Thursfield v Thursfield (Re: Legal & Living Expenses)

Where a freezing order permits legal and living expenses, the court may defer access to a specified asset if other assets are available and their ownership or amenability to enforcement remains uncertain. The court must have sufficient information to decide whether the specified asset should be first in line for expenses. It may vary the order so that the asset remains unavailable pending further order, while permitting either party to apply for a variation when the position has been clarified.

The defendant sought permission to meet legal and living expenses from a UK pension fund. The original freezing order contained the usual exception for such expenses, but the pension monies had been frozen following representations by the claimant’s solicitors.

It had subsequently become known that other assets were available to the defendant, although their basis, ownership and amenability to enforcement were unclear. The central question was whether the pension fund should be available immediately, and whether it should be the defendant’s first source of funding.

1. The court varied the freezing order so that the exception for legal and living expenses did not permit payments from the UK pension fund. The fund was unavailable for those purposes until further order.
2. The original expenses exception had been made when the court did not know that other assets might be available. The subsequent information materially altered the basis on which the exception had to be considered.
3. The court was not presently able to determine whether the pension fund should be first in line for payment. Other sources of funding existed, but their basis and susceptibility to execution processes had not been established.
4. Permission to apply was given to both parties in relation to the relevant paragraph. The defendant could seek a variation, provided that he gave the court full information explaining the difficulty and why he should have recourse to the pension fund first.