Kicinki v Pardi [2021] EWHC 499 (Fam) Thwaite jurisdiction - executory order - revisiting a final financial order - giving indemnity on behalf of non-parties.

  1. 1. Case alert, case alert ! All that these short articles can do is alert you to a topic in a case.  A full exploration cannot be undertaken, and a precis can distort and omit.  So this article is written without liability, and without guarantee of the authors sanity … but read on !
  1. Revisiting a final financial order can be done by the following routes:-
  • Conventional appeal
  • Variation of maintenance and instalment lump sum orders
  • Barder events
  • Fraud or mistake
  • Material non fraudulent non disclosure
  • Undertakings (Birch)
  • Barrell (1973) jurisdiction (ie post judgement, but pre sealing of the order)
  • Under Thwaite jurisdiction (Thwaite 1981)
  1. Thwaite jurisdiction can be distilled as follows:-
  • The order remains executory, in those circumstances a  court may revisit, refuse to enforce, vary or set it aside on grounds that the originating application has not yet been dismissed.  (An executory order is one that remains to be carried out).
  • There has been a significant change in circumstance (not such a high test as Barder)
  • Is the variation sought equitable?
  • Has a party frustrated the implementation of the order and financial damage been caused by the frustrating party?
  • The courts approach should be cautious and conservative
  • Any variation should reflect the underlying intention of the original order
  • The application/hearing is not appellate in character
  • The application probably made by part 18
  1. The Kicinki facts need not be tediously aired to the full.   Prior to the final resolution of proceedings between H & W, H’s aunt and uncle issued proceedings against W for the return of 8m euros which W claimed had been gifted to her by them.  The financial proceedings between H & W had been settled by a Rose agreement being entered into, one of the terms of which was that H agreed inter alia, that his aunt and uncle would not take/continue proceedings against W. 
  1. Can H bind his aunt and uncle you may be thinking, well read on …

Subsequently W sought an extension of that indemnity by including an indemnity for her lawyers, the indemnity deed between W and the aunt and uncle having not been signed. 

Her application was refused at first instance, but allowed on appeal.

  1. The court held:-

W had bargained for a clean break which had not been finalised. It was not part of the Thwaite test that the change of circumstances had not been wholly unforeseen. H had been in a position of authority having spoken clearly to the aunt and uncle as to what he was agreeing too, and H had a closely entwined financial relationship with his aunt and uncle. It was therefore inequitable to leave the wife exposed to a contingent liability.

  1. In summary, where the order remains executory, and quantifiable financial damage has been done by virtue of a party frustrating implementation of the order then keep Thwaite in mind.  Kicinki reviews previous cases on this topic, which I did not want to laboriously include in this article !