Hayes v Hayes

On an appeal concerning enforcement of a costs order, the court may consider material changes in circumstances occurring after the decision under appeal. A stay sought until final resolution of related proceedings may be inappropriate if that resolution is distant, but a shorter protective stay may require separate consideration. Where an undertaking prevents substantive enforcement causing potentially irreparable harm, the appropriate course may be to adjourn the appeal until the related proceedings determine the parties’ financial positions.

Mrs Hayes appealed against an order setting aside an earlier stay of enforcement of a costs order arising from unsuccessful bankruptcy proceedings. The costs order was being enforced while related harassment proceedings between the parties remained unresolved. By the time of the appeal, liability in those proceedings had been tried, judgment was imminent, and Mr Hayes had undertaken not to seek substantive enforcement, including a substantive bankruptcy order or enforced sale of Mrs Hayes’s home, until the related proceedings had reached the specified stage.

The central issue was whether the appeal should be dismissed or whether the changed circumstances justified protective relief pending the outcome of the harassment proceedings.

1. The appeal was adjourned until after determination of the order consequent upon judgment on liability in the harassment proceedings.
2. The allegations of fraud had not been proved and did not cause the harassment claim to fall away. They did not justify reopening the bankruptcy proceedings at this stage. The question of unpaid court fees was irrelevant to the assessed costs order.
3. The court accepted that the judge below had a wide margin of discretion and that the grounds previously considered had no reasonable prospect of success. However, the judge had considered a stay lasting until final resolution of the related proceedings, including quantum and any appeals. He had not considered whether a much shorter stay until determination of liability would be just.
4. The subsequent conclusion of the liability trial created a material potential change in circumstances. If Mr Hayes succeeded, Mrs Hayes’s costs liability might increase substantially. If he failed, a costs order in her favour might substantially reduce the amount owed. It would be unfair for her to face bankruptcy or forced sale of her home before that issue was determined.
5. Even a short stay was unnecessary because Mr Hayes undertook not to seek any substantive enforcement order until determination of liability and any consequential order. The undertaking did not prevent procedural directions or continuation of an interim enforcement order, but prevented substantive bankruptcy or forced sale. If Mrs Hayes failed in the harassment proceedings, or obtained no significant costs order, the appeal would be dismissed. If she succeeded and obtained a substantive costs order, the position would require further review.

• High Court (Chancery Division): Deputy ICC Judge Middleton set aside an earlier stay of enforcement and dismissed the application for a stay, ordering Mrs Hayes to pay costs.
• High Court (Chancery Division): The appeal was adjourned pending determination of the order consequent upon judgment on liability in the related harassment proceedings.