Hayes v Hayes
| Jurisdiction | England & Wales |
| Judge | Mr Justice Henry Carr |
| Judgment Date | 03 April 2019 |
| Neutral Citation | [2019] EWHC 1341 (Ch) |
| Docket Number | No. CH-2018-000185 |
| Court | Chancery Division |
| Date | 03 April 2019 |
[2019] EWHC 1341 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
CHANCERY DIVISION
Royal Courts of Justice
7 Rolls Buildings
Fetter Lane
London
EC4A 1NL
Mr. Justice Henry Carr
No. CH-2018-000185
THE APPELLANT appeared in Person and was represented by Mr Butters a McKenzie Friend.
Mr. G. Sims appeared on behalf of the Respondent.
History of proceedings
This is an appeal against an order of Deputy ICC Judge Middleton made on 21 June 2018. The order of Deputy Judge Middleton set aside an order of Deputy Registrar Jones which was made on 17 November 2017 on the application of the appellant, Mrs. Hayes. The 17 November 2017 order stayed the enforcement of an order for costs made some four years earlier on 17 December 2013 by Deputy Registrar Jones, pending determination of case number 6CB00392 in the Central London County Court (the “harassment claim”).
The order for costs was in the amount of £35,959.91 and was made in respect of a failed bankruptcy petition by Mrs. Hayes against the respondent, Mr. Hayes. Mr. Hayes applied to set Deputy Registrar Jones' order aside, the initial hearing was adjourned, and the application was heard on 23 April 2018 by Judge Middleton. As well as setting aside the order, Judge Middleton dismissed Mrs. Hayes' application for a stay of enforcement of those costs and ordered Mrs. Hayes to pay Mr. Hayes' costs of the application, including £5,000 on account.
This matter arises from a long-standing and extremely regrettable series of disputes originating in the divorce of Mrs. and Mrs. Hayes. The relevant starting point is March 2005, when Mrs. Hayes made Mr. Hayes bankrupt in respect of a debt of around £35,000. However, the debt was not provable at the time because it related to family proceedings and it survived the bankruptcy which was discharged in March 2006.
In November 2005, Mr. Hayes started proceedings for harassment against Mrs. Hayes and her partner, Mr. Butters, under the Protection from Harassment Act 1997. Both Mrs. Hayes, who was representing herself, and Mr. Butters who appeared as a McKenzie Friend, addressed me on this oral application.
Mr. Hayes' claim was amended in 2011 to plead further harassment up to 2011. There was also a counterclaim against Mr. Hayes, again for harassment. The trial of the harassment proceedings was fixed for the end of January 2019 in the Central London County Court with quantum to be fixed thereafter. It has now been heard and judgment is imminent.
Mrs. Hayes presented a second bankruptcy petition in 2012 on the basis of the same debt, which now amounted to £52,000 with interest. In June 2012, Mr. Hayes filed a schedule of loss in the harassment proceedings in an amount very significantly in excess of the petition debt. An attempt to strike out elements of the schedule failed, but the bankruptcy petition was not withdrawn. In May 2013, Mrs. Hayes applied in the harassment claim to plead that Mr. Hayes' claim was fraudulently exaggerated. This application has now been deferred until after determination of liability.
The second bankruptcy petition was dismissed on 17 December 2013 by Deputy Registrar Jones on the basis that Mr. Hayes had a claim in the harassment case, exceeding the sum claimed by Mrs. Hayes, about which there was a genuine and substantial dispute. Costs were ordered against Mrs. Hayes on a standard basis and it is this costs order that is the subject of the stay application against the rejection of which Mrs. Hayes seeks permission to appeal. I should add that the debt, the subject of the bankruptcy petition, was discharged in 2016.
Mrs. Hayes appealed Registrar Jones' decision, dismissing the second bankruptcy petition. That appeal was dismissed by Nugee J who ordered Mrs. Hayes to pay the costs of the appeal as well as confirming the previous costs order. Nugee J also subsequently decided, on the application of Mr. Hayes' trustee in bankruptcy in the first bankruptcy, Steven Grant, that Mr. Hayes had valid causes of action in the harassment claim, rather than the whole claim being vested in the trustee, and refused to strike it out as an abuse of process.
Mrs. Hayes made an application on 10 July 2017 in which she sought to set aside the 17 December 2013 costs order. This was heard by Deputy ICC Judge Kyriakides on 23 August 2017, who adjourned it with liberty to restore after final resolution of the County Court claim. The stay application was then made in November 2017.
In the decision appealed against, the Judge refused to set aside the order of Deputy Registrar Jones on procedural grounds and considered it on the merits. He approached the case on the basis that there was an outstanding application to set the costs order aside, on which no decision had been reached. As he understood Mrs. Hayes' arguments, she was saying that she would suffer prejudice if she paid Mr. Hayes, who is said to now be impecunious and living on benefits. If the set aside application was ultimately successful repayment would be problematic, because of Mr Hayes' financial position.
In the context of long-running litigation that was likely to continue for a further lengthy period, the Judge was not satisfied that it was appropriate to order a stay even if there was a risk of failure to repay in the event that the set aside application succeeded.
Since the application before Judge Middleton, Mr. Hayes' solicitor has indicated that if the...
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