Joy v Joy

When deciding whether to continue an interim stay pending permission to appeal, the court should focus on the steps that best enable the order under challenge to take effect if the appeal fails.

The court should avoid an order that makes it more difficult, or potentially impossible, to overcome an intervening foreign order affecting the subject matter. It may act without deciding the validity of that foreign order where those questions belong to the foreign court. If lifting the stay causes no serious prejudice and better protects enforcement, the stay may be lifted subject to the foreign order being removed.

In ancillary relief proceedings, the High Court ordered the husband to deliver a vintage Bentley motor car from France to the wife's agent in England, where it would be stored pending further orders, including costs orders. The husband sought a stay and permission to appeal. A stay was granted pending an expedited rolled-up hearing, but delay meant that the family proceedings would be determined first.

Meanwhile, the New Huerto Trust began proceedings in Aix-en-Provence to recover a substantial debt, and the French court made a saisie conservatoire over the car. The issue was whether the English stay should continue in light of the foreign order, enforcement risks and the possible prejudice to the parties.

1. The application concerned the continuation of an interim stay pending the determination of the husband's permission application and any appeal. The court did not determine the merits of the jurisdictional challenge to the High Court's order.
2. The proper focus was what steps would best enable the High Court's delivery-up order to be given effect if the appeal failed. The court should not maintain an order which made it more difficult, or perhaps impossible, for the car to be freed from the unexpected French order. This consideration applied even though the court could not determine whether the French saisie conservatoire was justified or should be set aside.
3. The decision involved assessing where the balance of convenience and risk lay. Maintaining the stay could hinder the wife's attempt to secure removal of the French order and could leave the car exposed to enforcement difficulties. By contrast, lifting the stay and placing the car under the control of the English court would cause no serious prejudice to the husband or other interested parties.
4. The stay was therefore lifted. The High Court's order was to take effect subject to any order by the French court removing the saisie conservatoire.

• Court of Appeal (Civil Division): In [2014] EWCA Civ 520, Lord Justice Patten lifted the stay pending the permission application and any appeal, subject to removal of the French order. The underlying appeal was not determined at this hearing.
• High Court Family Division: Sir Peter Singer ordered delivery up of the Bentley on 5 March in ongoing ancillary relief proceedings. The husband challenged that order on jurisdictional grounds.