in his opinion, or committed or impending crime) cannot serve as a basis for concluding that he abused his right, however, if the court established, that the appeal to these bodies had no grounds and was dictated not by the intention to fulfil one's civic duty or protect the rights and legally protected interests, but solely with the intention to harm another person, then there was an abuse of law (paragraphs 1 and 2 of Article 10 of the Civil Code of the Russian Federation).”

It directed itself, therefore, to principles emanating from the highest Russian court, albeit without suggesting that the Supreme Court’s resolution was binding. Nevertheless, it put together the finding of the VCC at first instance and the statement of legal principle from the highest Russian court. Having done so, the VCC reached its conclusion:

“In such circumstances, the court recognizes Timokhina A.A.'s failure to fulfil the obligations assumed on the basis of paragraph 6.2 of the marriage agreement.”

Having found a breach of clause 6.2, the VCC next considered the remedy sought by Mr Timokhin:

“Timokhin A.V. declared a partial refusal to perform the agreement, namely, he asks to exclude paragraph 5.2 from the agreement, or to change the amount of compensation established by paragraph 5.2 of the marriage agreement, reducing it to 100,000 pounds, as well as to refuse to collect a penalty or reduce the amount of the penalty established by paragraph 5.3 of the agreement due to its obvious disproportionality.”

The court provided its conclusion about the amendment:

“Having assessed the proportionality of Timokhina AA's liability for the violations committed by her, the court finds it reasonable and justified to amend paragraph 5.2 of the marriage agreement, namely, to reduce the amount of compensation established by paragraph of the marriage agreement to 900,000 pounds.”

Therefore, of the 90 per cent reduction in lump sum payment Mr Timokhin sought, the VCC granted a 10 per cent reduction. The court also had regard to clause 5.3. It summarised the clause in this way:

“In paragraph 5.3 of the Marriage Agreement, the parties established that in case of violation by the spouse of the obligation to pay the amount of money specified in paragraph 5.2, the spouse pays the spouse a penalty in the amount of 0.1% of the amount owed for each day of delay (contractual penalty).”

The VCC then considered the calculation of the penalty Mr Timokhin should pay:

“At the same time, the spouse undertook to pay the monetary payment established by clause 5.2 of the agreement according to the details provided by the spouse within 30 days from the date of divorce. Timokhina A.A. provided the details for the transfer of the payment on 09/23/2019, which was submitted to the case file by a letter dated 04.09.2019, which was received by Timokhin A.V. only on 23.09.2019.

Based on the above, for the period from 24.09.2019, a penalty was accrued for the unfulfilled obligation of the spouse to pay 900,000 pounds sterling on the basis of clause

5.3

of the marriage agreement.

At the hearing, the representative asked to collect a penalty from Timokhin A.V. for the period from 27.03.20l8 on 24.01.2023 before the actual fulfilment of obligations, reducing the amount of the penalty to 56,567,662,19 rubles.

In this situation, the court considers that the penalty is subject to collection only from 24.09.2019 and until the day of the decision, which amounts to 768,600 pounds (900,000 pounds x 0.1% x 854 days).

Timokhin A.V. filed a motion to reduce the amount of the penalty in accordance with Article 333 of the Civil Code of the Russian Federation.

In accordance with Part 1 of Article 333 of the Civil Code of the Russian Federation, if the penalty payable is clearly disproportionate to the consequences of the

violation of the obligation, the court has the right to reduce the penalty.”

The court set down further sources of law relevant to the reduction of a penalty (Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 22.12.2011 No. 81; Article 17 (Part 3) of the Constitution of the Russian Federation; Resolution of the Plenum of the Supreme Court of the Russian Federation dated 24.03.2016 No. 7). It noted that the amount of reduction depends on “the circumstances established in the case”. It concluded:

“Assessing the evidence presented by the parties, the court takes into account the defendant's argument that the amount of the claimed penalty is disproportionate to the violated obligation, whereas the penalty is a measure of responsibility for violating the fulfilment of obligations, is educational and punitive in nature for one party and at the same time compensatory (i.e. It is a means of compensating losses caused by violation of obligations) for the other party, and cannot be a way of enriching one of the parties, when determining the amount of the penalty, the court must proceed from observing the balance of interests of both parties.

Taking into account the above circumstances, taking into account the provisions of Article 333 of the Civil Code of the Russian Federation, the court considers it possible to reduce the total amount of the penalty to be collected to 50,000 pounds sterling.”

Therefore, the penalty imposed was significantly less than Ms Timokhina argued for. However, the VCC did impose a penalty on Mr Timokhin despite his submission that the court should “refuse to collect a penalty”. In that, the VCC held for Ms Timokhina.

LRC on clause 5.2

The appeal came before the LRC in October 2023. It reached its conclusions “Having checked the case materials and discussed the arguments of the appeal”. It recognised that in resolving the dispute, the VCC at first instance was “partially satisfying the requirements of both Timokhina A.A. and Timokhina A.V.”. This was undoubtedly accurate. Mr Timokhin did not get everything he wanted from the VCC. As an appellate court, the LRC examined the VCC’s first instance judgment. It found, for example, that the VCC stated that

“during the court proceedings in civil case No. 2-2734/2020 on the invalidity of the marriage agreement, Timokhina A.A. insisted that the marriage agreement was concluded on extremely unfavorable terms for her under the influence of threats from her spouse, which is confirmed by the statement of claim, appeal and cassation submitted to the case materials complaints in case No. 2-2734/2020, as well as court decisions adopted in the case. At the same time, she did not dispute the fact of giving false assurances about fairness, profitability, and the absence of circumstances forcing the spouse to conclude a marriage agreement on extremely unfavorable terms.”

The LRC concluded that the VCC “was justified” in concluding that Ms Timokhina had given false assurances and failed to fulfil the obligations “the obligations assumed by the latter on the basis of paragraph 6.2 of the marriage agreement.” It found that the mutual assurances by the spouses were an “integral part” of the contract. The LRC noted:

“Timokhina A.A., referring to the false assurances given by her at the conclusion of the marriage agreement, appealed to the court with a claim for recognition of the marriage agreement as an invalid transaction and the application of the consequences of its invalidity, which indicates the presence of her guilt in giving false assurances and the absence of grounds for limiting the right of Timokhin A.V. to unilaterally withdraw from the agreement according to the requirements of Article 401 of the Civil Code of the Russian Federation.

The case materials also confirm Timokhina A.A.'s failure to fulfil the obligation set out in paragraph 6.2 to faithfully fulfil her obligations under the agreement and refrain from causing any harm to the other spouse, including not spreading information discrediting the honor, dignity and/or business reputation of the other spouse.”

The LRC turned to the criminal case “which established that Timokhina A.A. admitted her guilt in committing a criminal offense in the form of bribegiving to an official by contacting an official of the OEB and the PC of the Ministry of Internal Affairs of Russia in the Moscow district of St. Petersburg on 15.03.2018 to file an application for a crime.” The LRC noted her motivation for the offending:

“At the hearing, she explained that she needed to create difficulties for her husband Timokhin A.V. in carrying out his commercial activities, as well as put pressure on him in connection with the lawsuits between them. Explanations on the above-mentioned criminal case were requested from the spouse.”

It then turned to Ms Timokhina’s invalidity claim:

“When considering the dispute on the invalidity of the marriage agreement in case No. 2-2734/2020, she also indicated that the spouse Timokhin A.V. had committed intimidation, violence and threats against her, which, was not proved in the framework of the trial in case No. 2-2734/2020, which also indicates the premeditation of Timokhina AA's actions.”

The LRC noted that the VCC reduced the lump sum payable under clause 5.2 to £900,000. However, the LRC reached a different view:

“Agreeing with the conclusions of the court of first instance in general, the judicial board, taking into account the proportionality of Timokhina A.A.'s responsibility for the above violations committed by her and taking into account proven guilt in her actions, considers it possible to reduce the amount recovered by the court of first instance to 500,000 pounds”

The LRC explained the VCC’s basis for arriving at a £50,000 penalty imposed on Mr Timokhin. The appellate court continued:

“The judicial board generally agrees with the conclusions of the court of first instance on the partial satisfaction of the claims of the parties, believes that during the consideration of the case by the court, the norms of substantive law were correctly applied and the circumstances relevant to the case were correctly established.

At the same time, not agreeing with the court's decision regarding the reduction of the change in the amount of money specified in clause 5.2 of the marriage agreement, by virtue of the above-mentioned norms of civil legislation, the judicial board also does not agree with the conclusion of the court of first instance that it is impossible to offset the funds collected from the parties.”

Therefore, it is not the case that the appellate court followed the court of first instance in every particular. It reconsidered the case and reached materially different conclusions in important respects. While the lump sum under clause 5.2 was reduced to 50 per cent of what is stipulated under the contract, the penalty imposed on Mr Timokhin for non-payment, which he sought to have removed, remained in place and was not reduced. In that latter respect, the LRC ruled in favour of Ms Timokhina.

Clause 6.2

The Russian courts found that Ms Timokhina breached clause 6.2 in two distinct ways by (a) distributing discrediting data about Mr Timokhin and (b) initiating a false invalidation claim in July 2020 in bad faith. There was no dispute between the experts that the Russian courts relied on both of those factors in their clause 5.2 conclusions. The 2020 bad faith finding requires elaboration. This was a first instance decision of the VCC dated 15 July 2020. It found that Ms Timokhina’s allegations of violence by Mr Timokhin to be unconfirmed and found that she had acted in bad faith, taking into account Article 10 of the RCC. Article 10 provides:

“1.

The exercise of civil rights solely with the intention of harming another person, actions circumventing the law for an unlawful purpose, as well as other deliberately unfair exercise of civil rights (abuse of law) are not allowed.”

The VCC held in July 2020:

“Taking into account the provisions of Article 10 of the Civil Code of the Russian Federation, the actions of Timokhina A.A., who initially accepted performance under the contract and then filed a claim to challenge it, should be recognized as bad faith. A statement made in any form about the invalidity (voidability, contestability) of the transaction and the application of the consequences of the invalidity of the transaction (a claim filed with the court, the defendant’s objection to the claim, etc.) has no legal significance if the person referring to the invalidity acts in bad faith, in particular, if his behavior after the conclusion of the transaction gave other persons grounds to rely on the validity of the transaction.”

Ms Yablokova agreed in evidence that the impugned Russian courts in 2023 accepted that the VCC in July 2020 made a finding of bad faith against Ms Timokhina. They proceeded on the basis that she acted with the intent to harm Mr Timokhin in her 2020 claim. Ms Yablokova accepted that the courts had found that Ms Timokhina had in the 2020 claim intended to distribute discrediting data. As such, although Ms Yablokova did not personally concur, she conceded that the Russian courts found that, by the 2020 claim, Ms Timokhina had breached her clause 6.2 obligations. However, Ms Yablokova disputed that the non-discrediting obligation survived dissolution, a point I turn to below. In her filed evidence, Ms Timokhina disputes the bad faith finding. There appeared at times in the arguments presented to me to be criticism in argument of the conclusion of the VCC’s July 2020 decision. However, the VCC and LRC in 2023 were entitled under Russian law to take the 2020 finding of bad faith as a given. Unless properly challenged, it remains intact and extant under Russian law. This is because of Article 61.2 of the Civil Procedural Code, which provides:

“The circumstances established by a court ruling that has entered into legal force in a previously considered case are binding on the court. These circumstances are not proved again and are not subject to dispute when considering another case involving the same persons, as well as in the cases provided for by this Code.”

As in this country, in Russia there is recognition of the principle of finality. Ms Yablokova accepted in cross-examination that Ms Timokhina’s allegations of domestic abuse had been found to have been made in bad faith as Mr Timokhin maintained. Both the impugned courts found that the bad faith allegations were evidence of a breach of clause 6.2. It is difficult to understand how the English court at this remove is in a proper position to go behind the factual findings of the VCC in 2020. Complaint is made that the Russian courts dealt with the allegations in a way different from the way they would be determined in this jurisdiction. As said by this court in SAS Institute Inc v World Programming Ltd [2018] EWHC 3452 (Comm) at para 204:

“English Courts never investigate the propriety of the proceedings in the foreign Court, unless they offend against English views of substantial justice. There are obvious sound reasons for this approach. The Court accepts that different courts will proceed in different ways, and it would be both arrogant and wrong to proceed on the basis that if the same result is not achieved in a foreign court something must have gone wrong.”

Under English law, there is a clear right to make a complaint of domestic abuse and violence in family proceedings. However, where false allegations are maliciously made and the repetition of vexatious proceedings may affect the welfare of the child, the court is not powerless. It is open to the court to make a barring order under section 91(14) of the Children Act 1989. The complaints about the approach to family law are addressed in detail elsewhere later in Part 2 of this judgment when dealing with the family law aspect. The point is that in Russia, and in this jurisdiction, the court is entitled not just to rule on the merits of an allegation, but also whether the allegation has been made in bad faith. This is a finding of fact.

It is a misconceived argument in light of Article 61.2 to claim that the impugned courts in 2023 were themselves acting in bad faith because they relied on a finding of bad faith made by an earlier court which had not been overturned. In 2023, the two impugned courts concluded that Ms Timokhina’s discrediting actions were “premeditated”. This was a reasonable conclusion that logically flows from the VCC’s earlier finding and in itself was reasonably open to the 2023 courts to make.

The further question is whether the breaches of Clause 6.2 are sufficiently material (“significant breach”) for Article 450 purposes to support an amendment to the contract. Contract violation is considered sufficiently significant when it “entails such damage to the other party that it is largely deprived of what it was entitled to expect when concluding the contract.”

The content of the test is simple to express. However, the parties are in fundamental dispute about four matters, which are examined in turn in subsection E:

Continuation

The continuation point is of great importance to Ms Timokhina’s case. She submits that the effect of clause 6.2 did not extend beyond the divorce (termination). This is because of the combined effect of clause 6.9 of the contract and Article 43 of the RFC. As a reminder, clause 6.9 states that the contract ceases to have effect on termination “except for the obligations which have been stipulated by the Contract for the period after termination of the marriage.” To reprise for convenience here, Article 43.3 of the RFC provides:

“The validity of the marriage contract is terminated from the moment of termination of the marriage (Article 25 of the present Code), with the exception of those obligations that are provided for in the marriage contract for the period after the termination of the marriage.”

By their decisions, the Russian courts did not query whether the non-discrediting obligation continued. However, the clause 6.9 argument was not raised before the two courts. That failure meets the same criticism by the claimant that it is now too late to advance this novel argument, relying on Cranston J in OJSC at para 8, as noted, that “a defendant must take all available defences in the foreign court and if they are at fault in not doing so, may not impeach the foreign judgment in England”. Ms Timokhina never raised the argument in Russia that clause 6.2 could not be relied on because of the operation of clause 6.9. Ms Timokhina had every opportunity to argue clause 6.9. She certainly invited to the court to consider her other clause 5.2 arguments, but failed to base any argument on clause 6.9. If it were such a vital part of her case, there is little rational explanation for this gross failure. This failure is a factor I take into account against her, but in fairness to Ms Timokhina I judge that it is not fatal to Ms Timokhina’s submission before this court. Whether the non-discrediting obligation continues after termination is ultimately a question of contractual interpretation. Ms Timokhina recognises this and submits that the Russian courts fell into legal error that far exceeds the reasonable and reaches the impeaching standard. The significance of clause 6.9 was acknowledged by Ms Zakordonskaya, accepting it was “quite possible” that it was “pretty important” due its resonance with the content of RFC Article 43. Ms Timokhina submits that there is a clear and unmistakable contrast between clauses 5.2 and 6.2. This is because clause 5.2 expressly anticipates the obligations that continue after the marriage, whereas there is no recognition in clause 6.2 of an ongoing obligation. But even if, which Ms Timokhina does not appear to accept, the initial good faith part of clause 6.2 does subsist beyond divorce, there is no indication that the distributing data prohibition does.

During the instant trial, there was exploration with Ms Yablokova about whether clause 6.2 could continue beyond the termination of the marriage. As previously observed, to the extent that she was being asked about the content of Russian law and whether there were principles in it that permitted or excluded continuation, her answer has validity. To the extent she was interpreting the contract herself, the evidence is of next to no use.

Ms Yablokova was asked in terms whether such obligations as continued after the divorce must be carried out in good faith. She said, “They should be continued in good faith.” It is difficult to see how the distribution of discrediting data after the marriage is consistent with a continuing duty to carry out obligations after the divorce in good faith. Nevertheless, Ms Timokhina complains to this court that clause 6.2 does not continue after the marriage ends.

It is puzzling that if clause 6.9 had the legal effect now claimed by Ms Timokhina, it was not raised before the Russian courts. The claimant makes the valid point that the Russian courts had to rule on the submissions made to it. However, the explanation for Ms Timokhina’s failure to argue clause 6.9 may be that in the context of the PNA as a whole, clause 6.9 adds little to Ms Timokhina’s case. This is because if, as already explained, the good faith obligation includes an obligation not to distribute discrediting data – a matter for contractual interpretation - the non-discrediting obligation is “stipulated” by the contract by falling under the aegis of the good faith obligation in clause 6.2. I emphasise that I have considered the submissions about the correct clause 5.2 construction together with and in light of clause 6.9 and RFC Article 43. I conclude that even when clause 6.9 and RFC Article 43 are added and interpreted, the clause 5.2 conclusions of the impugned courts in 2023 are not errant to the extent that an inference of bias may be drawn. I find nothing to indicate any capriciousness, bias or arbitrariness approaching the necessary impeachment test in the clause 5.2 conclusions or the necessary unreasonableness of decisions.

In any event, Ms Timokhina later took a point on appeal to the Third Cassation Court, arguing that amendments to the PNA cannot be made after termination of the marriage. Here was another opportunity to argue clause 6.9 and she failed to take it. The Third Cassation Court, in its judgment dated 28 February 2024, rejected Ms Timokhina’s submission:

“Contrary to the arguments of the cassation appeal, the courts had grounds for changing the marriage agreement.

…

As established by the courts and follows from the case materials, paragraph 6.2 of the marriage agreement the parties established an obligation to faithfully fulfil their obligations under the agreement and refrain from causing any harm to the other spouse.”

The Third Cassation Court then detailed the false criminal complaint made by Ms Timokhina to “create difficulties” for Mr Timokhin in his business activities and “to put pressure on him” in the proceedings between then. The court continued:

“This circumstance, related to the commission of a crime by Timokhina A.A., with the aim of harming her former spouse, is significant, allows us to believe that if Timokhin A.V. had known about it at the conclusion of the agreement, the terms of the agreement for the payment of 1,000,000 pounds sterling would not have been included in the agreement.

The arguments of the cassation complaint that changes to the marriage agreement cannot be made after the termination of the marriage are based on the applicant's misinterpretation of the norms of substantive law.”

Thus, the higher appellate court directly engaged with the question of amendment and its justification and found that Ms Timokhina’s approach was misconceived under the norms of Russian substantive law. It was plainly entitled to so conclude. This is clear from its reasoning:

“The marriage agreement is terminated from the moment of termination of the marriage (paragraph 3 of Article 43 of the Family Code of the Russian Federation), with the exception of those obligations provided for in the marriage agreement for the period after the termination of the marriage.”

Therefore, the court had directed itself to the RFC Article 43 argument. The court continued:

“As follows from the materials of the case, Timokhin A.V. in the framework of this case filed a request to amend paragraph 5.2 of the marriage agreement, which was reviewed by the court and satisfied.

The arguments of the cassation appeal on the unjustified application by the courts of provisions 333 of the Civil Code of the Russian Federation contradict the content of the appealed court decisions, in which the courts applied the appropriate motives and conclusions on the reduction of the penalty.

The judicial board finds no grounds to disagree with them.

…

Contrary to the arguments of the cassation appeal, the courts duly established and assessed the factual circumstances of the case, referred to the norms of law to be applied, as a result of which they made reasonable conclusions.”

Once more, one sees that rather than mounting an effective impeachment claim, Ms Timokhina’s arguments amount to a legal disagreement with the decisions of the Russian courts. As explained above, there is good reason to conclude that if the clause 6.9 point were taken in Russia at VCC and LRC level, the Russian courts would rule in the claimant’s favour. Further, a finding of continuing duty not to harm cannot be said to be so outrageous, outlandish or perverse to be beyond the reasonable conclusions open to a Russian court of competent jurisdiction.

Meaning of significant breach test

The defendant submits that there is nothing to indicate that the word “damage” in the article means anything other than that. Here there has been no proof of damage in the sense of tangible or identifiable loss accruing to Mr Timokhin. In making this submission, the defendant relies on two decisions of the Russian Supreme Court. First, the decision dated 3 April 2001 (Case No. 18-B01-12):

“The very fact of the existence of such a violation by virtue of Article 450 of the Civil Code of the Russian Federation cannot serve as a basis for termination of the contract. Contrary to this provision of the law, the court based the argument about a material breach of the contract only on the fact of the defendant’s failure to perform the contract and did not refer to any other circumstances evidencing a material breach of the terms of the contract by the defendant. The plaintiff did not refer to them and did not provide relevant evidence in this regard, as required by Article 50 of the Civil Procedure Code of the RSFSR.”

This decision makes clear that a failure to perform a contract was insufficient. What is required is “relevant evidence” of material breach. This is breach that it is legally significant in the way Article 450(2) envisages. It does not contradict the proposition that if there is evidence that a party is largely deprived of what that party expected under the contract that is capable of being a qualifying material breach for amendment purposes.

Next, the order dated 7 June 2011 (No. 5-B11-27). It states:

“It follows from the concept of a material breach of a contract by one of the parties contained in Clause 2 of Article 450 of the Civil Code of the Russian Federation (a breach of the contract by one of the parties is recognized as material, which entails such damage to the other party that it is largely deprived of what it was entitled to expect when entering into the contract), that the party filing a claim with the court for termination of the contract on this ground, must provide evidence confirming this particular nature of the violation.

Meanwhile, the plaintiff did not provide the court with any evidence of causing significant damage within the meaning of Clause 2 of Article 450 of the Civil Code of the Russian Federation, as required by Part 1 of Article 56 of the Civil Procedure Code of the Russian Federation…”

This provides further confirmation that what is required of a party relying on Article 450(2) is “evidence confirming this particular nature of the violation”. However, that requirement is not the same as evidence of monetary or equivalent material loss. Once more, this Russian pronouncement is consistent with the article’s requirements being met by evidence of being largely deprived of what was expected when contracting (and hence significant damage in that way). Ms Zakordonskaya accepted that the breach of the contract had to be “significant”. Ms Yablokova agreed. The question became what is meant by significant. The claimant submits that whether a breach is material is a matter for legitimate difference of judicial opinion. Whether a party is “largely deprived” of what was expected under the contract is a matter of judicial evaluation about which legitimate differences may exist.

I am bound to say that I am not impressed with Ms Zakordonskaya’s assertion made for the first time in oral evidence that the damage to the claimant was “psychological” or “moral”. She had not set out this claim previously. Indeed, the Russian courts had not mentioned moral damage and she accepted in cross-examination that this amounted to “my take on it”. She later resiled and said that her use of the terms psychological and moral damage were merely examples of the kind of material damage that may trigger amendment. It would have been better if she had focused on the clear words of Article 450(2) and of what being “largely deprived” means. Later in her cross-examination, after methodical and patient questioning by Mr Samek, she recognised the correct “largely deprived” test.

The claimant points to the terms of clause 6.2: not to distribute data “discrediting honor, dignity and/or business reputation of the other Spouse.” If one party nevertheless proceeds to distribute such data, the other party (spouse) has been “largely deprived” in Article 450 terms of what it “was entitled to expect when concluding the contract”. It was about this question that there was a trenchant exchange between the defendant’s legal expert and counsel, previously mentioned, but repeated here in its relevant context. The proposition advanced on behalf of Mr Timokhin was that if data was distributed about him that contained false discreditable information, that would largely deprive him of what he was entitled to expect under clause 6.2. Ms Yablokova initially did not answer. She said she was “trying to figure out” what counsel was trying to do, but was directed by the court to answer the question and not divine counsel’s intention. She suggested that contract amendment was unavailable where an action in defamation lay. If this was indeed the content of Russian law, she provided no legal basis to support the contention and, in any event, had never previously mentioned the notion. No source of Russian law was laid before the court as authority for the proposition that where there was a breach of contract justifying contract amendment and also the availability of a claim in defamation, the defamation action must be pursued at the expense of amendment. There is nothing in this point. The evidence is without value.

Next, she said that the “damage” under Article 450(2) “should be shown in figures”, such as verified losses. The immediate objection to such construction is that the words, given their natural and ordinary meaning, do not specify proof of loss. The test is clear: to be largely deprived of expectation. The breach is of clause 6.2. Its terms emphasise (“in particular”) that the types of harm prohibited include the distribution of discrediting data. One returns to the proper approach this court must take. It is not to act as a court of further appeal from the Russian court or provide the definitive interpretation of the contract. It is to examine whether the judgments of the Russian courts should be enforced or whether the objections (defences) mandate the opposite. It seems to me that it is a perfectly rational construction of Article 450(2) that the distribution of discrediting data itself largely deprives the other party of what was expected: the expectation Mr Timokhin bargained for was non-distribution. Whether that distribution of discrediting data does go on to cause identifiable monetary damage or “loss of profit” (as Ms Yablokova also termed it) is a separate issue and not a precondition for finding the necessary material breach. Further, Ms Yablokova cited the following guidance from the Case Law Review of the Department of State Control on government procurement of the Federal Antimonopoly Service of Russia, published in March 2019 and relevant to the principles of implementation of para 2 of Art. 450 of the RCC:

“When assessing the materiality of the violation, it is necessary to assess the entire range of circumstances, trying to measure such a radical sanction as termination of the contract with the consequences and nature of the violation and to find the most fair solution. In particular, the amount of losses is taken into account; objective loss of interest in the actual performance of the contract; unfair and intentional nature of the breach of contract”

The weight placed by later Russian courts on such earlier decisions, according to Ms Yablokova, is limited as the Russian courts “do not pay much attention” to such earlier decisions, reverting to the examination and application of the rules. This may be so in a civil law system. Yet she has quoted the dictum in her expert report. It makes evident sense that the entire range of circumstances is considered when examining whether a contract should be amended and this was the approach of the impugned courts.

The instant facts

In her initial report, Ms Yablokova stated that the Russian courts gave no explanation for how there had been material breach. During oral testimony, she revised that opinion. She agreed that the Russian courts relied on two factors (1) Ms Timokhina’s criminal complaint against the claimant; (2) her July 2020 invalidation claim and the allegations she made in it.

The Russian courts found that Ms Timokhina made a complaint against Mr Timokhin of serious criminal misconduct. Her intention when doing so was to harm his commercial activities and apply pressure on him in legal disputes between them. In the July 2020 invalidation claim, Ms Timokhina made further serious allegations against Mr Timokhin. In cross-examination, Ms Yablokova at first sought to defend her earlier position that the Russian courts made no findings about material breach and at this point said that in Russia domestic abuse and theft was not “dishonourable conduct” between a husband and wife. This was a surprising statement. To the extent it was maintained by Ms Yablokova, I reject it as obviously implausible. She provided no authority or precedential support whatsoever for her suggestion. It was not relied on in closing by the defendant, with good sense.

It will repay setting out the conduct as found by the Russian criminal court. In a judgment dated 5 September 2018, the Moskovskiy District Court of Saint Petersburg recorded that Ms Timokhina “committed bribery on an official personally on a large scale”. She was:

“acting intentionally, for the purpose of giving a bribe to an official on a large scale - to the senior investigator of the Department of economic security and counteraction to corruption of the Directorate of the Ministry of Internal Affairs of Russia in Moskovskiy district of St. Petersburg …

… knowing public danger and illegal nature of her actions, whereof she, Timokhina A. A., was warned by the above police officer, personally handed to Budnevich D. M., i.e. an official, a bribe in the form of money in the amount of 10,000 USD that in accordance with the exchange rate of the Central Bank of the Russian Federation on 27.04.2018 was equivalent to 626,027 rubies, i.e. in a large size, who took part in the criminal intelligence and surveillance operation “sting operation”, put the above amount on the desk of Budnevich D. M., located in the specified office …”

The court then continued that Ms Timokhina “admitted her guilt” in the court hearing. Her guilt in the “commission of the bribe” was confirmed by the testimony of the named official. The court recorded her motivation:

“In the course of personal conversation Timokhina A. A. also explained that she needs to create difficulties for her husband in the implementation of his commercial activities as well as to put pressure on him in connection with the trial between them, taking place in the UK.”

The court reviewed the evidence before it about her culpability:

“In assessing the evidence, the court proceeds from the fact that none of the evidence given - nor the testimony of witnesses Budnevich D.M.1 Timokhin A.V., Khvorov E.N.. Gasanov R.N., Sokolov A.L., Kudryavtseva B.A., Mukuchyan A.V., nor any other evidence given above and laid in the basis of the verdict, do not have a pre-determined force in themselves, but in their totally, confirming and supplementing each other, testify to the guilt of the defendant Timokhina A.A. in the commission of the crime that she is charged with.”

The criminal court concluded:

“Under such circumstances, the defendant Timokhina A.A. the court considers established and proved, and qualifies its actions under item “b” of m.4 st.291 of the Criminal Code of the Russian Federation - as giving bribes to an official personally in large scale.”

The court found that she had committed an “intentional crime, which is due to the law to the category of particularly serious representing an increased social danger”. The sentence was one of “deprivation of liberty” for four years, with the sentence being served in a “general penal colony”.

It is important to note that the charge was reduced on appeal to attempted bribery and the sentence to one of 18 months’ custody, resulting in Ms Timokhina’s release, subject to later return to custody. Nevertheless, one may gauge the seriousness of the way in which her offending was viewed by the Russian courts from the account in the first instance judgment of her offending, always subject to the appeal point. Ultimately, she was found to have attempted to bribe a senior state official with a bribe of $10,000 (626,000 roubles) and her intention was to harm Mr Timokhin.

Ms Yablokova accepted that Ms Timokhina had admitted, as the Russian courts also found, that her motivation in making the criminal complaint was to create difficulties for her husband by distributing discrediting data. This was an unsurprising concession. Both the VCC and the LRC found that Ms Timokhina “explained” her motivation for the criminal complaint being to harm Mr Timokhin through the discrediting data. In these circumstances, the question is whether it was reasonable for a Russian court to conclude that Ms Timokhina’s distributing of discrediting data was a material breach of clause 6.2, putting all the breaches together. It plainly was a decision open to the Russian court. Some Russian courts may agree, others not; but such conclusion lies well within the ambit of discretion and reasonable decision-making.

The words of Article 450(2) of the Russian code are clear. It applies in cases of termination but also amendment. This was an amendment case, thus this article is relevant. None of the Russian courts made findings about monetary or similar loss. But I cannot think that is the end of the matter. The question is whether a party is largely deprived of contracting expectation when the other party distributes discrediting data. Given that the PNA explicitly prohibits such conduct, the distribution of such data is plainly capable of amounting to being largely deprived of the expectation. That is evidently what the Russian courts concluded when the judgments of each are read as a whole and in context. There are two rival interpretations about whether there is a requirement under Russian law to justify contract amendment for specific monetary or other tangible damage beyond mere data distribution. Each interpretation falls within the generous range of reasonable judicial constructions of these Russian provisions. But the construing of the “largely deprived” requirement as not necessitating proof of monetary or other material loss is unquestionably among them. It is not for this court to supply the definitive interpretation of Russian law.

On the facts, when Ms Yablokova was directed back to answering the question, she accepted that the distribution of false data about the claimant would largely deprive the claimant of what he expected under clause 6.2. Once more, I am little concerned with her interpretation of the contract or her opinion on the facts. But she agreed that if there was not a requirement under Russian law to prove specific monetary or other loss, Mr Timokhin would have been largely deprived of what he expected and contracted for under clause 6.2 when Ms Timokhina distributed discrediting data about him. On such basis, this would be sufficient to amend the contract irrespective of the lack of proof of monetary or other proven tangible loss. In such circumstances, the Russian court would be entitled to amend the PNA. Therefore, I concur with the claimant’s submission that Ms Timokhina has not come close to the necessary threshold to impeach the clause 5.2 amendment decisions in Russia.

On this point, Ms Yablokova would not commit herself to the proposition that in the act of amending the PNA the Russian court demonstrated bias or bad faith. She said that the court was wrong in law. But, as demonstrated, given that there are a range of reasonable interpretation of the provisions, that cannot be sufficient to impeach the 2023 decisions under this head. Being wrong in law is insufficient under Dicey Rule 51.

Failure to argue

It cannot be contested by Ms Timokhina but that she failed to take the clause 6.9 argument in the Russian courts. The defendant submits that her failure should not be held against her. As indicated, I judge that of itself such failure does not absolutely bar her from advancing the argument before this court. Indeed, as is obvious, I have fully examined the substance of the submission. In doing so, I rely on what Slade LJ said in Adams v Cape at 570D about procedural defects such as a failure to take a point in the appropriate proceedings:

“…the relevance of the existence of the remedy and the weight to be attached to it must depend upon factors which include the nature of the procedural defect itself, the point in the proceedings at which it occurred and the knowledge and means of knowledge of the defendants of the defect and the reasonableness in the circumstances of requiring or expecting that they made use of the remedy in all the particular circumstances.”

For my part, the rival arguments on the contested issues before me are sufficiently clear not to have to reduce any weight of a submission because it was not taken in Russia. The real problem is that there is no decision from the Russian courts on the point.

Having not ignored Ms Timokhina’s argument because of her manifest procedural failure, I cannot accept the defendant’s reliance on a further passage from Adams v Cape where Slade LJ (569B) commented on procedural unfairness arising from the “absence of notice of the proceedings or failure to afford the defendant an opportunity of substantially presenting his case.” The defendant submits that due to the defects in the reasoning of the Russian courts, Ms Timokhina has “effectively been treated as someone who was not allowed substantially to present her case.” This is misconceived. Ms Timokhina had every opportunity over years to present her case as she wished to the fullest range of Russian courts and did so repeatedly.

Amount of reduction

The lump sum payable to Ms Timokhina under the contract was £1 million. The question is whether its reduction by half was so excessive (or manifestly excessive, as Ms Timokhina submits) to entitle the English court to refuse to recognise or enforce it.

Ms Yablokova agreed that identified financial loss, while relevant, was not the exclusive basis of assessment. She conceded that the intentions of the party in breach were relevant in the overall evaluation. This must be right and was the reasonable approach taken by the Russian courts. Therefore, Ms Timokhina’s bad faith (“premeditation”) in the invalidation claim in 2020 is a relevant factor in determining the extent of the amendment. The claimant’s application for amendment also invoked clause 6.2 of the PNA as recognised by the Russian courts and Ms Yablokova agreed that the Russian courts relied on the two bases: 2020 claim and discrediting data.

At points the defendant appeared to submit that the Russian courts were improperly punishing or repunishing Ms Timokhina for the fact of her criminal conviction. That submission does not withstand Ms Yablokova’s concession that the defendant’s actions were motivated by her intention to harm Mr Timokhin and a close reading of the impugned judgments. Ms Timokhina complains about the statement in the LRC judgment:

“taking into account the proportionality of Timokhina A.A.'s responsibility for the above violations committed by her and taking into account proven guilt in her actions.”

This is said to indicate a reliance on the fact of the conviction rather than the conduct, an impermissibly punitive approach. However, a fair reading to the judgment in context makes clear what the LRC meant. The word “violations” refers to the identified breaches of clause 6.2. The term “proven guilt” is a reference to the defendant’s accepted (thus “proven”) false assurances. On “guilt”, Ms Yablokova agreed that this could be the correct interpretation of the court’s judgment. Paradoxically, Ms Zakordonskaya under cross-examination conceded at one point that it may have been a reference to the criminal conviction. These are interpretations of the judgments by the experts. It is the function of this court to determine what the Russian courts decided, assisted by explanations about Russian law from the experts. Further, in respect of the criminal conduct, it is clear that the courts referenced Ms Timokhina’s admissions and the reasons for her conduct. If the courts were simply relying on the fact of her conviction rather than the underlying conduct, there would be no need to make such references.

In considering questions of proportionality, the circumstances of Ms Timokhina’s criminal conviction have been set out above. The seriousness of the charge and the nature of the punishment imposed indicate the gravity of the breach of her clause 6.2 duty. Whether Ms Timokhina’s clause 6.2 breaches were sufficient to justify the reduction in lump sum payment was then a matter for the discretion of the Russian courts. There is nothing to indicate that the VCC initially and then the LRC after it acted in a way that approaches the impeachment standard. The question is not whether the English court would have made a different decision, but whether the Russian decisions are so errant and arbitrary that they ought not to be recognised and enforced for all any of the impeaching reasons provided at the outset of this judgment. I judge that they are not. It is perfectly reasonable for the Russian courts to conclude that the distribution of harmful data justifies a substantial reduction in the lump sum payable by Mr Timokhin on marriage termination. It clearly is capable of amounting to, as the Russian Supreme Court put it, “other consequences that significantly affect the interests of the party”. While this Supreme Court ruling does not bind lower Russian courts, it is indicative of an approach under Russian law. Given the fundamental nature of her breaches, the Russian court clearly had a discretion about the degree of necessary reduction. The VCC made a reduction of 10 per cent. The LRC made one of 50 per cent to meet the justice of the case as it separately judged it. These were all matters for the courts’ discretion. I do not conclude that these were arbitrary or deliberately wrong conclusions given the flagrancy of Ms Timokhina’s breach of her clause 6.2 non-distribution obligation. Hers was unquestionably a serious breach intended by her to cause serious harm to Mr Timokhin in business affairs and to exert improper pressure on him in the ongoing litigation between them – on any view, a grave breach.

Bad faith and bias

There are two prime bases for bad faith. First, a hostile intent on the part of the court towards a party. This may be a species of bias or close to it. Second, the degree of a legal error leading to an inference of bad faith or bias (explained by Sir Michael Burton in Maximov, para 15).

First basis. The defendant submitted that “If a court decides beforehand on the outcome it wishes to achieve (here, most plausibly, as M Yablokova suggests, to punish [Ms Timokhina]), and to that end twists and thus subverts the law, then under no circumstance can it be said that a party has had a fair trial.” However, there is no evidence of predetermined outcome or premeditated hostility to Ms Timokhina or the “twisting” of Russian law. Ms Yablokova agreed that the Third Cassation Court did not intend to punish the defendant. When she was asked whether the LRC’s October 2023 decision was given in bad faith, she at first said no. When she was asked whether the Russian courts had a purpose to punish Ms Timokhina, Ms Yablokova said that she did not know. Therefore, no credible or reliable evidence has been provided by the defendant that any Russian court acted with deliberate hostility towards Ms Timokhina. In closing submissions, this hostile intent challenge was not materially developed. This is understandable as it largely withered in the face of the evidence.

Second basis. The question turns on whether the decisions were so beyond the range of decisions that a Russian court could reach that there is an inference of bad faith. This requires an analysis of the decisions.

On clause 5.2, it is noteworthy that neither of the impugned courts granted the claimant the full extent of the relief he sought. They did not supinely accede to his application. Instead, each court reached a decision of its own, materially different to the extent of relief he sought, and different from each other. They therefore held for Ms Timokhina in certain (but again differing) respects. Once more, it is not a credible suggestion that these two Russian courts reached decisions that no Russian court “acting in good faith” could have arrived at. The analysis of the courts was to read Articles 431.2 and 450.1(2) together, a reasonable approach and certainly not an unreasonable or arbitrary error. The Third Cassation Court held:

“Contrary to the arguments of the cassation appeal, the rules of interpretation of the agreement established by Article 431 of the Civil Code of the Russian Federation have been observed by the courts, and cannot be re-litigated now by way of further appeal.”

Similar considerations apply to contested judgments in respect of clause 5.1. This court has no valid basis to conclude that this approach of the Russian courts was erroneous to the extent that an inference of bad faith may be drawn. These were all reasonable conclusions and based on recognised Russian legal norms.

Penalty

There are four possible bases for an impermissible (non-enforceable) penalty (1) state-imposed penal sanction; (2) civil sanction intended to punish; (3) civil sanction with punitive effect; (4) an award that is penal in the sense of being non-compensatory.

I accept the defendant’s submission that it is not the central role of civil law to punish the individual. The rule is not invariable as exemplary damages can be awarded in certain tortious claims. However, it is contrary to English law to enforce the penalty or penal sanction of a foreign state. This country is not in the business of being a tax collector or coercive arm of a foreign state in its sovereign capacity. The idea is summarised succinctly by Dicey (para 14-026): “A penalty in this sense normally means a sum payable to the State, and not to a private claimant”. In USA v Inkley [1989] 1 QB 255, the Court of Appeal refused the United States’ enforcement of a bail bond ($48,000) following a British subject’s arrest in Florida for fraud. It involved his attempting to sell non-existent oil wells to American citizens. He was granted permission to return to the United Kingdom briefly for a funeral, but failed to return. Purchas LJ said that despite its “civil clothing”, the reality was that the United States sought to enforce part of its criminal process against the respondent to ensure his attendance before its criminal courts.

The state penal objection cannot apply in the instant case. The impugned judgments were civil judgments and the orders not criminal or fiscal penalties. The impugned courts referred to the criminal proceedings against Ms Timokhina, but did not seek to repunish her.

Ms Yablokova was asked whether the Third Cassation Court “intended to punish” Ms Timokhina. She replied, “No. The court itself did not intend to punish the wife. But the court supported the position of husband which looks like to punish his wife.” While I acknowledge the claimant’s submission that Ms Yablokova is not in a reliable position to determine the claimant’s allegedly “punitive” state of mind, the greater point is that the “supporting” alleged against the Russian courts amounts to no more than emphasising that they ruled in Mr Timokhin’s favour. This does not come close to the Russian courts intending to punish Ms Timokhina. The real question is not whether the claimant had an intention to punish the defendant but whether the Russian court did. There is no evidence that the Russian courts intended to punish Ms Timokhina. The Russian courts did not supinely accede to Mr Timokhin’s claims. It did not uncritically grant him the level of relief he sought as the court in the United States did in Adams v Cape. Mr Timokhin sought far greater relief than he obtained. The much-criticised LRC decision required him to pay Ms Timokhina five times the amount of lump sum he argued he should pay Ms Timokhina; the VCC decision nine times what he sought. This is very far from “twisting the law”, as Ms Timokhina claimed when opening the trial here, nor is it evidence of a deliberate intent to “do her down”. The LRC reduced the sum payable by half due to the gravity of her deliberate breaches. It did not reduce it to a negligible or trivial amount.

I take these together, in the way that the defendant did in closing submissions. I deal with the non-compensatory point first.

The key point is that the Russian courts were not making a damages award. Thus, the non-compensatory submission by the defendant is misplaced. Mr Timokhin’s application was for contract amendment. It is clear under Article 431.2 that where relevant false assurances have been made in addition to the right to “demand compensation”, the applying party has “the right to withdraw from the contract”. It is not disputed that this principle includes a party’s right to partially withdraw through contract amendment. The amendment was not designed to “compensate” Mr Timokhin as a direct reflection of any identified loss. Instead, the Russian courts grappled with a different question: the justifiable degree of contract amendment. In adopting a proportionality approach, the Russian courts examined matters holistically, weighing factors such as Ms Timokhina’s actions and intention (premeditation) and the degree of her responsibility for the breaches of the contract. This approach is plainly legitimate and not arbitrary. Ms Yablokova agreed that the extent of amendment was not necessarily dictated by proof of loss, as financial loss was one out of many factors in a multifactorial evaluation. She agreed that subjective questions about the party in breach such as intent to harm and bad faith were also relevant.

Ms Timokhina complained that Mr Timokhin had coerced her into entering into the PNA. As the VCC recorded it in its January 2023 judgment, the coercive conduct alleged included “the theft of marriage certificates, birth certificates of children, certificates of citizenship of children.” This question of the “stolen” documentation was examined by the family courts in this jurisdiction. While Ms Timokhina was not present in person, she was represented by (what was then) Queen’s Counsel and a leading firm of solicitors. In a judgment dated 9 July 2018, District Judge Gibson held in London’s Central Family Court:

“In terms of the mother’s evidence the court has not been able to hear the mother’s oral evidence. There is clear evidence, however, of the mother endeavoring to mislead the court. The mother knew the passports were in the safe at Harrods but did not come out and say so, merely saying that only she could access them. That was a lack of candour, even more concerning is the situation in relation to the St Kitts Nevis registration documents and [the son’s] original birth certificates. All these documents were in the Harrod’s safe box. Yet the mother made an application on 28 September 2017 for delivery up of original birth certificates and St Kitts and Nevis citizenship documents. In her statement she explains in detail how the father came to hold the documents and suggests they may be used to obtain travel documents and remove the children from her care. This was not spur of the moment lying but calculated deceit.”

On 14 January 2022, MacDonald J held in the Family Division (para 13):

“On 14 May 2018 the High Court in this jurisdiction made an order requiring the mother to produce the children’s passports. The mother failed to produce the passports, the mother contending that the father was in possession of, and withholding the children’s passports and also their St Kitts registration documents and original birth certificates. On 5 June 2018 Hayden J made an order requiring the mother’s safety deposit box at Harrods to be opened. The children’s passports, St Kitts registration documents, and [the son’s] original birth certificate were discovered in the mother’s safety deposit box. Within the context of the present proceedings, the father relies on these facts as evidence that the mother has sought, and continues to seek, to mislead and manipulate this court.”

It should be remembered that Ms Timokhina was arrested in Russia for her bribery offence in April 2018. She was in custody until August 2019. She alleged in the Russian court that Mr Timokhin had stolen documents from her. Yet it transpired that she had vital documents in her safety deposit box at Harrods in London.

As to punitive effect, the defendant submits that this is the case here, even while acknowledging that Ms Yablokova gave evidence that she did not believe the Russian judges were intending to punish Ms Timokhina (“irrespective” of Ms Yablokova’s evidence, as the closing submissions termed it). The extent of the LRC’s reduction of lump sum is put this way in the defendant’s closing submissions, “If that is not punishment by a court to the benefit of a party (H), it is hard to see what is.” The defendant severely criticised the “eye-watering” increase in reduction of the lump sum by the LRC from the VCC’s £100,000 reduction to £500,000. It is said that the LRC’s approach was to punish as it used the words “proven guilt” in the judgment and did not use the term about any other aspect of the dispute. The defendant also relies on the evidence on oath of Ms Zakordonskaya that the reduction was “a fine”. A proper reading of her evidence as a whole indicates that she was not suggesting the reduction was a further criminal penalty or sanction. Her evidence was that this was the level of amendment of the PNA following Ms Timokhina’s breach of clause 6.2. Her evidence must be understood in that context.

The defendant submits that in the absence of evidence of loss to Mr Timokhin, the reduction “can only have been non-compensatory”. In my judgment, the defendant misunderstands the point of the amendment. The level of amendment of clause 5.2 must take into account the nature and extent of the breach of the non-discrediting obligation and the false assurances. Both the VCC and LRC had these factors in mind. The Third Cassation Court made the obvious point that if Mr Timokhin had known when concluding the PNA that Ms Timokhina would set about distributing discrediting data with malice to harm him, he would not have agreed to the £1 million lump sum under clause 5.2. The Russian courts were faced with the question of the appropriate amendment to the lump sum given the actions of Ms Timokhina. The VCC made a modest reduction of 10 per cent. This in itself cuts across Ms Timokhina’s wider claim of bias or hostile intent given its very limited scope. The LRC in its discretion found that the violation of clause 6.2 was significantly more serious. This was a finding open to it and evinces an independent consideration.

In oral submissions, the defendant submitted that there is “no critical judicial assessment why the £1 million is reduced to £500,000”. Generally, in respect of the clause 5.2 interpretation by the impugned courts the defendant invokes Article 198 of the Russian CPC. It provides, inter alia at Article 194.4:

“4.

The motivational part of the court's decision must specify:

1)

the factual and other circumstances of the case established by the court;

2)

the court's conclusions arising from the circumstances of the case established by it, the evidence on which the court's conclusions about the circumstances of the case and the arguments in favor of the decision are based, the reasons why the court rejected certain evidence, accepted or rejected the

arguments of the persons involved in the case in support of their claims and objections;

3)

the laws and other normative legal acts that guided the court in making the decision, and the reasons why the court did not apply the laws and other normative legal acts referred to by the persons involved in the case.”

To the extent that the defendant makes a reasons challenge supplementary to the objection to the quantum of the reduction, it was open to Ms Timokhina to challenge the impugned lower court decisions in the Third Cassation Court appeal based on Article 67(4) of the Russian Civil Procedural Code and the need for reasons. She did not do that. She does so for the first time before the English court. She was plainly aware of “reasons” as a ground of challenge. At the Third Cassation Court, she complained about the inadequacy of reasons in respect of the clause 5.1 unjust enrichment decision. The complaint was rejected by the Third Cassation Court. It held that “the relevant conclusions are contained in the contested court decisions and do not need additional motivation.”

I cannot accept the broad criticism of the impugned decisions that they suffered from a lack of “evaluation of the relevance, admissibility, and reliability of each piece of evidence individually”. That is not the obligation under Article 198 of the Russian CPC. It certainly requires the Russian court to “specify” in the judgment a number of matters including its conclusions “arising from the circumstances of the case established by it, the evidence on which the court's conclusions about the circumstances of the case and the arguments in favor of the decision are based.” That is very different from an exhaustive exegesis of each piece of evidence “individually”.

Ms Zakordonskaya stated that there is no stipulated or recognised scale of contract amendment. Ms Yablokova did not dissent from this proposition. It is unsurprising. The extent of justified amendment is clearly a highly fact-specific matter depending on the Russian court’s evaluation of the facts and exercise of discretion. The impugned courts adopted this approach.

Two Russian courts could legitimately reach differing assessments of the extent of contract amendment on these facts. Indeed, two different Russian courts did. Russian courts are capable of reaching different decisions in the exercise of their discretion while both remaining reasonable. Ms Yablokova agreed with this proposition, or appeared to in conceding that this could be the case. It is clear to me that this is what has happened here. The contested decisions at the VCC and LRC are comfortably within the range of reasonable decisions (the “margin of appreciation” as Flaux J termed it in Erste Group Bank). There is nothing to indicate either judgment is so deviant or legally defective in its treatment of the clause 5.2 amendment that it should not be recognised or enforced.

Conclusion: clause 5.2

Neither impugned Russian court granted the claimant the extent of amendment he sought. This was not a case like Adams v Cape, where the court uncritically accepted the applicant’s claim without exercising any judicial scrutiny. It cannot be seriously doubted but that each Russian court considered the amendment application, rejected the extent of the relief Mr Timokhin sought, and made its own independent assessment of the degree of amendment that was within the bounds of proportionality.

The defendant’s case on unreliable assurances has been problematic. In her opening written submissions, Ms Timokhina said nothing about unreliable assurances. This is puzzling. Unreliable assurances were a clear basis of the Russian courts amending the contract. Ms Yablokova initially said that the VCC did not uphold any application by the claimant to partially withdraw from the contract. She put it this way in cross-examination, “if we read attentively the Vsevolozhsky City judgment and the first descriptive part of this judgment, there was no claim to partially withdraw from the PNA by the husband.” In fact, the VCC unarguably did. When confronted by this fact, Ms Yablokova was silent for a very long time in the witness box. The claimant says it was two minutes. Although the court did not time the silence, this was the correct order of magnitude. The silence is significant. Partial withdrawal due to unreliable assurances was one of the two bases for the contractual amendment authorised by the VCC. That Ms Timokhina’s expert failed to appreciate this affects her reliability.

The mechanism for the amendment is clearly available to a Russian Court under its Code and Article 450(2) and Article 431.2 in particular. The extent of the amendment granted by each of the impugned courts is well within the margin of appreciation of its decision-making. This was the conclusion at both further appellate levels, in the Third Cassation Court and the Russian Supreme Court in refusing leave. All these decisions were within the range of those reasonably open to a Russian court. The Third Cassation Court confirmed the impugned decisions. The Russian Supreme Court refused Ms Timokhina permission in her attempt at “annulling the contested court judgments”. The Supreme Court held in assessing Ms Timokhina’s challenge to the Third Cassation Court decision in upholding the decisions of the lower courts:

“The arguments put forward in the cassation appeal cannot be recognised as grounds for annulling the court judgments in this case, since they are based on an incorrect interpretation of both substantive and procedural law.”

The contested judgments of the VCC and LRC are implicitly endorsed by the highest Russian court in this way.

For reasons provided under the clause 5.1 discussion, I find no failure by the LRC to properly re-examine the VCC’s decision and no breach of Article 327.1 of the Civil Procedure Code. The decisions made by the VCC and LRC cannot be characterised in Maximov terms as “deliberately wrong” or so wrong to be evidence of bias or bad faith. The decisions are not arbitrary. They are not punitive. They do not involve a perverse refusal to apply the law, nor are they contrary to natural justice. They do not offend against English views of substantial justice. Enforcement of the judgments to the extent they are based on the clause 5.2 interpretation is not incompatible with Ms Timokhina’s Convention rights and does not amount to a denial of justice. Ms Timokhina’s core submission that the judgments are so defective that they are “not legal” is misconceived. As with the clause 5.1 decisions of the impugned courts, a clear legal basis exists under Russian law for the contested judgments on clause 5.2. Once more, Ms Timokhina continues to refuse to accept it.

The clause 5.2 defences for impeaching the impugned judgments fail.

The defences to enforcement based on clause 5.1 fail. The defences to enforcement based clause 5.2 fail. Therefore, the Part 1 defences to enforcement fail.

Introduction and issues

I consider the following broad themes on the family law aspect of the case under the public policy defence. I examine abuse of process in the next section (Section XII):

It will focus the following analysis to set down how the Radmacher/public policy argument has been pleaded. This is taken from Ms Timokhina’s amended “points of public policy defence” document dated 24 September 2025, filed approximately two weeks before the Part 8 trial:

“2.1.

Recognition and enforcement of the Russian Decisions (as to the meaning, effect and operation of the post-nuptial agreement (“PNA”) between the parties dated 6.6.17 including the net award of substantial sums to the Claimant) would be contrary to and/or subvert and/or interfere with mandatory English law principles and/or public policy as to the treatment and legal effect of PNAs (as stated by the UK Supreme Court in Radmacher v Granatino [2011] 1 AC 534; [2010] UKSC 422). The effect of such principles and/or public policy is that in English matrimonial proceedings, the Court is the ultimate arbiter of whether and to what extent the terms of a PNA should be upheld, applying the principle that “the court should give effect to a [PNA] that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.” (para. 75 in Radmacher v Granatino) Those principles and public policy apply not only in English ancillary relief proceedings concerning financial claims between ex spouses following divorce pursuant to the Matrimonial Causes Act 1973, but also in other family law proceedings including under Part III of the Matrimonial & Family Proceedings Act 1984, in which any question is raised as to the legal effect and enforceability of a PNA.

2.2.

The Russian Decisions were pronounced without consideration of whether the PNA had been “freely entered into by each party with a full appreciation of its implications” and without consideration of whether it would be “fair to hold the parties to their agreement” in the PNA. In any event, the question of whether the PNA had been so freely entered into, and whether it would be fair to hold the parties to it, is one which is exclusively for the English Family Courts.

2.3.

Therefore, the English Court should not give direct legal effect and operation to the Russian Decisions.”

Some preliminary remarks.

First, there is significant overlap between the issues as drafted. Issue 1A on Radmacher is essentially replicated by 1B since the question posed in 1B is a reformulation of the seminal proposition in Radmacher.

Second, very little argument has been made about 1C.

Third, given the degree of overlap, I propose to consider the essential questions that arise thematically before returning to answer the precise questions posed by the amended defence in the Disposal section of the judgment (Section XV).

UK Family proceedings

Ms Timokhina issued an English petition for divorce on 23 May 2017. When doing so, she applied for a wide range of financial orders:

On 16 August 2019, Ms Timokhina consented to the dismissal of her petition for divorce and financial remedy claims. The order was made by HHJ Hess in these terms (para 1), “The petition and application for financial remedy thereto be dismissed.” The order recited that the Russian courts on Mr Timokhin’s petition “pronounced a decree of divorce between the Petitioner and the Respondent on 26 February 2018.”

At the time she consented to the dismissal of her financial remedy application, Ms Timokhina was represented by a firm of specialist financial remedy solicitors Hughes Fowler Carruthers. They wrote to Mr Timokhin’s solicitors on 26 June 2019 stating:

“I confirm that we agree to a dismissal of my client's petition. That dismissal will be by consent and the correct order is no order as to costs. I enclose an amended order in tracked changes and also a clean version which I have signed. I have also signed the joint letter to court. Please countersign and lodge both documents with the court, copying in this firm.”

It was open to the defendant to apply for financial relief in this jurisdiction. However, she chose to pursue financial relief in Russia. To that end, she sought to enforce the terms of the PNA through the Russian courts and then to have the PNA set aside. She never made a Part III application for financial relief in the English courts under Part III of the Matrimonial and Family Proceedings Act 1984 (“the 1984 Act” or the “MFPA 1984”). A Part III application is a mechanism for obtaining financial relief after a foreign divorce. Yet having eschewed the opportunity to make a Part III application in the English court, Ms Timokhina did not direct her focus exclusively on the Russian courts. She continued to litigate in the English family courts. She had the status of both applicant and respondent in proceedings engaging child welfare issues and she instructed leading and junior counsel.

By 24 June 2022, the defendant was represented by her present solicitors. Ms Broadley of Goodman Ray had only just come on the record. Nevertheless, on behalf of Ms Timokhina, Ms Broadley applied to strike out or have stayed the claimant’s application under Schedule 1 of the Children Act 1989 (Financial Provision for Children). The application notice states:

“The mother seeks an urgent hearing to consider her application for the father's application for financial orders pursuant to Schedule 1 be struck out and/or summarily dismissed and/or stayed pending the outcome of the on-going financial proceedings between the parties in Russia. A draft order is enclosed containing proposed case management directions to determine the mother's application.”

In an “Annex” to Ms Timokhina’s strike out/stay application, Ms Broadley writes on behalf of her client:

“Potentially the Court in Russia could make various orders relating to the division of the matrimonial assets. It is the mother's position that this court should not entertain the father's application. First, it has no jurisdiction to make the order sought in relation to the mother's property under schedule 1 of the Children Act. Secondly, the father has vast wealth and no need for any financial order against the mother whose resources are far more limited. Thirdly, the Court in Russia is seized with matters relating to:

(i)

The post nuptial agreement and its enforceability in terms of payments agreed to be made and whether these should reduced to reflect the father’s care of the children since July 2018;

(ii)

The validity of the post nuptial agreement and the possible re-opening of the division of the matrimonial assets (which include the mother’s property in London).”

Here Ms Timokhina is doing three things of significance. First, she accepts that the Russian courts are seized with matters relating to the PNA. Second, she deploys this fact to seek the strike out or stay of Mr Timokhin’s applications for financial provision for the two children. Third, she raises the prospect of the Russian courts determining the division of matrimonial property.

On 17 January 2023, Roberts J delivered a judgment in the Family Division (with one of Ms Timokhina’s current counsel Ms Perrins as junior counsel). This was Mr Timokhin’s appeal from an order of Recorder Nice sitting in the Central Family Court on 30 September 2022. This was because the Recorder placed a temporary stay on Mr Timokhin’s Schedule 1 application. Roberts J noted that Ms Timokhina “has had no contact with the children for over four years” (para 1). As Roberts J said at para 1:

“That stay was put in place “until such time as the Russian litigation is concluded including the determination of any appeal or appeals by either party from decisions made in that litigation.””

On page 2 of the judgment, Roberts J begins a section entitled “The background and the ongoing Russian litigation”. Ms Timokhina’s position in the appeal was that the Russian courts were seized with determining the validity of the PNA. Roberts J noted Ms Timokhina’s application to set aside the PNA. It seems to me that the defendant’s stance towards the Russian litigation in the English family law proceedings is highly significant. Here were opportunities for Ms Timokhina to apply to the English courts for any necessary financial remedies under Part III of the MFPA 1984. This contains powers to make orders for financial relief following a grant of foreign divorce. There was not a suggestion that the Russian proceedings themselves were procedurally abusive. Indeed, Ms Timokhina relied on the fact of the Russian court being seized. However, she became dissatisfied with the decisions of the Russian courts. She now submits that the enforcement of the Russian judgments is abusive of the process of this court. However, in the English proceedings, Ms Timokhina relied heavily on the existence and ongoing status of the Russian proceedings to oppose Mr Timokhin’s applications in the English court for financial relief in respect of the children. The difficulties of maintaining such a position are obvious. They are signposts to its inherent flaws. Here is a party who turned to the Russian court for relief, sought to use their existence to impede (stay/strike out) her former spouse’s applications in the English court, and now is deeply unhappy with the outcome in Russia.

Further problems lie with the nature of the claims in the defendant’s account of the proper legal approach by the Family Court to matrimonial proceedings. It is unnecessary to itemise each assertion and examine its validity.

The English courts do not act the role of courts of further appeal from judgments in foreign courts on PNAs. The English courts do not provide a “top-up” service. There are clear jurisdictional and substantive conditions that must be met before a successful application for financial remedy under Part III of the MFPA 1984 is granted. What is most striking here is that Ms Timokhina has completely failed to make any application under Part III. I should add that she has also failed to apply for financial relief under section 27 of MCA 1973.

Overall, and stripped to its essentials, the defendant’s stance comes to this: Mr Timokhin should make the Part III application that Ms Timokhina wishes to benefit from despite her having failed to make that very application. It is a proposition lacking realism. I cannot think it is right. Not in law; not on the facts of the case.

I must say something about child abduction. In May 2018, District Judge Gibson in the Central Family Court in London granted Mr Timokhin permission to relocate the children to Russia from England. In the late summer of 2019, Mr Timokhin removed his son from Russia back to this country. Child abduction proceedings were brought by Ms Timokhina. In July 2020, Cobb J found that the son had been abducted contrary to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. He made a return order to Russia. Mr Timokhin’s application to appeal to the Court of Appeal was refused. He made an application for asylum for the son that resulted in the return order being stayed pending its determination. The asylum application was ultimately refused, but in January 2022 MacDonald J set aside the return order due to the change of circumstances (passage of time, strengthening of ties).

Submissions

Defendant’s submissions. The defendant submitted in opening that the English court’s public policy of fairness and the Radmacher approach applies “even where there is a foreign PNA and/or an order of a foreign court enforcing a PNA.” The “central concern” of the English court is to meet the needs of the “weaker party” (here Ms Timokhina) and to ensure fairness following divorce. Accordingly, Ms Timokhina submits that the claimant has sought to “outflank” the protective jurisdiction of the English court in respect of PNAs. English law insists on a proper scrutiny of the PNA before it is enforced. The PNA is grossly unfair and has left Ms Timokhina “effectively bankrupt” in Russia (note also the order of the Saint Petersburg Commercial Court in 2024). There has been no consideration of her needs, an essential part of PNA analysis under English law. The two 2023 judgments the claimant seeks to enforce are fundamentally contrary to English public policy (“they undermine it”) and inconsistent with the Supreme Court’s decision in Radmacher. The English law’s underlying ethos is to protect the weaker spouse, usually the wife, as here. English law will not recognise foreign decisions that “offend against our ideas of justice” and enforcement of this judgment would “jar on the conscience of the court”. Fairness is the essential yardstick of the division of assets following a divorce rather than a literalist and inflexible enforcement of the terms of an unfair PNA as a contract. This is particularly so where, as here, the Russian courts have made decisions that exacerbate the unfairness. By seeking to enforce these judgments, Mr Timokhin “brazenly tries to subvert English matrimonial law” because he has “done well” in the Russian courts. If he wants relief in this jurisdiction, he needs to make an application in the Family Division under Part III to avoid circumventing scrutiny of the PNA which would entail applying English law fairness principles. Therefore, the defendant has a public policy defence to the enforcement of the judgments and they are impeachable in this way. Further, and “effectively following from the Radmacher/public policy conclusions”, the claimant’s attempt to “flout” and “circumvent” the protections under English family law is an “obvious abuse of process” (Section XII).

Claimant’s submissions. The defendant misunderstands and misstates English matrimonial law. There is no mandatory rule arising from Radmacher that all PNAs must undergo Part III scrutiny before being recognised or enforced. The claimant has no obligation under English law to subject the PNA he benefits from to the scrutiny of English family law by making his own application under the MFPA 1984. That the Russian courts have reached decisions that may be different to the English court is irrelevant. The question is whether enforcement of the Russian judgments would be repugnant to English law. It is not. Just as there is no public policy defence to enforcement, so there is no abuse of process.

Public policy defence

First, one must identify what is meant by public policy. It was summarised by this court in Alexander Bros Ltd (Hong Kong SAR) v Alstom Transport SA [2020] EWHC 1584 (Comm) at para 71:

“71.

“Public policy” as referred to in section 103(3) of the Arbitration Act means the public policy of England and Wales (as the country in which enforcement is sought) in maintaining the fair and orderly administration of justice. The classic formulation as to what is seen as contrary to public policy is “contrary to the fundamental conceptions of morality and justice” of the forum. IPCO (Nigeria) Ltd v Nigerian National Petroleum Corp [2005] EWHC 726 (Comm); [2005] 1 CLC 613 [13]; Deutsche Schachtbau- understanding Tiefbohrgesellschaft mbH v Ras Al Khaimah National Oil Co [1987] 3 WLR 1023, 1035.”

An alternative formulation that captures the essential nature of the concept is provided by the New Zealand court in Reeves v One World Challenge LLC [2006] N.Z.L.R. 184. It held that recognition should be refused should it “shock the conscience of a reasonable New Zealander’ or be “contrary to our view of basic morality” (paras 50, 56).

Second, the proper approach to public policy objections or defences in enforcement claims. The question is not whether the English courts would reach a different decision on the PNA. It is whether the order sought to be enforced amounts to such a fundamental contravention of the public policy of English law that this court should refuse to enforce it. It is set out clearly in Briggs on The Conflict of Laws (Adrian Briggs KC, 5^th Ed., 2024) (“Briggs 2024”), at 114 that the public policy defence should be applied restrictively. This is a central battleground in the instant case:

“the common law has been resolute in refusing to countenance the argument that a foreign judgment should not be recognized or enforced because the foreign court came to the wrong conclusion of fact or law”.

Here is Rule 51 narratively treated. In similar terms, the commentary to Dicey Rule 54 states that the few reported cases on the public policy defence over “many years” may be attributed to the defence’s “exceptional” nature. In Sinocore v RBRG (UK) Ltd [2018] EWCA Civ 838, Hamblen LJ (as he then was) said at para 25(1) that it “is widely accepted that the public policy ground should be given a restrictive interpretation”. The guiding principle is for “the court to ask whether the connection with England, and the nature of the illegality, are so serious that this fact alone will prevent the recognition or enforcement of a judgment otherwise satisfying the conditions for recognition and enforcement” (Briggs on Private International Law (Adrian Briggs KC, 2^nd Ed., 2006) (“Briggs 2006”) at 345).

I have little difficulty in accepting the claimant’s submission that the threshold for refusing enforcement on public policy grounds is a demanding one. Different jurisdictions frame the public policy defence in different ways. In the United States, foreign judgments deemed to be contrary to public policy include those that are inherently vicious, wicked, or immoral (Sarl Louis Feraud Int'l. v. Viewfinder, Inc., 489 F.3d 474, 479 (2d Cir. 2007). I proceed on the basis that in English law the test is to be restrictively interpreted but not insurmountable for all that. It is for the party relying on the public policy defence to prove it. Further, this court is not exercising a discretion. It must determine the question whether enforcement is contrary to the public policy of English law. As Lord Neuberger held in Golubovich v Golubovich [[2010] EWCA Civ 810 (“Golubovich”) at paras 68-69, the court is making a “proportionate judgment”, that is, a judgment that “gives proper weight to all factors and circumstances”. An illustration is given in Dicey at 789:

“where a husband obtained a decree of divorce from a Russian court in defiance of an order that no step be taken in those proceedings until after the hearing of a matrimonial matter before the English court, the Court of Appeal held in Golubovich v Golubovich that the statutory obligation [Family Law Act 1986, s.53(1)(c)] to recognise the divorce prevailed over the contention that the wrongful behaviour of the husband meant that recognition would be manifestly contrary to public policy.”

Briggs 2025 states at 14.35 that “there is a small category of foreign laws which are so repugnant to English standards that they will be denied even recognition; and a judgment giving effect to such a law will, in principle, be equally disqualified from recognition”. The text also states:

“The easy but unreal examples of when recognition of a foreign judgment would offend English public policy are an order to pay damages for breach of a contract to kidnap, or to sell narcotics, or those based on racist or similarly disgraceful laws. … Where the judgment, or the cause of action on which it was based, appears to be the product of bribery or other corrupt practice, it is pretty clear that public policy should refuse recognition, for the public policy against such depravity is universal, not mere local idiosyncrasy. … it is, after all, hard to believe that a judgment ordering damages for breach of a contract to smuggle alcohol, pornography, religious tracts, narcotics, or weaponry, into a foreign country which prohibits such imports would be recognised or enforced at common law.”

These examples illustrate, without prescribing, the extent of conflict with English law necessary. However, there must be a class of situations (let us say contracts) that would be interpreted differently in this jurisdiction or would result in different outcomes, that nevertheless may be legitimately recognised by the English court as not offending the moral conscience or prevailing legal ethos of the country to an invalidating degree. The question is not one of mere difference; it is about disqualifying essence: whether the substance of the foreign decision so offends English law that on public policy grounds it should not be recognised, let alone enforced.

Third, it follows from this, that the English court should not be used as a form of further appeal from the Russian Supreme Court or any other tier of Russian justice. On this question, the English court is primarily concerned with the integrity of its own procedure. Contained within Ms Timokhina’s public policy objection is the complaint that the Russian court “did not apply Radmacher principles” and failed to consider whether its decision would “reflect overall justice and fairness”. However, it is unrealistic to imagine that the Russian court, even if it knew of the decision in Radmacher, would enforce it, any more than an English domestic court would apply a Russian family law decision to determine a dispute here. That said, the strength and resolve of the policy under English family law to ensure fairness and protect the weaker spouse cannot be in doubt. It is embodied in the MFPA 1984 Act. Section 16 provides:

“16 Duty of the court to consider whether England and Wales is appropriate venue for application.

(1)

... Before making an order for financial relief the court shall consider whether in all the circumstances of the case it would be appropriate for such an order to be made by a court in England and Wales, and if the court is not satisfied that it would be appropriate, the court shall dismiss the application.”

This is often known as the gatekeeping provision, deciding whether it is appropriate to hear a claim for financial relief in the English courts following a foreign divorce. Once the jurisdiction is deemed appropriate, then a number of factors must be considered to achieve fairness and avoid financial hardship, especially for the more weakly placed spouse. In the Russian proceedings, the VCC in its first instance decision from July 2020 rejected the suggestion that the respective apportionments of assets to the parties under the PNA was relevant. It is right that in English law under Radmacher regard would be had to the division of assets in an assessment of a the nuptial agreement, and the English court would not find itself bound by the PNA if the sharing arrangements would result in a “predicament of real need”. However, the question for this court is whether it is appropriate to enforce a judgment reached in Russia with no consideration of sharing fairness. Ms Timokhina submits that the division of assets is “completely disproportionate” with Mr Timokhin receiving almost all of the “circa £100 million” of his wealth (her estimate), what she calls the “lion’s share”. She received approximately £7.5 million. Her portion is “paltry” in light of “her needs”.

Fourth, the defendant complains that the Russian court’s dismissal of Ms Timokhina’s allegations of violence by Mr Timokhin is “at odds with the sensitivity and thoroughness that would be applied to such allegations in English family proceedings: the allegations were rejected on the papers, without cross examination, based on flimsy reasons”. On this, the findings of fact made by the Russian courts have not been pleaded to be redetermined as part of these proceedings. This would be an extremely difficult submission to make good. It is not the function of this court to reopen findings of fact made in Russia. It is legitimate to examine breaches of natural justice, but that is different to reaching a different finding of fact to the Russian court. Indeed, before me, save for Russian law experts, no primary evidence has been called live in the trial. There has been no opportunity to challenge any witness of fact in cross-examination. No such application has been made to this court. It is not appropriate in such circumstances to reach conclusions about whether the findings of fact made by the Russian court are wrong on their merits and different findings of fact should be made. However, natural justice and public policy remain live issues.

An allied point is the complaint that an English court would not reject the allegations in family proceedings merely because criminal proceedings about the allegations were never initiated by the complainant. It is correct that the failure to make a criminal complaint, or the fact that such a complaint did not result in charge or trial of the alleged perpetrator would not be fatal to allegations of domestic abuse in family proceedings here. However, it is an oversimplification to assert that the sole reason that Ms Timokhina’s allegations of violence were rejected was because criminal proceedings against Mr Timokhin were never initiated. Similar considerations apply to the complaint that an English court would be “extremely unlikely” to exclude evidence about a “serious assault, particularly one which occurred at the same time as the signing of the PNA”. Ms Timokhina alleges that she was assaulted by the claimant after the drawing up of the PNA, as the Russian courts point out. I can entertain the possibility under English law that a course of conduct argument could be mounted where post-agreement violence may support pre-concluding coercion. But I have received no evidence about the relevant rules of evidence in Russian law. No specific provisions of any evidence code have been placed before me, nor any supporting precedents, should they exist. The Russian courts are entitled to have their own rules of evidence. I cannot think that even if they lack a retrospective relevance of course of conduct concept, that is a breach of natural or substantial justice. Equally, I am not persuaded that the fact that Ms Timokhina alleges she was assaulted after the PNA was concluded results in a sufficient breach of natural or substantial justice to impeach the judgments.

Fifth, to examine Ms Timokhina’s difficulty from another angle, it should be remembered that these are Part 8 proceedings. The court must answer questions of law and the further issues agreed between the parties without receiving live evidence of fact. Accordingly, oral testimony has been restricted to expert evidence to assist the court determine the content of Russian law. That enquiry does not involve relitigating and making fresh findings of fact about the cross-allegations made by the parties about what happened in their marriage or the prevailing circumstances at the making of the PNA. That this must be true can be seen from the list of agreed issues. There is no finding of fact the court must determine save for resolving any disputes about the content of Russian law.

Sixth, the defendant submits that “An English Court would not in ancillary relief proceedings enforce the PNA as if it were a commercial court enforcing a commercial contract.” This is true. But these are not ancillary relief proceedings in an English family court. The proceedings are enforcement proceedings in the King’s Bench Division. There is an ongoing conceptual discussion as will be seen when I examine Radmacher about the status of a PNA under English law.

Seventh, it is submitted that it is abusive for the claimant to seek to enforce “where he still has on foot his Sch.1 CA1989 proceedings” which he mentions in his witness statement while at the same time “hedg[ing] his bets”. I will consider the question of abuse of process in due course. This Schedule 1 complaint by Ms Timokhina has largely fizzled out. I return to it later under the undeveloped objections section (Section XIV).

Eighth, Briggs 2006 states “It will be rare [that a public policy defence can be raised] by a party who invoked the jurisdiction of the foreign court but whose claim was rejected by it” (344). It will become clear that Ms Timokhina made forceful and repeated applications in the Russian courts. Some were granted, some rejected. I judge that Briggs here underscores the challenge faced by Ms Timokhina in establishing a public policy defence when she chose to invoke the jurisdiction of the Russian court.

This suffices to introduce some of the main lines of argument advanced by the parties on the public policy defence. Much in Ms Timokhina’s case turns on Radmacher. Therefore, it is necessary to ascertain what Radmacher decided, and did not.

Radmacher

Facts

The husband, a French national from an affluent family, was working as an investment banker when he met the wife, a German national from an exceptionally wealthy family. They planned to marry but, before they did, the wife’s father was concerned to protect the family’s holdings in various family-owned companies. The wife’s family arranged for a German notary to draw up a nuptial agreement. The agreement was subject to German law and provided that neither party was to acquire any benefit from the property of the other during the marriage or on its termination. The husband, who at the time worked as a banker, declined the opportunity to take independent advice on the agreement. The parties signed the agreement in Germany more than three months before they married in London in 1998. It was in London that they made their matrimonial home. They subsequently had two children.

During the marriage, the wife’s father transferred substantial capital assets to the wife. A few years into the marriage, the husband became disenchanted with banking and gave up his job to study full-time for a doctorate at Oxford. In 2006 the parties separated after eight years of marriage. Both petitioned for divorce, the husband also claiming ancillary relief against the wife. They were divorced in 2007. The wife took the children to live abroad. On the ancillary relief application, the judge held that, although the ante-nuptial agreement should be given some weight, it would not be fair to hold the husband to it because its preparation had been very one-sided: it deprived the husband of all claims to the furthest permissible legal extent even in a situation of want; there had been no negotiations; the husband had received no independent legal advice; there had been no disclosure of assets by the wife; two children had subsequently been born to the marriage. As well as making awards to the husband so he could provide for the children when they lived with him, the judge awarded him, inter alia, a lump sum of £2.5m to buy a home in London and £2.335m to provide him with an annual income of £100,000 for life. On the wife’s appeal, the Court of Appeal held that, in the circumstances of the case, the judge should have given the ante-nuptial agreement decisive weight and should have made provision only for the husband’s role as a father, but not otherwise for his own long-term needs. Consequently, the home in London would not be the husband’s absolutely, but would revert to the wife after the younger child’s 22^nd birthday. The income fund would be reduced to provide him only with an appropriate income until that date. The case was remitted to the judge for assessment on that basis. The case was appealed to the Supreme Court.

Issue

While Lady Hale dissented, her formulation of the essential question is marked with characteristic clarity:

“131.

The issue in this case is simple: what weight should the court hearing a claim for ancillary relief under the Matrimonial Causes Act 1973 give to an agreement entered into between the parties before they got married which purported to determine the result?”

Decision

The Supreme Court by an 8-1 majority (Lady Hale in sole dissent) held that although it was the court and not any prior agreement between the parties which would determine the appropriate ancillary relief when a marriage came to an end, the rule that agreements providing for the future separation of the parties to a marriage was contrary to public policy was obsolete and no longer applied. Therefore, the court should give weight to an agreement made between a couple prior to and in contemplation of their marriage about how their financial affairs should be regulated in the event of their separation in circumstances, where it was fair to do so. In appropriate circumstances, the court could hold the parties to the agreement even when the result would be different from that which the court would otherwise have ordered. Further, there was no inherent distinction in policy terms between ante-nuptial and post-nuptial agreements (Lady Hale dissenting).

The Supreme Court held that on an application for ancillary relief, the court should apply the same principles when considering ante-nuptial agreements as it applied to post-nuptial agreements. A nuptial agreement would carry full weight only if each party had entered into it of his or her own free will, without undue influence or pressure, having all the information material to his or her decision to enter into the agreement and intending that it should be effective to govern the financial consequences of the marriage coming to an end. Thus, the court should give effect to a nuptial agreement which was freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to the agreement (Lady Hale dissenting).

Dismissing the appeal, and applying those principles, the Court of Appeal had been correct to conclude that the needs of the husband were not a factor which rendered it unfair to hold him to the terms of the ante-nuptial agreement. This was subject to the wife being required to make provision for the needs of the children while resident with him. Accordingly, it was fair that he should be held to the agreement (Lady Hale dissenting).

Discussion: Radmacher

Let me be clear what I derive from the Supreme Court’s judgment in Radmacher.

In the more remote past, it was contrary to public policy for a couple who were married or about to be married to make an agreement which provided for the contingency that they were about to separate on the basis that this might encourage them to do so. Previously, the court paid no regard to them (para 31). After 1957, separation agreements were given considerable weight, as increasingly were post-nuptial agreements, in marked distinction to the treatment of ante-nuptial agreements. But the reasons for sweeping away the old rule for separation agreements applied equally to ante-nuptial agreements (para 52). The question is what weight to attach to the nuptial agreement.

Following divorce, while it is not the parties that ultimately determine the appropriate ancillary relief, their nuptial agreement is a potentially relevant factor in determining the appropriate relief overall. The weight that the court attaches to the nuptial agreement will be fact-specific. The agreement may make provisions at odds with what a court would otherwise consider to be fair. However, a court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless, in the circumstances prevailing, it would be unfair to hold the parties to their agreement. Lord Phillips said at para 75:

“75.

White v White and Miller v Miller establish that the overriding criterion to be applied in ancillary relief proceedings is that of fairness and identify the three strands of need, compensation and sharing that are relevant to the question of what is fair. If an ante-nuptial agreement deals with those matters in a way that the court might adopt absent such an agreement, there is no problem about giving effect to the agreement. The problem arises where the agreement makes provisions that conflict with what the court would otherwise consider to be the requirements of fairness. The fact of the agreement is capable of altering what is fair. It is an important factor to be weighed in the balance. We would advance the following proposition, to be applied in the case of both ante- and post-nuptial agreements, in preference to that suggested by the Board in MacLeod:

“The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.”” (emphasis provided)

The emboldened text has subsequently been called the “seminal principle” in Radmacher (see Court of Appeal in Helliwell v Entwistle [2025] EWCA Civ 1055 at para 89). In consequence, a nuptial agreement can alter what is fair. But a vital question in the instant case is to ask: fair in what?

I judge the answer is in the determination of the appropriate ancillary relief in an application for ancillary relief before the court. Lady Hale made plain in her formulation of the “simple” issue that it was about ancillary relief, and particularly the MCA 1973. This is a point I must return to. To continue, while a nuptial agreement must not prejudice the reasonable requirements of any children of the family, respect should be given to individual autonomy. The court continued at para 78:

“78.

The reason why the court should give weight to a nuptial agreement is that there should be respect for individual autonomy. The court should accord respect to the decision of a married couple as to the manner in which their financial affairs should be regulated. It would be paternalistic and patronising to override their agreement simply on the basis that the court knows best. This is particularly true where the parties’ agreement addresses existing circumstances and not merely the contingencies of an uncertain future.”

The question of non-matrimonial property was considered by the court at para 79:

“79.

Often parties to a marriage will be motivated in concluding a nuptial agreement by a wish to make provision for existing property owned by one or other, or property that one or other anticipates receiving from a third party. The House of Lords in White v White and Miller v Miller drew a distinction between such property and matrimonial property accumulated in the course of the marriage. That distinction is particularly significant where the parties make express agreement as to the disposal of such property in the event of the termination of the marriage. There is nothing inherently unfair in such an agreement and there may be good objective justification for it, such as obligations towards existing family members.”

Finally, Lord Phillips said at para 83:

“83.

So far as concerns the general approach of the court to ante-nuptial agreements, Wilson LJ at para 130 endorsed the following comments of Baron J at first instance

Once more, the emphasis is on how the court should approach a claim for financial relief and its “quantification”. This echoes the first paragraph of the judgment:

“1.

When a court grants a decree of divorce, nullity of marriage or judicial separation it has the power to order ancillary relief. Ancillary relief governs the financial arrangements between the husband and the wife on the breakdown of their marriage. Sometimes the husband and wife have already made an agreement governing these matters. The agreement may have been made before the marriage (“an ante-nuptial agreement”) or after the marriage (“a post-nuptial agreement”). Post-nuptial agreements may be made when the husband and wife are still together and intend to remain together, or when they are on the point of separating or have already separated. The latter type of post-nuptial agreement can be described as “a separation agreement”. We shall use the generic description “nuptial agreements” to embrace both ante-nuptial and post-nuptial agreements.”

The theme emerges with persistent force throughout the Supreme Court’s judgment: the focus is on the court’s consideration of ancillary relief. This is thematically weaved throughout the court’s judgment. To give but two initial examples (emphasis provided):

“7.

There can be no question of this Court altering the principle that it is the Court, and not any prior agreement between the parties, that will determine the appropriate ancillary relief when a marriage comes to an end, for that principle is embodied in the legislation. What the Court can do is to attempt to give some assistance in relation to the approach that a court considering ancillary relief should adopt towards an ante-nuptial agreement between the parties.

…

22.

The principles to be applied to the grant of ancillary relief have twice been considered by the House of Lords, in cases involving substantial assets.”

The court then summarised White v White [2001] 1 AC 596 and Miller v Miller; McFarlane v McFarlane [2006] UKHL 24; [2006] 2 AC 618. The Supreme Court continued:

“28.

The implications of these two decisions were considered by the Court of Appeal, Sir Mark Potter P, Thorpe and Wilson LJJ in Charman v Charman (No 4) [2007] EWCA Civ 503; [2007] 1 FLR 1246. The court observed that in Miller the House had unanimously identified three main principles which governed distribution of property in ancillary relief proceedings – “need (generously interpreted), compensation and sharing” and that each of the matters set out in sub-paragraphs (b) to (h) of section 25(2) of the 1973 Act could be assigned to one of the three (paras 68-69).

37.

Although separation agreements do not override the powers of the Court to grant ancillary relief, they have been held to carry considerable weight in relation to the exercise of the court’s discretion when granting such relief.”

43.

Judges sitting in the Family Division were prepared to give some weight to ante-nuptial agreements, but certainly not to the extent of holding that they should govern the terms of ancillary relief unless there were strong reasons for departing from them.

62.

Is it important whether or not post-nuptial or ante-nuptial agreements have contractual status? The value of a contract is that the court will enforce it. But in ancillary relief proceedings the court is not bound to give effect to nuptial agreements, and is bound to have regard to them, whether or not they are contracts.

63.

In summary, we consider that the Board in MacLeod was wrong to hold that post-nuptial agreements were contracts but that ante-nuptial agreements were not. That question did not arise for decision in that case any more than in this and does not matter anyway. It is a red herring. Regardless of whether one or both are contracts, the ancillary relief court should apply the same principles when considering ante-nuptial agreements as it applies to post-nuptial agreements.

72.

…We have already explained why we do not consider it material in English ancillary relief proceedings whether the nuptial agreement under consideration is or is not a contract. The court can overrule the agreement of the parties, whether contractual or not, and applies the same criteria when considering whether to do so.”

I have already set out para 75, and how Lord Phillips addresses the White v White approach to fairness in ancillary relief. Lord Mance delivered a short concurring judgment. He said at para 128:

“128.

Like Lady Hale, para 138 (1) and (2) and para 156, I go no further and express no view on the binding or other nature of an ante-nuptial agreement. It is not difficult to envisage circumstances in which, if such an agreement were to be regarded as having contractual force, its enforcement could be sought before a court, particularly an overseas court, lacking the jurisdiction under Part II of the 1973 Act which applies only when the forum is an English divorce court.”

Here Lord Mance confirms that the Part II jurisdiction of the MCA 1973, which governs ancillary relief following divorce, is “only” applicable when the forum is an English divorce court. In the instant case, neither party contends that the PNA has contractual force. The claimant seeks to enforce not the PNA. Instead, he seeks to recognise under English law the Russian judgments and then to enforce them. Although dissenting, Lady Hale said about the general approach to ancillary relief (para 138(4)):

“(4)

I disagree with the way in which the majority have formulated the test to be applied by a court hearing an application for financial relief, which I believe to be an impermissible gloss upon the courts’ statutory duties. However, I agree that the court must consider the agreement in the light of the circumstances as they now exist and that the way the matter was put by the Privy Council in MacLeod v MacLeod [2008] UKPC 64, [2010] 1 AC 298, was too rigid, and in some cases, too strong; and I broadly agree with the majority upon the relevant considerations which the court should take into account.”

Therefore, Lady Hale was clear that the question remained that of the approach to nuptial agreements in ancillary relief proceedings. She put it this way at para 150:

“… the broader question which is before us now: what is the weight to be given to an agreement between a husband and a wife as to the financial consequences of their separation or divorce by a court which is invited to make orders about it?”

At para 156, Lady Hale continued:

“(4)

However, the court has power to vary the financial arrangements for their separation, made in agreements between husbands and wives, under sections 35 and 36 of the 1973 Act.

(5)

None of these agreements can oust the jurisdiction of the court to make financial orders should the parties separate or divorce.

(6)

Even if the parties have agreed what the court’s order should be, the order derives its authority from the court and not from the parties’ agreement.

(7)

The court therefore has its own independent duty to check the arrangements agreed between the parties and to evaluate them in the light of its statutory duties under section 25 of the 1973 Act.”

The context of these comments is critical: these are all financial orders made by family courts. The section 25 duty mentioned by Lady Hale arises when the court is considering financial provision orders “in connection with divorce proceedings” (section 23). Therefore, “on making a divorce”, the court may make one from an extensive list (or menu) of financial provision orders. Section 24 provides for property adjustment orders in connection with divorce proceedings and section 24E similarly in respect of pension sharing on making a divorce.

Having considered the three judgments delivered in Radmacher, including Lady Hale’s dissent, I am left in no doubt that the Supreme Court handed down a judgment of cardinal importance about how the English court should approach nuptial agreements in ancillary relief proceedings. However, I cannot accept that Radmacher creates or expresses an established English law public policy of mandatory application outside ancillary relief proceedings. Such a point was never argued by the parties in Radmacher (see submissions of parties detailed at [2011] 1 AC 534, 537A-541H). Unsurprisingly, such a point does not feature in the court’s judgment either as ratio or obiter, nor was it considered and rejected. (Lord Mance’s obiter (para 128) cautioning against PNA’s being treated as agreements with contractual force is a different point., not the mandatory rule point.)

In ancillary relief cases with a foreign nuptial agreement before the English court, the court exercises an original discretionary jurisdiction. Under Part III of the MFPA 1984, the English court exercises a discretion that may result in a different overall and ultimate financial provision than that ordered by a foreign court. But the critical element in all of this is how the statutory discretion arises: through statute and when the court has an ancillary relief application before it in the Family Division or Family Court. That is not the position in the instant case. There is an application in the King’s Bench Division to recognise Russian judgments. If Ms Timokhina had made a Part III ancillary relief application, I have little difficulty in concluding that the English court would not uncritically rubber stamp the Russian judgments, but would be bound to consider questions of fairness, especially given Ms Timokhina’s concerns. It may reach the same division of assets as the Russian court or it may not and this is not the forum to determine that. But the English court would use the English legal yardsticks of fairness. Ms Timokhina has made a deliberate and strategic choice not to make the Part III application that has been open to her. To oppose enforcement in the King’s Bench, therefore, she in essence makes two points about English family law jurisprudence.

First, that Radmacher creates a “mandatory rule”. This is said to mean that PNAs must be subject to fairness scrutiny in every circumstance before any court can give effect to them or act on them. This requires the court to import into the King’s Bench Division from the Family Division and the Family Court the apparatus of ancillary relief and the doctrinal principles of fairness restated and clarified in Radmacher (building on White v White and Miller v Miller). No authority has been supplied for this proposition. It is said to arise from Radmacher and the jurisprudence around it. I have found this submission unconvincing in the absence of any tangible precedential support and it finds no support in Radmacher itself.

Second, she submits that Mr Timokhin must make an application under Part III if he wishes an English court to give effect to the PNA. This seems to me to be misconceived. I cannot accept that a person with a favourable foreign judgment must make a separate and additional application under Part III when they do not seek alleviation of any aspect of the foreign order. I say alleviation because that is the legislative purpose of Part III, as our courts have confirmed. Instead of making a Part III application in the English court, Ms Timokhina actively and persistently litigated the PNA in Russia. Now she opposes the enforcement of the judgments made by the national courts she chose to determine the status and effect of the nuptial agreement. I cannot think this is a proper basis to oppose enforcement.

Ouster

Next, I consider the question of ouster. The concept is mentioned at para 2 of Radmacher:

“2.

A court when considering the grant of ancillary relief is not obliged to give effect to nuptial agreements – whether they are ante-nuptial or post-nuptial. The parties cannot, by agreement, oust the jurisdiction of the court. The court must, however, give appropriate weight to such an agreement. This appeal raises the question of the principles to be applied by the court when considering the weight that should be attached to an ante-nuptial agreement.” (emphasis provided)

I have emboldened the second sentence in the paragraph 2 since it is relevant to one of the submissions made by the defendant: that the PNA and/or the judgments of the Russian courts cannot oust the jurisdiction of the English court to scrutinise the PNA for fairness. I can readily see that if there were a nuptial agreement that stated that the terms of the agreement would be conclusive and not subject to the scrutiny of the English court in ancillary proceedings, it would not be difficult for an English court in ancillary proceedings to firmly reject the ouster. However, the instant case differs in two relevant ways. First, the proceedings before the English court are not ancillary relief proceedings. They are concerned with the recognition of foreign judgments and then their enforcement. Second, the PNA and the Russian judgments do not purport to ouster fairness scrutiny in ancillary relief proceedings in England. There is no ouster of any English law public policy in ancillary relief proceedings as there are no ancillary relief proceedings. I note that the express terms of the PNA include that the parties agreed to enter into it

“with the purpose of strengthening and preservation of marriage relations, fair settlement of property relations, both during the marriage, and in case of termination thereof, as well as for protection of the interests of each of the Spouses, have voluntary, on their mutual consent and acting according to Sections 40, 41, 42 of the Russian Federation Family Codes, entering into this marriage contract …”

Therefore, the PNA was explicitly designed to achieve the “fair settlement” of property, and both attested that they entered into it voluntarily. This is reinforced by further clauses later in the PNA:

“6.3.

Each of the Parties confirms that he/she possesses all necessary information on all circumstances which are required to enter into this Contract. Each of the Parties confirms that the other Party has provided he/she with all requested and necessary information on the said circumstances.

6.3.1

The Wife assures and confirms that she has received all necessary and exhaustive advice, as well as qualified explanations as to the text and the content of this Contract from lawyers and solicitors under the RF laws, as well as under the laws of the United Kingdom of Great Britain and Northern Ireland within the territory of corresponding states.

6.4.

The Parties acknowledge that the terms of this Contract are fair and mutually beneficial, and do not derogate the rights and lawful interests of either of the Parties. Each of the Parties confirms that the terms of this Contract for each of the Parties necessary conditions of life, as well do not violate the rights and lawful interests of the children.

6.5.

The Parties confirm, before the notary, that they are not limited in their capacity, are not under trusteeship, guardianship, or custodial care, that they, by their state of health, are able to exercise their rights and to perform their duties independently, that they do not suffer any diseases which prevent from awareness of the essence of the Contract signed and the circumstance of entering into thereof, that the Parties have no circumstances which compel them to enter into this Contract on the terms highly disadvantageous for them.”

It seems to me that these clauses create further significant difficulties for Ms Timokhina’s case.

Payward

In submissions, both parties referred to the case of Payward v Chechetkin [2023] EWHC 1718 (Comm) (“Payward”). Bright J refused to enforce a foreign US arbitration award (with Californian arbitration seat) because it would be contrary to the public policies underlying the Consumer Rights Act 2015 (“CRA 2015”) and the Financial Services and Markets Act 2000 (“FSMA 2000”).

The facts are that the defendant opened an account with an online cryptocurrency trading platform. The contract was with Payward Limited, a British corporate entity, part of group of companies, some of which were registered in the United States. The defendant lost heavily in his trading, in the range of £600,000. He filed a claim in the High Court maintaining that the contract was unenforceable as it involved regulated activities under the FSMA 2000, and the claimant lacked the necessary regulatory authorisation. The claimant sought to rely on a term in the contract (clause 23) that disputes should be resolved by arbitration with the seat in California. The defendant opposed the arbitration on public policy grounds, claiming it was contrary to the CRA 2015 as well as FSMA 2000. The arbitrator declined to consider any consumer rights under English law. Bright J had little difficulty in finding that the defendant was a consumer. The court refused to enforce the arbitration award on the grounds of public policy due to the rights that would ordinarily protect the defendant from unfairness being circumvented because of the Californian arbitration.

I need little persuasion that a PNA that set out to oust the jurisdiction of the English court from making ancillary relief orders (assuming the parties have sufficient connection to this country) is at grave risk of being invalid in any ancillary relief proceedings before an English court exercising family jurisdiction. The importance of the court maintaining its discretion has been emphasised in the past. The Supreme Court observed this in Radmacher at para 32:

“32.

In Hyman v Hyman the husband had left the wife for another woman. Adultery by the husband was not at the time a ground for divorce unless there were aggravating circumstances, such as incest. The parties had entered into a deed of separation under which the husband had paid two lump sums and agreed to make weekly payments of £20 for the life of the wife. The deed included a covenant by the wife that she would not institute any proceedings to make him pay more than this. When the Matrimonial Causes Act 1923 gave the wife the right to petition for divorce on the grounds of her husband’s adultery alone, the wife divorced her husband and applied to the court for maintenance pursuant to section 190(1) of the Supreme Court of Judicature (Consolidation) Act 1925. This gave the court the power, on any decree for divorce, to order the husband to pay maintenance. The husband argued that the wife was precluded by her covenant from bringing this claim. The House rejected this argument. Lord Hailsham LC held at p 614 that:

“the power of the court to make provision for a wife on the dissolution of her marriage is a necessary incident of the power to decree such a dissolution, conferred not merely in the interests of the wife, but of the public, and that the wife cannot by her own covenant preclude herself from invoking the jurisdiction of the court or preclude the court from the exercise of that jurisdiction.””

With this backcloth, it seems to me that certain features of Payward are vital. The defendant was a British national, domiciled in Britain. He was based at all relevant times in the England. The contract was with a British limited company incorporated in England. The contract was for services that were paid for in UK sterling and paid for under transactions to and from English bank accounts. The contract between the defendant consumer and the claimant company was one with a close connection with the UK. As such the consumer protection rights under the CRA 2015 would ordinarily apply. Bright J found that section 74 was applicable. This meant, as he said at para 126:

“… where a consumer contract has a close connection with the UK, the consumer rights issues that fall under the scope of the Consumer Rights Act 2015 should be dealt with under that UK statute rather than any foreign law.”

The arbitration clause ousted those consumer rights. Yet under section 71 of the CRA 2015, the court has a duty to consider the fairness of a term in proceedings “which relate to a term of a consumer contract”. Indeed, the court must consider whether the term is fair “even if none of the parties to the proceedings has raised that issue or indicated that it intends to raise it”. Here was an English contract between a British citizen resident in this country made with an English company, yet because of the arbitration clause and the arbitrator’s decision that English law had no relevance, the defendant was stripped of the consumer protection that was the legislative purpose of the statute.

The situation in the instant case is very different. Both parties are Russian citizens, each of them born in Leningrad. By the time of the signing of the PNA, they had both lived for the great preponderance of their life in Russia. They were married in Russia and lived as husband and wife for years in Russia. One of their children was born in Russia, the other in Helsinki. Shortly before their separation, the parties signed a PNA in Saint Petersburg, Russia. The wife filed a divorce petition in England and the husband filed a divorce petition in Russia. They were divorced following a certificate of dissolution issued by Civil Registry Office in Saint Petersburg, Russia in October 2017. In 2018, the wife was imprisoned in Russia following a guilty plea to a criminal bribery offence that took place in Russia. After she was released in August 2019, she remained living in Russia. The wife issued proceedings in Russia in November 2019 to enforce the PNA. In December 2019, she issued further proceedings in Russia for a declaration that the PNA is null and void. The wife informed the English Family Court that the Russian court was seized with determining matrimonial matters arising from the PNA. Indeed, the wife relied on the Russian court being so seized as the basis of her application to stay or strike out the husband’s applications in the Family Court in England. There was extensive litigation concerning the PNA is Russia for approximately seven years. The case went to the Russian Supreme Court once substantively and for a second time on a further permission application that was refused. The proceedings went up and down the tiers of the Russian legal system for years. Having received judgments substantially in his favour, the husband then sought to enforce these two Russian judgments in England as a debt. The wife is living in Russia. She opposes the enforcement as she uses the London property to fund her life (and that of her mother) in Russia. The enforcement proceedings are in the King’s Bench Division. No English family court has been asked to determine the validity of the PNA under English family law or indeed its fairness. This division of the High Court does not have the jurisdiction to determine such matters. At no point has the wife made a Part III application in the English Family Court following the Russian divorce. It has been open to her to do so.

Therefore, the instant facts are markedly different to Payward. Nonetheless, issues of public policy arise. This is why it is essential to understand what Radmacher decided and what it did not. This court is not determining any ancillary relief proceedings. The claimant submits with reference to Payward, “this is what a mandatory test looks like”. Parliament has created a series of clear and comprehensive protections for consumers. These rights are mandatory. Indeed, as noted, where proceedings “relate to a term of a consumer contract”, the court has a statutory duty to consider the fairness of the term even if the parties do not ask the court to consider the question. As Birss LJ said in Soleymani v Nifty Gateway LLC [2022] EWCA Civ 1297 at para 145:

“Part of the purpose of s 71 itself is so that decisions on consumer rights are made in public. They may have precedential value. The decisions are not only for the benefit of the individual consumer in the instant case but for the benefit of the consumers as a class (see Oce´ano Grupo Editorial SA v Roccio´ Murciano Quintero (Joined cases C-240/98 to C-244/98) EU:C:2000:346, [2000] ECR I-4941, [2002] 1 CMLR 1226 (at para 28)).”

In such circumstances, one readily understands why Bright J concluded that the arbitration clause was contrary to English public policy. The English contract in Payward is very different to the nuptial agreement in this case. I am not persuaded that Payward assists the defendant.

Part III (MFPA 1984)

The absence of cases in which a spouse with a favourable PNA judgment in her or his favour makes an application under Part III of the MFPA 1984 is unsurprising. The courts have repeatedly explained the purpose of Part III proceedings. For example, in Agbaje v Agbaje [2010] UKSC 13 (“Agbaje”), the Supreme Court held at 71-73 as follows:

“The proper approach

71 To take up some of the points made in the preceding paragraphs, the proper approach to Part III simply depends on a careful application of sections 16, 17 and 18 in the light of the legislative purpose, which was the alleviation of the adverse consequences of no, or no adequate, financial provision being made by a foreign court in a situation where there were substantial connections with England. There are two, interrelated, duties of the court before making an order under Part III. The first is to consider whether England and Wales is the appropriate venue for the application: section 16(1). The second is to consider whether an order should be made under section 17 having regard to the matters in section 18. There are two reasons why the duties are interrelated. First, neither section 16(2) nor section 18(2)(3) refers to an exhaustive list of matters to be taken into account. Section 16(1) directs the court to have regard to “all the circumstances of the case” and section 16(2) refers the court to certain matters “in particular”. Second, some of the matters to be considered under section 16 may be relevant under section 18, and vice versa. An obvious example would be that section 16(2)(e) refers the court to the financial provision which has been made by the foreign court. Plainly that would be relevant under section 18. So also the direction in section 18(6) to the court, in considering the financial resources of a party, to have regard to whether an order of a foreign court has been complied with would plainly be relevant in considering whether England is the appropriate venue.

72 It is not the purpose of Part III to allow a spouse (usually, in current conditions, the wife) with some English connections to make an application in England to take advantage of what may well be the more generous approach in England to financial provision, particularly in so-called big-money cases. There is no condition of exceptionality for the purposes of section 16, but it will not usually be a case for an order under Part III where the wife had a right to apply for financial relief under the foreign law, and an award was made in the foreign country. In such cases mere disparity between that award and what would be awarded on an English divorce will certainly be insufficient to trigger the application of Part III. Nor is hardship or injustice (much less serious injustice) a condition of the exercise of the jurisdiction, but if either factor is present, it may make it appropriate, in the light of all the circumstances, for an order to be made, and the nature of the provision ordered. Of course, the court will not lightly characterise foreign law, or the order of a foreign court, as unjust.

73 The amount of financial provision will depend on all the circumstances of the case and there is no rule that it should be the minimum amount required to overcome injustice. The following general principles should be applied. First, primary consideration must be given to the welfare of any children of the marriage. This can cut both ways as the children may be being supported by the foreign spouse. Second, it will never be appropriate to make an order which gives the claimant more than she or he would have been awarded had all proceedings taken place within this jurisdiction. Third, where possible the order should have the result that provision is made for the reasonable needs of each spouse. Subject to these principles, the court has a broad discretion. The reasons why it was appropriate for an order to be made in England are among the circumstances to be taken into account in deciding what order should be made. Where the English connections of the case are very strong there may be no reason why the application should not be treated as if it were made in purely English proceedings. The full procedure for granting ancillary relief after an English divorce does not apply in Part III cases. The conditions which can be attached to leave, together with the court's case management powers, can be used to define the issues and to limit the evidence to be filed, as was done by Munby J in this case. This enables the jurisdiction to be tailored to the needs of the individual case, so that the grant of leave does not inevitably trigger a full blown claim for all forms of ancillary relief.”

Following Agbaje, the Court of Appeal stated in Zimin v Zimin [2017] EWCA Civ 1429 (“Zimin”):

“47.

Whilst the proper application of the Agbaje principles is not always straight forward, it is clear for the purposes of the present case that:

i)

The legislative purpose is to alleviate the adverse consequence of no, or no adequate financial provision having been made by a foreign court in a situation.”

Following Zimin, the Court of Appeal traversed the terrain once more in Potanina v Potanin [2025] EWCA Civ 1136 (“Potanina”). King LJ stated at para 35:

“that Part III of the 1984 Act cannot be deployed to top up a foreign award in order to make it equate to an English award (see Zimin at [47(iii)]) – a reference to Lord Collins’ judgment in Agbaje at [65] and [70].”

Considering the express terms of Lord Collins’ judgment in Agbaje and the more recent observations of the Court of Appeal in Zimin and Potanina, it is clear why there is no legal trace of a spouse with a favourable PNA judgment from a foreign court making a Part III application. Part III is essentially about “alleviation” of inadequate financial provision resulting from the foreign court’s decision (or asset division). Ms Timokhina claims to find herself in a position that needs alleviating. As the claimant points out, she could have filed a Part III claim and used it as a defence to enforcement. This is a remedy she has “failed to utilise”. Against this, the defendant submits that there is nothing in the 1984 Act that prevents Mr Timokhin filing Part III proceedings. While this may be the case, it makes little logical sense and does not address the legislative intention informing the statute. A sense of realism must be introduced.

It should also be noted - a point I must come to - how the Supreme Court in Agbaje (para 53) expressly said that “the court will not lightly characterise foreign law, or the order of a foreign court, as unjust.” That is what Ms Timokhina complains about: that the two 2023 decisions of the Russian courts are unjust.

Recognition of foreign divorce decrees

Both the parties addressed the court about the approach to the non-recognition of foreign divorce orders as exemplars of the proper approach to the refusal to recognise foreign judgments. As the defendant puts it, the approach in Dicey Rule 54 is “also the approach to be adopted in a family context”. In support of that submission, the defendant cites Gray v Formosa [1963] P 259 (CA) (“Gray”). In that case, a couple married at a registry office in England. The husband, a Maltese national, returned to Malta and obtained a nullity decree as the marriage was not in a Roman Catholic church but a registry office, and so not recognised under Maltese law. The English court refused to recognise the Maltese decree. Donovan LJ (270) said the Maltese judgment was contrary to “present-day notions of tolerance and justice” and that the wife was “validly married according to our law”. Accordingly, the English court retains a residual discretion to ensure “flagrant injustice” is avoided (ibid.). Lord Denning MR put it this way at 269:

“Suffice it to say that I am content to decide this case on the simple basis that the courts of this country are not compelled to recognise the decree of the court of another country when it offends against our ideas of justice.”

Pearson LJ stated at 271 that the decree “does offend against our views of substantial justice, and for that reason the decree ought not to be recognised.” Ms Timokhina also submits that in Gray, “The financial consequences for the wife of recognising the foreign decision were also relevant to the court’s decision to refuse to recognise the Maltese court’s ruling.” This submission is supported by what Lord Denning MR said at 269, “Suppose he comes back to England, as he may do. Is the wife to have no redress against him? Is she to get no maintenance from him?” Donnovan LJ added at 270:

“Add to this that such a decree is pronounced in favour of a husband who deserted her and his children and has left them to be supported by the taxpayer in this country, save for a few shillings a week he has condescended to pay for one only of his three children. A case more clamant for the exercise of a just discretion could hardly be conceived, and on that ground I would disregard the Maltese decree.”

Therefore, the defendant’s account of Gray is accurate. The Court of Appeal’s judgment was handed down in 1962. The date is important. At that time, there were calls for a change to the law. The development is taken up by Thorpe LJ in Golubovich. He noted at para 49:

“In that era our courts not infrequently refused to recognise a foreign decree pronounced in a jurisdiction in which the respondent wife would have scant right to ancillary relief. This problem was considered by the Law Commission in its report Financial Relief After Foreign Divorce (Law Com. No. 117).”

The Law Commission report referenced the observation of Lane J in Joyce v Joyce and O’Hare [1979] Fam.93, where she said of non-recognition of foreign decrees on public policy grounds that restricted the financial relief a party might obtain, “If the courts of this country were empowered to grant ancillary relief on recognition of a foreign decree, the position would be somewhat different”. The report stated at para 13:

“It is difficult to predict whether the decision in Joyce v Joyce and O’Hare will encourage parties to invite the courts to refuse recognition of foreign divorces not for lack of jurisdiction but because of considerations of public policy. The courts have in the past been reluctant to refuse recognition on such grounds as can be seen from cases such as Hack v Hack and Newmarch v Newmarch. Furthermore the speech of Lord Scarman in Quazi v Quazi suggests that he would not favour such a development:

“1.

The trial judge considered that the facts of the case did not justify him in refusing recognition. It was a matter for his discretion….. Even if I might have exercised the discretion differently it would be wrong to interfere; but, in truth, I think he was right.”

We believe that a widespread refusal to recognise foreign decrees on the grounds of public policy would be unfortunate and that the possibility of such a trend emerging adds weight to the case for conferring adequate powers on the court to ensure that recognition of a foreign divorce does not necessarily affect the parties financial position.”

The result was the enacting of Part III of the 1984 Act. This conferred power on the court to grant financial relief after a foreign divorce. Section 13 creates a preliminary leave filter. Section 15 sets out the jurisdictional grounds to mount an application. Section 16 provides a checklist of relevant factors the court must have regard to before ordering financial relief. Thorpe LJ said of this statutory development at para 53 of Golubovich:

“53.

This highly significant statutory power had a fundamental impact on the flow of cases in which refusal of recognition of a foreign divorce was sought.”

In Chaudhry v Chaudhry [1985] FLR 476, the Court of Appeal considered whether to recognise a Pakistani divorce decree in circumstances where the husband went to Kashmir to obtain the divorce and thereby deprive the wife of ancillary relief under English law. The court said:

“… [if] the only reason for the husband’s going to Kashmir for his divorce was to obtain the collateral advantage of preventing the wife from obtaining financial relief to which she would be entitled under an English divorce, then in my judgment, the recognition of such a divorce would be manifestly contrary to public policy. (I note, in passing, that because of the recent change in the law, it would not now be possible for the husband to obtain such a collateral advantage, even without recourse to the doctrine of public policy.”

At para 55 of Golubovich, Thorpe LJ cited the judgment of the Scottish court in Tahir v Tahir (1993) SLT 194. Lord Sutherland observed:

“What I have to look at is the decree which was pronounced in Pakistan. It would be contrary to public policy to recognise it, according to Choudhary, if both the motive and the effect were to deprive the pursuer of her rights in Scotland. That however is not the position because her rights are preserved under section 28 of the 1984 Act. There can therefore, in my view, be no public policy objection to written recognition of this divorce based on deprivation of the pursuer’s financial rights. As I understood the submission made to me, it was only on the basis that she would be deprived of such rights that it was argued that there was a public policy objection to recognition.”

Section 28 of the MFPA 1984 sets out the “Circumstances in which a Scottish court may entertain application for financial provision” following an overseas divorce. Turning back to Thorpe LJ’s conclusions in Golubovich, he considered there to be no “procedural deficiencies” in the Moscow proceedings (para 71). He said that to refuse recognition of the Russian decree would “disregard our obligation to respect the function of that court” (para 74). He then concluded at para 77:

“The recognition of the Moscow decree does not deprive the wife of her claims to financial relief in this jurisdiction. Plainly, given the history, the grant of leave under section 13 of Part III would be a foregone conclusion. The court’s jurisdiction is not dependent on the wife’s presence. Her application is well founded under section 15(1)(b) and or (c). Some of the provisions of section 16(2) would need to be carefully thought through. The wife clearly has a right of application in Moscow.”

One sees how weight is granted to our obligation to the foreign court, no doubt through principles of comity, mutuality and reciprocity. It was significant to the Court of Appeal that recognition of the Russian court order did not deprive the wife of her claims to ancillary relief in this country.

It repays examining the provisions of section 12 of the MFPA 1984. It provides as material:

“12 Applications for financial relief after overseas divorce etc.

(1)

Where—

(a)

a marriage has been dissolved or annulled, or the parties to a marriage have been legally separated, by means of judicial or other proceedings in an overseas country, and

(b)

the divorce, annulment or legal separation is entitled to be recognised as valid in England and Wales, either party to the marriage may apply to the court in the manner prescribed by rules of court for an order for financial relief under this Part of this Act.” (emphasis provided)

The court asked the defendant’s counsel, on this issue in the able hands of Ms Perrins, whether Ms Timokhina could have filed Part III proceedings. The court was obliged to ask the question three times before there was an answer. I emphasise that this is not a criticism of Ms Perrins, but illustrates a core difficulty the defendant faces in this part of her case. On the third enquiry, the court was told that “it may have been possible for Ms Timokhina to have made a Part III application.” This must be the right answer. Section 12 makes that much plain. Accordingly, it seems to me that Ms Timokhina had every opportunity to file Part III proceedings. She failed to do so without good or convincing reason.

The availability of Part III ancillary relief is a powerful factor in deciding whether a foreign judgment should or should not be recognised on public policy grounds. The old concern that one party would be deprived of ancillary relief that the party would otherwise be entitled to has been largely swept away by the statutory protections under Part III that an otherwise disadvantaged spouse can apply for. In this case, for reasons known to her, not shared with the court, Ms Timokhina has failed to apply for the very ancillary relief she accepts has been open to her to apply for and insists Mr Timokhin should initiate.

In Lachaux v Lachaux [2019] 4 WLR 86, the Court of Appeal more recently considered arguments about non-recognition of foreign divorce decrees on grounds of public policy under section 51(3) of Family Law Act 1986 (“the FLA 1986”). Moylan LJ said at para 70 that the 1986 Act was “a comprehensive code for determining when an overseas divorce (other than a divorce obtained in an EU member state) is to be recognised and when the court may refuse recognition of a divorce otherwise entitled to recognition.” He continued at para 176 that “Public policy has a high threshold as is made clear by the authorities referred to above”. One of these was El Fadl v El Fadl [2000] 1 FLR 175 (Fam) (“El Fadl”), where Hughes J declined to refuse recognition of a divorce (talaq followed by court registration) which the husband had obtained in Lebanon. Hughes J gave a number of other reasons for deciding that recognition should not be refused including that there was “no evidence of forum shopping”. Further, where the “real issue is finance” (191), recognition would not prevent the wife from seeking leave to make a financial claim under the 1984 Act. In his view the discretion to refuse on the ground of public policy was a discretion “which should be exercised sparingly” (189).

The divorce in El Fadl was valid by the personal law of both parties. Hughes J noted that it was a polygamous marriage, valid under Lebanese law. Under that procedure a husband, although not a wife, could divorce his spouse by unilateral act which involved him pronouncing a repudiation of her by appropriate words such as “I divorce you”. The wife’s consent or objection was irrelevant and she did not need to be present. In accordance with Lebanese law, the husband pronounced the talaq formally in front of two witnesses and it was registered before the Sharia court.

Hughes J concluded that however much a unilateral divorce without notice might offend English sensibilities, comity between nations and respect of belief systems required that one country should accept the conscientiously held but very different standards of another where they were applied to those who were domiciled in it. Where, as in the present case, the talaq was the prevailing form of divorce in the country of both parties, and it had been validly executed there so that the marriage was at an end in the country where it was contracted and to which both parties belonged, and where there was no evidence of forum shopping, there was no basis for the court refusing to recognise the divorce. If one thinks of the instant case, it may be that the Russian approach to PNAs applies “very different standards”, as Hughes J puts it. But any financial disadvantage Ms Timokhina claims to suffer is capable of being addressed by the English family courts through a Part III application.

Naturally, one must be wary of reading across indiscriminately between non-recognition of judgments based on nuptial agreements and non-recognition of foreign divorce decrees. The statutory test under section 51(3)(c) requires that the recognition of the foreign divorce be “manifestly contrary to public policy”. However, section 51(3)(c) supports a general approach that to refuse to recognise that which would otherwise be recognised on public policy grounds involves a “high threshold”. Once more, I emphasise that I do not regard the threshold as so high as to unattainable.

Conclusion: Radmacher/public policy

Radmacher

I reject the submission that Radmacher creates a “mandatory” rule or principle of general application beyond ancillary relief proceedings. Radmacher stipulates how the English court should approach a foreign nuptial agreement when before the court is an application for such relief. I find nothing in the judgment that extends or projects the Radmacher approach beyond the determination of ancillary relief applications before the family courts into the King’s Bench Division in judgment enforcement proceedings. Radmacher does not operate as an ever-present yardstick that applies when any claim includes a foreign PNA, applicable in every circumstance, in every Division and in all seasons.

The defendant says of reductions of financial provision to her ordered by the Russian courts, that the suggestion they are consistent with Radmacher is the stuff of “Cloud Cuckoo Land”. In similar vein, the defendant argues that the Russian court could never have reached certain decisions if it had applied “Radmacher principles”. Yet at other times, the defendant has accepted that the Russian court was not obliged to apply Radmacher. I do not see how it could possibly be required to do so. Equally, the defendant complains of the reductions of the payment under clause 5.2 that if they were due to Ms Timokhina’s conduct, that would “represent another breach of a core principle of English matrimonial law.” This is too stark a submission. Under section 25 of the MCA 1973, it is open to a court to adjust financial provision due to “gross and obvious” misconduct. The Russian courts reduced the lump sum in two different decisions. First by £100,000 by the VCC. Then by another £400,000 by the LRC. The courts justified this contractual amendment because of Ms Timokhina’s breach of clause 6.2 of the PNA and its prohibition against distributing harmful data. The Russian courts determined that she distributed harmful data about Mr Timokhin maliciously (with “premeditation”) and with an intention to do him harm. It is a matter for the Russian court what weight it placed on that conduct and how it should reflect the severity of that breach, as it judges it, in the amendment of the contract. That the English court would have made a different order is not a sound basis of support for a public policy defence.

I agree with the defendant that Radmacher left open the question of whether a PNA should be regarded as a contract (the “red herring” point as the Supreme Court said). However, the enforcement sought is not the enforcement of a PNA as a contract, but the recognition under our common law of Russian judgments and then their enforcement. That is a different matter.

As to need, the question that arises echoes the predicament the Supreme Court envisaged. Judges at first instance in the High Court and the Court of Appeal have considered this question following Radmacher. An early formulation was provided by Mostyn J in Kremen v Agrest (Financial Remedy: Non-Disclosure: Postnuptial Agreement) [2012] 2 FLR 414. He said at para 72⁠(iv)(c) that “need may be interpreted as being that minimum amount required to keep a spouse from destitution.” The Court of Appeal examined the question in Brack v Brack [2019] 2 FLR 234. King LJ said at para 103 that the court should “retain a degree of latitude when it comes to deciding on the level of generosity or frugality which should appropriately be brought to the assessment of those needs.” The defendant argues that if the PNA were subject to scrutiny on a Radmacher analysis, it could not possibly be valid, being so asymmetrically and unfairly skewed against the interests of Ms Timokhina. I must emphasise that it is no part of this court’s task in these proceedings to make a Radmacher-type adjudication and decide whether the PNA should be granted little or no weight in asset allocation. Instead, I am being asked rule on the question of principle about public policy. That is whether a foreign PNA that has been ruled on by a foreign court (and in Dicey Rule 46 terms “final and conclusive”), and which lies behind the judgments sought to be recognised and enforced in this jurisdiction, should undergo Radmacher fairness scrutiny before enforcement. That is a significantly different question. My plain answer is no.

Therefore, the Radmacher “mandatory rule” (as styled by the defendant) ground for non-recognition of the Russian judgments fails. There is no such rule that applies to these proceedings.

Public policy

The claimant accepts that the fact Ms Timokhina brought proceedings in Russia does not “shut her out” from contesting enforcement in this jurisdiction. However, the court accepts the submission that the fact Ms Timokhina has initiated proceedings in Russia and invoked its jurisdiction is a relevant factor which cuts across her opposition of enforcement. There is support for this approach in Briggs 2025 at 14.35:

“Returning to a point made earlier, about the need to balance competing public policies within English law, it is also arguable that English public policy works differently according to whether the court was one to whose jurisdiction the parties had agreed in advance to submit. As there is a strong, legislated, public policy in favour of giving effect to jurisdiction (and arbitration) agreements, it would not be unprincipled for a court, called upon to find that recognition of a judgment would be contrary to English public policy, to say that a countervailing public policy of upholding jurisdiction agreements overrides the objection raised. It all depends on how the balance is struck, and that will be a fact- and case-sensitive issue.”

While Ms Timokhina’s decision to litigate the PNA in Russia does not automatically prohibit her from contesting enforcement, it is to my mind a material factor in striking the overall balance. It would, I judge, be absurd to be blind to how proceedings in Russia progressed and Ms Timokhina’s use of the Russian jurisdiction. Pulling the threads of the wider analysis of public policy together, the defendant submits that “the impact of the foreign decree of divorce on the financial rights of the weaker spouse will be a relevant consideration and may be a reason to refuse to recognise the divorce”. The foregoing analysis reveals how this is only partly true. The analysis provided of the law and its development indicates that the position is more nuanced than the defendant submits. I note that in its chapter on grounds for refusing recognition of foreign divorces (et cetera), Dicey notes under Rule 102:

“19-154 It was thought at one time that the public policy ground might be successfully invoked where a husband ordinarily resident in England obtained a divorce abroad (perhaps a talak, where the wife would have few if any procedural rights) in an attempt to avoid financial or other consequences attaching to a divorce obtained in England. It is now recognised that the enactment of Pt III of the Matrimonial and Family Proceedings Act 1984 prevents there being any public policy issue so far as financial consequences are concerned.”

As heralded, the non-recognition of the divorce decree is different from the non-recognition of a judgment based on foreign court orders about a PNA. However, in both instances, a spouse claiming a need to alleviate the financial orders has a route under Part III of the 1984 Act. Therefore, public policy defences to recognition and enforcement of foreign divorce decrees based on lack of financial provision generally do not survive the creation of Part III ancillary relief. Indeed, it was the gap in the protection of spouses following foreign divorces that prompted the creation of the statutory scheme. There may be exceptions, as Thorpe LJ noted in Golubovich, where the foreign decree was obtained in order to strip the other spouse of ancillary relief. It is difficult to equate that with the instant case. Ms Timokhina filed applications about the PNA in Russia in November and December 2019, thus Mr Timokhin cannot credibly be accused of forum shopping. As to effect, Ms Timokhina recognises that an application for Part III ancillary relief has been open to her.

I emphasise that I approach the recognition question by applying the common law test of whether the judgment is contrary to English public policy, not whether it is “manifestly” so as under the 1986 Act (and indeed Article 34 of Brussels I). It may be the case – although I underline that I am not conducting a Part III analysis – that the English court under Part III would reach a different order to that reached in Russia. There have not been Part III arguments placed before me about what the appropriate “alleviation” or adjustment in financial provision should be. Rightly so: I am sitting in the King’s Bench Division. That the English court might have decided the PNA differently is not the public policy test. The question is whether the Russian judgments are so contrary to or offend our morals and legal conscience – the public policy of English law – that this court should refuse to recognise and enforce them. The Russian court making decisions about the PNA does not in itself offend public policy. The complaint here is that the outcome is grossly unfair to Ms Timokhina. This begins to sound very much like a merits appeal or an attempt at re-litigation. It must be remembered that it is for Ms Timokhina to make good the public policy defence, and in light of the defence being applied restrictively. She maintains her submission that the Russian judgments are incompatible with our public policy because they did not engage in a Radmacher fairness analysis. However, one sees from cases like El Fadl how the approach of foreign courts making decisions on bases entirely alien to anything that would be tolerated in the country (polygamous marriage; divorce exclusively at the male’s election) may have their judgments recognised nonetheless. Under this defence, the defendant’s prime complaint is that the allegedly unfairly asymmetrical division of assets, including after the further adverse decisions during the Russian appeal process (on clauses 5.1 and 5.2), is so egregious to our legal sensibilities that the debt the Russian courts ruled she owed to Mr Timokhin should not be enforced. Given that Part III ancillary relief has been available to Ms Timokhina, I reject the submission.

Part III of the 1984 Act has been enacted precisely to provide a remedy for a person in Ms Timokhina’s position. If fairness principles were applied by a foreign court, but the outcome left a spouse in need of financial relief, that person could make a Part III application for ancillary relief. If the foreign court failed to consider fairness or any fairness principles we would recognise, and that left the spouse in need of financial relief, that person could also make a Part III application for ancillary relief. In any event, the defendant applied to the Russian court to set aside the PNA. That application was rejected by the VCC decision of 15 July 2020. Under RFC Article 44, the PNA can be set aside if it places one spouse “in an extremely unfavourable position”. The Russian court considered and rejected this as a basis to set aside the PNA. The VCC’s 2020 decision included the following:

“As follows from the marriage contract, Timokhina A.A. in June 2017 received, under the marriage contract, monetary funds in the amount of 3,742,000 pounds sterling in one payment, an apartment of 189.3 square meters and a garage in St. Petersburg, an apartment of 294.4 square meters in London, paintings, design and interior items, a collection of jewellery, and various movable property.

Under these circumstances, the court rejects the plaintiff’s argument that the terms of the marriage contract placed the spouse at an extremely unfavorable position.”

Ms Timokhina asserts in her witness statement filed with this court that Mr Timokhin’s assets far outstrip what she received, claiming it is “circa £100 million”. But there is no adequate evidential support or analysis before this court beyond this. The scale of his assets has not been an issue litigated before me and no determination of it has been sought. The defendant submits that the VCC’s rejection of her “extremely unfavourable position” claim is not “remotely equivalent” to a Radmacher-type analysis. But the Russian state must be entitled to develop and apply its own law on assessing PNAs, and a debt arising from a foreign PNA cannot be impeached solely on the ground that the culture and legal arrangements for such assessment is different. Equally, as Dicey puts it at 14-159, a judgment cannot be impeached because it “otherwise followed a practice different from English law” (Boissière v Brockner (1899) 6 T.L.R. 85; Chantiers de l’Atlantique SA v Gaztransport Technigaz SAS [2011] EWHC 3383 (Comm.)). One must return to the identified grounds of impeachment (defences) enunciated in Dicey.

As to duress, one has the express terms of the PNA. Both spouses attested to clause 6.5 and that “the Parties have no circumstances which compel them to enter into this Contract on the terms highly disadvantageous for them.” The whole tenor and thrust of the PNA is that each party entered into it voluntarily and in the absence of pressure. Yet in her witness statement, the defendant claims that the PNA was signed under duress and seeks to resile from the representations she made in the contract. The Russian court rejected her claims. The issue of duress or voluntariness was first considered by the VCC in its 2020 judgment. In those proceedings, Mr Timokhin is the defendant, and so described by the VCC:

“Under such circumstances, the court cannot agree that the spouse's announcement of his intention to apply to the court with claims for divorce, division of property, determination of the place of residence of children, as well as his performance of this lawful action, can be regarded as a threat to the plaintiff with the aim of forcing her to conclude the disputed marriage contract.

Evidence of the existence of any other real, significant and feasible threats as a result of which the plaintiff was forced to enter into the disputed marriage contract contrary to her wishes, is not presented.

Based on the above, the court agrees with the defendant's arguments regarding the absence of coercion/duress of the plaintiff to enter into the disputed marriage contract, either by the defendant himself or by other persons.

Based on the fact that the facts of coercion/duress of the plaintiff to enter into a

marriage contract through violence and threats have not been confirmed, the plaintiff's arguments about their ongoing nature are also subject to rejection.

Taking into account the above, the court comes to the conclusion that, when concluding the disputed agreement, Timokhina A.A. acted at her own discretion, of her own will and in her own interests, and was free to choose the subject and terms of the agreement. The agreement was signed personally by Timokhina A.A. and certified by a notary.”

Duress is a further basis to set aside a PNA in Russia. Such argument did not succeed. She also made allegations of assault against the defendant. As noted, the allegation is that she was assaulted after the signing of the PNA. It was open to the Russian court to make what it would of such a series of claims. The complaint is that they were “not treated with the seriousness that they deserved and that an English court would afford them.” I have not been asked to determine whether the assault allegations are true or not and this is not an issue in this enforcement application. I am bound to say that I would have grave misgivings if I were invited to remake findings of fact about allegations in Russia in 2017. I am not persuaded that these complaints about the procedure in Russia are valid grounds contributing to a public policy defence to enforcement (I have also considered and rejected this point under the natural justice head).

The defendant submits that the finding of the VCC when concluding that Ms Timokhina’s set aside application was made in bad faith is something that “somewhat make[s] a mockery of the alleged protections” she enjoys under Russian law. However, that was a finding of fact made in Russia in July 2020. This was a finding open to the Russian court and which it was competent to make. To the extent that the defendant seeks to dispute that finding now, such an approach is misconceived. It was open to the VCC to deem the set aside application an abuse of process due to Ms Timokhina’s failure to “declare the existence of obstacles to the execution of the contract”. These are matters for the first instance court in Russia in 2020 to judge. It was seized with the application and was able to assess such evidence (or lack of evidence) before it. This finding of bad faith followed immediately on from the extract of the VCC set out above dealing with duress. The VCC held in 2020:

“By virtue of paragraphs 2 and 5 of Article 166 of the Civil Code of the Russian Federation, a statement on the invalidity of a transaction has no legal significance if the person referring to the invalidity of the transaction acts in bad faith, in particular, if his behavior after the conclusion of the transaction gave grounds for other persons to rely on the validity of the transaction. A party whose behavior indicates its will to maintain the validity of the transaction does not have the right to challenge the transaction on the grounds of which this party knew or should have known when expressing its will.

As follows from the case materials, when concluding the contract and in the process of subsequent legal relations of the parties within the framework of the disputed contract, the plaintiff did not declare the existence of obstacles to the execution of the contract, did not indicate its invalidity on the grounds stated in court. In addition, Timokhina A.A. actively used the property received under the marriage contract, insisted on its validity when considering case No. 2-4463/2018 of the Petrogradskiy District Court of St. Petersburg on the claim of Timokhin A.V. against Timokhina A.A. on the recognition of clause 5.2 of the marriage contract as invalid, where the claims were denied, as well as when considering case No.2-5117/2019 of the Vsevolozhskiy City Court of the Leningrad Region on the claim of Timokhina A.A. to Timokhin A.V. for the recovery of funds under a marriage contract, where the claims of Timokhina A.A. were satisfied.

Thus, the actions of Timokhina A.A. testify to the approval of the transaction, the presence of an expression of will to execute and preserve the force of the marriage contract, which gave the defendant grounds to rely on its validity. A party to a transaction, from whose behavior it is evident the will to preserve the force of a voidable transaction, has no right to challenge this transaction on the basis of which this party knew or should have known when it expressed the will to preserve the transaction.

Taking into account the provisions of Article 10 of the Civil Code of the Russian Federation, the actions of Timokhina A.A., who initially accepted performance under the contract and then filed a claim to challenge it, should be recognized as bad faith. A statement made in any form about the invalidity (voidability, contestability) of the transaction and the application of the consequences of the invalidity of the transaction (a claim filed with the court, the defendant’s objection to the claim, etc.) has no legal significance if the person referring to the invalidity acts in bad faith, in particular, if his behavior after the conclusion of the transaction gave other persons grounds to rely on the validity of the transaction.”

The bad faith finding of fact was one the Russian court was entitled to make using its judgment and discretion. It is difficult to understand how the VCC’s conclusion that Ms Timokhina acted in bad faith in bringing her invalidation claim is a breach of natural or substantial justice. As the VCC noted, Ms Timokhina had “actively used the property” she received under the contract and had insisted on the contract’s validity before the Petrogradskiy District Court in resisting Mr Timokhin’s clause 5.2 claim. This 2020 decision of the VCC was upheld by the Russian Supreme Court on 27 September 2022. As noted by the VCC in 2023 (the first contested judgment), the 2020 VCC was supported by Russia’s highest court:

“By the ruling of the Judicial Board for Civil Cases of the Supreme Court of the Russian Federation dated 27.09.2022, Timokhin A.V.'s cassation appeal against the ruling of the Third Cassation Court of General Jurisdiction dated 12.07.2021 was satisfied, and the ruling of the Third Cassation Court of General Jurisdiction dated 12.07.2021 was cancelled, and the decision of the Vsevolozhsky City Court of the Leningrad Region dated 15.07.2020 and the appeal ruling of the Leningrad Regional Court dated 24.02.2021 were upheld.”

The concept of finality exists in Russia. Part 2 of Article 61 of the CPC stipulates that the circumstances established by an enforceable judgment in an earlier case are binding on the court. These circumstances “shall not be proved again and shall not be challenged in another case involving the same persons” (as the LRC summarised it accurately in February 2021). It is on this basis that later courts relied on the bad faith finding of the VCC in 2020, which had been upheld by the Russian Supreme Court.

Turning to the distribution of assets, given the impeachment test, that the foreign financial provision outcome may be different to ours is not of itself a valid basis for a public policy objection. Recognition of these judgments does not bring the English law “into disrepute”, as the defendant claims. The defendant began her submissions by stating that “public policy underpins financial remedy in matrimonial proceedings”. This echoes the defendant’s written closing submissions that Mr Timokhin seeks to “dismiss the protections offered by our family courts in the context of matrimonial relief proceedings.” These are not matrimonial proceedings. They are not financial relief proceedings. They are civil proceedings brought by Mr Timokhin to recognise and enforce under English common law two Russian judgments. That the debt arises because of judgments of the Russian courts (of which recognition is sought by the English court), while relating to a Russian PNA, fails to convert the proceedings into matrimonial proceedings, nor into an application for ancillary relief, nor the King’s Bench into the Family Division. Further, the fact of these proceedings, nor the enforcement of the Russian judgments, do not extinguish by themselves any subsisting right the defendant has under Part III of the 1984 Act. The conceptual difference in play here was emphasised by the Court of Appeal in Lenkor Energy Trading DMCC v Puri [2021] EWCA Civ 770 (“Lenkor”). Lewison LJ said at para 40:

“40.

First, this is not a question of enforcing a contract. It is a question of enforcing a judgment given by a foreign court of competent jurisdiction. The two are not the same: Omnium de Traitement et de Valorisation SA v Hilmarton Ltd [1999] 2 Ll Rep 222, 224. There are sound justifications for taking a different approach to substantive claims and enforcement claims, reflecting the different role performed by the court in each circumstance: RBRG Trading (UK) Ltd v Sinocore International Co Ltd [2018] EWCA Civ 838 [“RBRG”]; [2018] 1 CLC 874 [26](3). The judgment of a foreign court of competent jurisdiction creates an obligation to pay the judgment sum enforceable in this jurisdiction as a debt, irrespective of the underlying cause of action: Williams v Jones (1845) 13 M & W 628, 633; Adams v Cape Industries plc [1990] Ch 433, 513. It is common ground that the Dubai court was such a court.”

On the distinction point, it repays citing what the Court of Appeal said in RBRG as referred to by Lewison LJ, with the addition of the following subparagraph:

“26

…

(3)

There are sound justifications for taking a different approach to substantive claims and enforcement claims, reflecting the different role performed by the court in each circumstance. This is illustrated by the authorities referred to above and by the following comments of Waller LJ at [36] of his judgment in Westacre:

“…albeit the award is not isolated from the underlying contract, it is relevant that the English court is considering the enforcement of an award, and not the underlying contract...The English court takes cognisance of the fact that the underlying contract, on the facts as they appear from the award and its reasons, does not infringe one of those rules of public policy where the English court would not enforce it whatever its proper law or place of performance. It is entitled to take the view that such domestic public policy considerations as there may be, have been considered by the Arbitral Tribunal. It is legitimate to conclude that there is nothing which offends English public policy if an Arbitral Tribunal enforces a contract which does not offend the domestic public policy under either the proper law of the contract or its curial law, even if English domestic public policy might have taken a different view”.

(4)

It may be that Patel v Mirza has moved the jurisprudence on illegality as a defence to a substantive claim rather closer to the multifactorial approach that has always applied in the context of illegality as a public policy defence to enforcement, but the context and the relevant factors remain different. In particular, as the authorities make clear, there is always a strong public policy in support of enforcement.”

There is no real dispute but that PNAs no longer offend English public policy as a matter of principle. I can accept that the English court may or may not have taken a “different view” of the apportionment of assets. But a different view is not enough to refuse enforcement. The ultimate position is that Ms Timokhina has failed to avail herself of a remedy open to her under the English law through a Part III application. That the English court would entertain such an application is in little doubt as seen in Xanthopoulos v Rakshina [2024] EWCA Civ 84. The Court of Appeal considered an appeal from a decision of the Family Division under Part III of the 1984 Act. The parties lived in England but entered into a Russian post-nuptial agreement and obtained a decree of divorce in Russia. The English court considered the husband’s application for ancillary relief under Part III (paras 19-25). The Russian PNA then underwent detailed Radmacher fairness scrutiny. King LJ, for the Court of Appeal, said that English law “applies to this Part III application and the court has a complete discretion to ignore the agreement if it is unfair” (para 118). There is little doubt that English law would apply to a Radmacher-style examination of the fairness of the nuptial agreement if Ms Timokhina made a Part III application. She has not. I find no basis in authority that Radmacher principles extend beyond such applications in our family courts and provide a valid basis to refuse judgment enforcement under the common law in civil proceedings.

The court asked both parties whether as a matter of record there was any case in which a party with an order or judgment about a PNA in a foreign jurisdiction had made a subsequent Part III application for relief to subject the PNA to the scrutiny of the English court, whether for fairness or any other reason. Neither party brought any decided case to the court’s notice. While not being conclusive, this permits an inference, especially given the diligence of the two counsel teams, that there is none. However, I am mindful that just because something has not previously occurred, does not mean it cannot now happen, or is by the previous legal silence prohibited by that fact. Lord Denning made that point forcefully on several occasions. He said in Packer v Packer [1953] 2 All ER 127, at 129:

“What is the argument on the other side? Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand still whilst the rest of the world goes on; and that will be bad for both.”

In similar vein, the House of Lords said in National Westminster Bank plc v. Spectrum Plus Limited & Ors [2005] UKHL 41, per Lord Nicholls at para 32:

“…judges themselves have a legitimate law-making function. It is a function they have long exercised. In common law countries much of the basic law is still the common law. The common law is judge-made law. For centuries judges have been charged with the responsibility of keeping this law abreast of current social conditions and expectations. That is still the position. Continuing but limited development of the common law in this fashion is an integral part of the constitutional function of the judiciary. Had the judges not discharged this responsibility the common law would be the same now as it was in the reign of King Henry II. It is because of this that ‘the common law is a living system of law, reacting to new events and new ideas, and so capable of providing the citizens of this country with a system of practical justice relevant to the times in which they live’: see Lord Goff of Chieveley in Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349, 377.”

Therefore, the absence of previous supporting authority is not fatal to the defendant’s argument. However, it is curious that if this were indeed the correct position in law, there is no case that says so. Radmacher, while a significant development in our law, is now well over a decade old. In the intervening period, there is no authority for the proposition that before a judgment on a foreign PNA can be enforced, there must be Part III matrimonial proceedings scrutinising the nuptial agreement underlying the foreign judgment. Nor is there any statutory provision to like effect.

The fundamental conceptual error lying at the heart of the defendant’s Radmacher submission can be seen from the written closing submissions when the defendant submits that the absence of “Radmacher-style protection” meant that the impugned decisions “were for this reason alone contrary to English notions of equality, fairness and substantial justice that underlie the approach to ancillary relief proceedings including where there is a PNA” (original emphasis). Against this, the first two sentences of the first paragraph of Radmacher explain the Supreme Court’s focus:

“When a court grants a decree of divorce, nullity of marriage or judicial separation it has the power to order ancillary relief. Ancillary relief governs the financial arrangements between the husband and the wife on the breakdown of their marriage.”

Radmacher is concerned with ancillary relief. These proceedings are not. For reasons provided above, the public policy defence to the enforcement of the Russian judgments has not been established by the defendant. It fails.

The defendant submits that “the abuse of process is obvious and effectively follows from the conclusions in respect of Radmacher/public policy that the Court is invited to reach.” The defendant further submits that Mr Timokhin cannot be permitted to “flout and circumvent the important protections offered in the family division” in respect of PNAs. This is said to be an abuse of process.

In support of this submission, the defendant cited a long line of family authorities which share the same essential precept: English courts will not enforce a contract that is contrary to English policy. They culminate in the defendant’s recitation of the judgment of a court of this division in SAS Institute Inc. v World Programming Limited [2018] EWHC 3452 (Comm), where it was said at para 161:

“To a similar effect is the next case Re Macartney [1921] 1 Ch 522 at pp.527-528 Astbury J held that this passage ‘applies directly to the non-enforceability of foreign judgments founded on contracts contrary to public policy or rights of that character.’”

It will help to cite from Astbury J’s judgment at 527:

“In Rousillon v. Rousillon it was held that “If an agreement contrary to the policy of the English law is entered into in a country by the law of which it is valid, an English Court will not enforce it” and Fry J. said “[counsel] has insisted that, even if the contract was void by the law of England as against public policy, yet, inasmuch as the contract was made in France, it must be good here, because the law of France knows no such principle as that by which unreasonable contracts in restraint of trade are held to be void in this country. It appears to me, however, plain on general principles that this Court will not enforce a contract against the public policy of this country, wherever it may be made. It seems to me almost absurd to suppose that the Courts of this country should enforce a contract which they consider to be against public policy simply because it happens to have been made somewhere else.” That passage applies directly to the non-enforceability of foreign judgments founded on contracts contrary to public policy or rights of that character.”

As vividly put by the defendant, this amounts to the notion that “If you come to England, you have to play by English rules.” This is said to be where the PNA fails: there has been no consideration of fairness to Ms Timokhina at any point in the Russian proceedings. While it is not for this court to definitively adjudicate on the division of matrimonial assets, it is sufficient for the court to recognise that there has been no consideration of fairness in the way we would understand (but I earlier examined Ms Timokhina’s Article 44 “extremely unfavourable position” point rejected by the Russian court). Whatever the appropriate measure of fairness ultimately determined under the appropriate matrimonial proceedings, there is said to be sufficient evidence before this court to refuse enforcement of judgments that are prima facie so ostensibly asymmetrical and following proceedings in which fairness has not been considered. Implicit in the submission is that the Article 44 is not a consideration of fairness. This is difficult to sustain. It is not a Radmacher consideration of fairness, certainly. But if a Russian court is considering whether a spouse has been put in an “extremely unfavourable position”, fairness must be part of the consideration, albeit through Russian eyes.

The defendant submits that the contravention of English policy assumes such magnitude that the enforcement of the PNA amounts to an abuse of process of this court. In Johnson v Gore Wood [2002] 2 AC 1, 22, Lord Bingham approved the dicta of Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 in explaining that the court retains an inherent power

“[to] prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied…”

In Mueen-Uddin v Secretary of State for the Home Department [2024] UKSC 21, Lord Reed said at para 39 that “The primary purpose of the doctrine … is to preserve public confidence in the administration of justice” and added:

“First, the power in question is a power to prevent misuse of the court's procedure. It follows that the power cannot be exercised if the claimant is making proper use of the civil jurisdiction of the court to protect his rights. Secondly, the court's procedure must be being misused in a way which would be "manifestly unfair" to one or more of the parties or would otherwise "bring the administration of justice into disrepute among right-thinking people.”

In JSC VTB Bank v Skurikhin & Ors [2020] EWCA Civ 1337, Phillips LJ said at para 51 that proceedings may be deemed an abuse of process in a wide range of circumstances, including where

“there has been no unlawful conduct, no breach of relevant procedural rules, no collateral attack on a previous decision and no dishonesty or other reprehensible conduct. Indeed, the power exists precisely to prevent the court’s process being abused through the lawful and literal application of the rules, and most likely would not be needed or engaged where a party was acting unlawfully or in breach of procedural rules, where established rules of law or procedural sanctions would usually suffice to protect the court process.”

Therefore, the defendant submits that the proceedings in the King’s Bench are an abuse of process. This submission must be judged against her position in correspondence. In a letter to the claimant’s solicitors dated 2 August 2024, it was said by Ms Broadley of Goodman Ray - still her solicitors - on behalf of the defendant (para 2):

“Secondly, we consider a transfer to the Family Division to consider the matter to be eminently sensible; the Family Division has knowledge and history of the litigation and issues between these parties including relating to the post nuptial agreement. In fact we are bemused by your objection to a transfer. However, the last thing that our client wishes to do is to waste court time or incur unnecessary costs and if the position is that your client, for whatever reason, resists such transfer, then our client is content for the Part 8 Claim to be determined by a judge of the King’s Bench Division to avoid the need for a hearing on the issue. If and to the extent that the case is determined by such a judge and questions arise as to why your client was resistant to a transfer to the Family Division, then we will refer to this letter. We look forward to hearing from you further in this regard.” (emphasis provided)

The defendant’s response when asked about this correspondence is that it is “far from conniving” with the claimant. It is the opposite: a warning that he takes the Part 8 course at his own risk. I am not convinced by that answer. It is puzzling that the defendant could have been “content” for the Part 8 claim to be determined by a judge of this division if such a course were an abuse of process.

I judge that the abuse of process defence is misconceived. It fails.

The defendant submits that the abuse of process submission “follows from” the Radmacher objection. However, the court has reached conclusions on Radmacher specifically and the public policy defence generally adverse to the defendant.

It is unclear how and in what way if these two bases to oppose enforcement fail, a distinct and freestanding abuse of process argument rises independently of them. No such basis was identified to the court. The abuse of process objection fails and the Radmacher-based public policy defence fails. Therefore, the defences under Part 2 fail.

For completeness’ sake, I mention three unpursued objections to enforcement.

First, the defendant opened her case by submitting that Mr Timokhin has brought proceedings pursuant to Schedule 1 of the Children Act 1989, which are ongoing, and seeks “inter alia an order that the Hampstead property be transferred back into the parties’ joint names and managed by [him]”. These proceedings were subject to a stay, pending the conclusion of the Russian litigation about the PNA. Therefore, the stay has automatically come to an end now that the Russian proceedings have ended. To that extent, the Schedule 1 proceedings are reactivated, but nothing more has happened.

In oral closing submissions, the defendant said nothing about the Schedule 1 proceedings, following a silence about the point in a closely argued 53-page closing skeleton argument. It no longer appears to be relied on as a ground of impeachment. The claimant is correct to observe that “it appears to have been dropped” and is “without merit”. I judge that the Schedule 1 point adds nothing to the defendant’s case.

Second, in opening, the defendant alleged that Mr Timokhin was seeking to profit from his illegality in abducting his son from Russia. The submission was that it would be contrary to policy and natural justice for him, lacking “clean hands”, to profit from his wrongdoing. Nothing was said about this in closing on behalf of Ms Timokhina. There is force in the claimant’s submission that the point has been “unceremoniously dropped” without explanation. In any event, I judge that the point is misconceived. It adds nothing to Ms Timokhina’s case. It was the correct course not to pursue it.

Third, a similar fate met the submission under A1P1 of the ECHR, originally included in Ms Timokhina’s amended defence. It has not been developed or pursued. Once more, it is inherently misconceived. It was right to strike it through. It was right to cast it aside.

I return to the list of issues the parties sought determination of by the court and provide my answers:

I now summarise in short order the prime conclusions of the court expressed under the broad division adopted in this judgment:

Therefore, the defences to enforcement of the judgments of the VCC dated 24 January 2023 and the LRC dated 11 October 2023 fail.

As the Court of Appeal noted in Lenkor, the claimant is not seeking to enforce a contract, but seeks recognition of judgments of a foreign court of competent jurisdiction and then their enforcement because of the English court recognition judgment (the debt being created under Russian law). There is no question but that the judgments meet the initial requirements of Dicey Rules 46 and 51, being final and conclusive on the merits. The focus moved on to the rules on impeachability. The burden of this trial has been a focus on defences to enforcement rendering the judgments impeachable. As to that vital question, there has not been any perverse refusal to apply Russian law. Instead, the VCC and LRC have reached decisions disadvantageous to Ms Timokhina with which she profoundly disagrees. Ms Timokhina makes the claim that she suffered from “a wholesale failure on the part of the Russian courts to provide [her] with a judicial process which was in accordance with Russia’s own Civil Procedure requirements”. Point by point, her diffuse array of criticisms has been shown to be unfounded and misconceived. I find no natural justice, substantial justice or public policy reasons not to enforce the judgments or impeach them. The judgments of the VCC and LRC from 2023 have not been impeached in a way that is valid under English law. Accordingly, they should be recognised, and following recognition by the English court, enforced under English law.

In opening her case, the defendant submitted that the function of this court is not to “to satisfy a party’s lust for litigation or retribution.” I endorse the observation. Regrettably, these proceedings, both here and in Russia, have been mired in both.

As explained at the outset of this judgment, either the contested Russian judgments should be recognised and enforced or they should not. They should.