Hayes v Hayes

MR JUSTICE NUGEE: This is an appeal from an order of Mr Registrar Jones dated 17 December 2013 in which he dismissed a bankruptcy petition and ordered the petitioner to pay the respondent’s costs. The petitioner is Mrs Carol Hayes (who I will call Mrs Hayes); the respondent is her ex-husband, Mr Timothy Hayes (who I will call Mr Hayes. Mr Registrar Jones refused permission to appeal, but permission was granted by Birss J on 24 February 2014.

Mr and Mrs Hayes were divorced a long time ago. I do not think I have the exact date, but a consent order dealing with ancillary relief was apparently made in 1991. Unfortunately, they have been embroiled in numerous disputes since then. It is not necessary, for the purpose of this appeal, to set out the detail of these disputes or give more than a very selective summary of the history of the litigation between them.

The petition debt is based on an order made in the Principal Registry of the Family Division by District Judge Waller on 2 August 2000 ordering Mr Hayes to pay Mrs Hayes a sum of £35,721.19, as being the amount of taxed costs payable under a previous order, itself apparently dating back to March 1995 and arising out of an unsuccessful appeal in family proceedings by Mr Hayes. The petition debt is based on that costs order together with six years’ interest at the rate prescribed by the Judgment Act amounting together to £52,867.36. The petition debt itself is unsurprisingly not disputed.

Mr Hayes opposed the making of the bankruptcy order on the basis, among other things, that he has a crossclaim against Mrs Hayes which exceeded the petition debt. That crossclaim is a claim for damages under the Protection from Harassment Act 1997 which by section 1 provides that “a person must not pursue a course of conduct which amounts to harassment of another and which he knows or ought to know amounts to harassment of the other,” and by section 3 creates civil remedies for breach of that prohibition including, by section 3(2), a claim for damages for, among other things, any anxiety caused by the harassment and any financial loss resulting from that harassment. Such a claim has been brought by Mr Hayes against Mrs Hayes and her partner, Mr Graham Butters, in the Watford County Court. That claim alleges that since February 2003, both defendants have maintained “an unrelenting campaign against the claimant and also against Margaret Hayes, his current wife.” It says the common theme throughout has been the defendant’s repeated allegations that the claimant has hidden monies in the order of £750,000 to £1 million abroad, a “pot of gold,” which, if found, would not only be used to pay the costs debt, but also form a basis for setting aside the 1999 matrimonial consent order with a view to seeking an increased settlement.

That claim was brought in 2005 and has not yet come to trial. Two further matters should be mentioned by way of introduction: Firstly, in 2005, Mrs Hayes relied on the same debt to petition for Mr Hayes’ bankruptcy and he was indeed made bankrupt on that petition on 23 March 2005. He was discharged from that bankruptcy on 27 March 2006. The debt was, however, at the time, not a provable debt with the result that Mr Hayes has not been discharged from that debt. Secondly, Mrs Hayes served a statutory demand on 22 January 2010 and Mr Hayes applied to set it aside relying, among other things, on the crossclaim in the Watford County Court. That application came before Mrs Register Derrett on 29 July 2011. At that stage, the only damages which it was suggested that Mr Hayes might recover in the Watford proceedings were damages for injury to his feelings and it was not suggested that he would recover more than £25,000. The Registrar dismissed his application on the basis that even if Mr Hayes was awarded such a sum it was far below the judgment debt and that a second crossclaim on which he relied in relation to the costs of that action could not be taken into account for these purposes.

By the time the petition came on for hearing before Mr Registrar Jones, however, matters had radically changed. The Watford proceedings were, by then, proceeding on the basis of there being a trial on liability alone in the first instance, but in May 2012, the Watford County Court ordered Mr Hayes to serve a schedule of loss. Mr Hayes consulted counsel, a Mr Terence Vaughan, and he settled such a schedule detailing losses amounting to over £1 million, almost wholly for loss of earnings. In a nutshell, Mr Hayes’ case is that he was, until 2003, deriving an income from a successful software business, but that as a result of the harassment of which he complains that income ceased in 2003, and attempts by him to obtain further employment or to develop software products were unsuccessful. This is also said to have been caused by the harassment. The schedule of loss makes it clear that he attributes these losses, not only to the harassment alleged against Mrs Hayes and Mr Butters, but also that which he alleges against a Mr Willoughby, an ex-employee of his business, against whom he has taken separate proceedings for harassment in the Cambridge County Court. Those proceedings have ultimately proved successful for him in that Mr Hayes established at trial that Mr Willoughby had engaged in a campaign of harassment against him, and after appeals to the Court of Appeal and the Supreme Court, that campaign has been held to be unlawful.

With that interruption I can come to the issues. There is no dispute as to the general practice of the Bankruptcy Court which is that a bankruptcy order will not be made if the debtor has a crossclaim against the creditor which exceeds the petition debt and if there is a genuine and substantial dispute as to that crossclaim. The practice in the Companies Court was set out in Re Bayoil SA [1999] 1 WLR 147 which was subsequently applied by Rimer J in Re a Debtor (No. 87 of 1999) [2000] BPIR 589 to the similar position in bankruptcy. He said at page 592:

“I regard the most helpful authority as being in Re Bayoil. The case was concerned with the principles as to when a cross-demand by a company will justify the dismissal of a winding up petition based on an undisputed debt. That is, of course, not this case, but I consider that those principles do, by way of analogy, also provide relevant guidance as to the circumstances in which the court can or should set aside a statutory demand based on an undisputed debt when faced with a cross-demand raised by a debtor.”

He went on to say that the essence of what the Bayoil case decided was accurately summarised in the head note, which he quoted as follows:

“Where a winding up petition was based on an undisputed debt but the company had a genuine and serious crossclaim, which it had been unable to litigate, exceeding the amount of the petitioner’s debt, the court would, in the absence of special circumstances, exercise its discretion by dismissing or staying the petition.”

Subject to one point he, as I say, accepted that a similar practice applied in bankruptcy; the one point being that he expressed some doubts about the part of Re Bayoil which appears in the headnote as the words “which it had been unable to litigate.” I was taken on a helpful tour of the authorities by Mr Chichester-Clark, who appears for Mr Hayes, which I am satisfied establishes that those words do not impose a pre-condition on the practice, but that the current position is best summarised in the Court of Appeal decision in Popley v Popley [2004] EWCA Civ 463 where Jonathan Parker LJ said at paragraphs 123 to 124 that

...

In the present case, of course, Mr Hayes is litigating the crossclaim. It is not something which has merely been put forward at the last moment in response to the petition.

Mr Registrar Jones held that there was a genuine and substantial dispute on the crossclaim, both as to liability and as to quantum. The quantum being put forward on the hearing before him was not the full £1 million odd set out in the schedule of loss, but was based on an Advice on Quantum from another barrister, Mr Neil Addison, dated 3 July 2012, privilege in which had been waived by Mr Hayes. Mr Addison’s advice was given on the basis of the allegations made by Mr Hayes, which included, as he said at paragraph 4 of his Advice, an allegation that there had been extensive interference with Mr Hayes’ private life, numerous contacts with regulatory authorities and the persons with whom Mr Hayes was attempting to do business, and a persistent situation where Mr Hayes was never able to put matters behind him and get on with his life. The harassment caused personal distress to Mr Hayes, both because of its direct effect on him and indirectly because of the effect it will have on his new wife, Margaret Hayes. It also made it difficult and indeed impossible for Mr Hayes to continue in his previous lucrative work within the computer and software industry. This was due to a number of factors: (1) the disruption caused to Mr Hayes’ ordinary life due to the need to respond to the amount of paperwork and enquiries generated by the activities of Mr Willoughby and Mr Butters and Mrs Hayes; (2) the fact that potential business partnerships or employment of Mr Hayes were prevented or severely hindered as a result of contacts by or allegations made by the defendants; and (3) the exacerbation and stimulation of Mr Hayes’ pre-existing medical and mental conditions, the details of which remained with the three defendants.

On the basis of those allegations, Mr Addison advised that Mr Hayes was, as a matter of law, entitled to damages as set out in his schedule. He, however, amended the figures to £728,000 odd in order that the figures put forward in the advice were conservative. He also advised in relation to joint and several liability as follows:

“One particular problem that a court, in assessing damages, will have is allocating them between the various parties. Whilst Mr Butters and Carol Hayes are joint tortfeasors, Mr Willoughby is not included as a party in the claim against them and they were not included as parties in the claim against Mr Willoughby.”

He then cited from the judgment in the claim against Mr Willoughby by His Honour Judge Maloney, who had said that he concluded that the parties cooperated particularly by pooling material, but that they generally acted independently of one another. He concluded that a court would treat Mr Butters and Mrs Hayes as joint tortfeasors jointly and severally liable for any award of damages made against them, but that it was more questionable whether Mr Willoughby would also be jointly liable. However, his overall conclusion in paragraph 12 was that the consequential losses could be claimed against all three defendants jointly and severally. In paragraph 13, when it came to the damages for injuries to feeling and the pre-existing psychiatric injury which was said to be exacerbated, he said that the damages would be payable severally. That is how I read his advice. He says:

“In view of the fact that Mr Willoughby’s campaign was separate to that of Mr Butters and Carol Hayes, I would assess this as £25,000 for Mr Willoughby and £25,000 jointly for Mr Butters and Carol Hayes, making a total damages award for injury to feelings of £50,000.”

Although Mr Willoughby has, in accordance with an order in the proceedings against him, paid £20,000 into court on account of damages, it is not suggested that he will discharge the entire liability himself.

Mr Chichester-Clark suggested that paragraph 13 of the Advice, which I have referred to, could be regarded as justifying the conclusion that Mr Hayes would have a joint and several claim for £50,000 in total against all three defendants, but that is not how I read the advice, which is, as I have said, that he would have several claims; one claim for £25,000 against Mr Willoughby, and another claim for £25,000 against Mr Butters and Mrs Hayes jointly.

Mr Wolman, who appears for Mrs Hayes, accepts that there is a genuine and substantial dispute as to liability. That means the only question is whether there is a genuine and substantial dispute as to quantum. Is this, in other words, a crossclaim which could realistically produce an award of damages exceeding the amount of the petition debt? Mr Registrar Jones held that it was. He did so firstly on the basis that Mr Wolman had made a concession to that effect saying in his judgment at paragraph 15(vii): “The petitioner, through Mr Wolman, concedes that if the strike out application succeeds there will be a crossclaim of £750,000.” (I will explain what the strike out application is in a moment) and then again at paragraph 20 says:

“The Concession was made without reservation. On its face it accepts ‘there will be’, and therefore, is ‘a cross-claim for £750,000’. That being so, it must lead to the conclusion that the Petition should be dismissed because there is a genuine and substantial dispute which extinguishes the petition debt or reduces it below £750. In my judgment, in the exercise of my discretion, it would be wrong to adjourn the Petition pending the outcome of litigation that is still far in the distance.”

Then he added at paragraph 21:

“I should add that the Concession was first made in the heat of argument. I was unhappy with that and gave Mr Wolman the opportunity to take instructions from his client outside the hearing room. He did so and it was confirmed.”

Mr Wolman says that his concession, which he does not deny making, was misunderstood. It was intended to be, and only be, a concession that it did not make any difference to his argument that there was pending an application to strike out the claims in the Watford County Court. I should briefly explain this: Mrs Hayes has recently procured the appointment of a trustee in bankruptcy in the 2005 bankruptcy of Mr Hayes, namely a Mr Stephen Grant. Mr Grant has brought an application in relation to the Watford proceedings, although it is in fact pending in the High Court, to strike out claims brought by Mr Hayes on the basis that the cause of action is vested in him as trustee. He relies on the principle exemplified by Ord v Upton [2000] Ch. 352 that although personal claims remain with the bankrupt, a hybrid claim which contains a claim in respect of property as well as a personal claim vests in the trustee and can be pursued by the trustee and not by the bankrupt. This application which is due to come before me in due course gives rise to a number of intricate issues; namely, whether a harassment claim is a hybrid claim within the Ord v Upton principle and how to accommodate the fact that the harassment complained of started before the 2005 bankruptcy, but has continued long after Mr Hayes’ discharge from that bankruptcy. That gives rise to difficult issues as to whether there is one cause of action or more than one cause of action and where that cause of action or causes of action resides.

I do not propose to express any views on that as although I had some argument on it, it was far from full and it is due to come before me in due course for full argument and, in any event, in the light of Mr Wolman’s concession it is unnecessary. I will proceed on the basis that it is accepted at this stage that the possible outcome of a strike out application does not mean that there is not a genuine and substantial crossclaim so far as liability is concerned.

Mr Wolman complains that Mr Registrar Jones misunderstood his concession, which was not intended to be a concession as to the genuineness or substance of the quantum claimed. It is fair to say that Mr Registrar Jones was alive to this possibility. In his judgment at paragraph 24 he said this:

“I have a concern over my understanding of the Concession insofar as it applies to the issue of quantum. Whilst there were no reservations, Mr Wolman did not expressly withdraw previous arguments concerning quantum. To avoid the risk of misunderstanding (but without withdrawing my conclusion at paragraph 20 above) [which I have already referred to] I will address his submissions.”

And then at paragraphs 25 to 31 he did address the question as to whether there was a genuine and substantial dispute as to the quantum of the crossclaim. In paragraph 31 he concluded that the concession was correctly made. He says:

“I consider it right to accept the evidence of counsel’s advice on the basis that it sustains a genuine and arguable case that the quantum will extinguish the petition debt. [He then goes on to say that it is not expert evidence, but a legal opinion.] In any event, these proceedings are concerned with establishing whether there is a genuine and substantial dispute. This is not a hearing to determine issues, but to identify that dispute. The advice does so.”

Mr Wolman makes a number of submissions in support of the appeal. The first is that he should have been permitted to cross-examine Mr Hayes in order to test the genuineness and substance of the crossclaim which Mr Hayes sought to advance. The registrar obviously found that a surprising application saying that the practice was not to allow cross-examination on the issue of whether there is a genuine and substantial dispute and saying “you know very well [this is to Mr Wolman] this court does not decide cases by way of cross-examination on the hearings of petition where the issue is whether there is a genuine and substantial dispute.” And then later: “It is unbelievably rare to have any cross-examination. We have these trials day in day out and we always do it on papers.”

Mr Wolman says that whatever the practice of Mr Registrar Jones or the other registrars may be, the position is that cross-examination should have been permitted. His argument proceeds as follows: (1) the Insolvency Rules in Part 7 do contain provisions as to the hearing of applications, but by Rule 7.1(c) Chapter 1 of Part 7 does not apply to a petition for a bankruptcy order; (2) that means that the general rule in Insolvency Rule 7.5.1(a) applies which by 7.5.1(a)(ii) imports the provisions of CPR in these terms: “Subject to paragraph 3, the provisions of the CPR, including any related practice direction not referred to in the table, apply to proceedings under the Act and Rules with any necessary modifications except so far as inconsistent with these rules;” (3) the hearing of the petition is a trial within the meaning of CPR 32.5 which reads as follows: “Use at trial of witness statements which have been served: 35.2(1) if (a) a party has served a witness statement; and (b) he wishes to rely at trial on the evidence of a witness who made the statement, he must call the witness to give oral evidence unless the court orders otherwise or he puts in his statement as hearsay evidence.” It does not expressly go on to say that where a witness is called to give oral evidence, the other party can cross-examine, but he says that that follows; and (4) therefore, the prima facie position is that oral evidence is to be called at the hearing of a petition and hence that cross-examination is available.

I do not accept this submission. It is clear that the practice in insolvency proceedings before the CPR was that questions as to whether the petition debt or a crossclaim was the subject of a genuine and serious dispute were to be decided without any cross-examination. One can see that clearly set out, for example, in the judgment of Robert Walker J in Moscow Savings Bank and the Russian Federation v Amadeus Trading Limited (unreported 26 March 1997) where he said at page 18 of the transcript:

“I cannot possibly adjudicate on that issue [that was an issue as to forgery] without both cross-examination and expert evidence from document examiners, neither of which is appropriate on the hearing of a winding up petition.”

That is supported by a case referred to by Robert Walker J at page 3 of the transcript, namely the Court of Appeal decision of Re Claybridge Shipping Company (9 March 1991) where Oliver LJ said:

“It is only too easy for an unwilling debtor to raise a cloud of objections on affidavit and then to claim that because a dispute of fact cannot be decided without cross-examination, the petition should not be heard at all and that the matter should be left to be examined in some other proceedings.”

That quotation from Oliver LJ’s judgment makes it perfectly plain that he pre-supposed that there would not be cross-examination on the hearing of a petition.

Since that was the pre-CPR practice I start with a strong reluctance to regard 7.51(a) of the Insolvency Rules as intended to change the practice, especially as the point appears to have gone hitherto unnoticed and be contrary to the current practice of the registrars. I do not propose to determine the question of construction, whether the hearing of the petition is technically a trial within the meaning of CPR 32.5 (a term that appears to be undefined in the CPR). It is noticeable that the Insolvency Rules themselves do not refer to a trial, but at paragraph 6.25 refer to the hearing of a petition. Part 6 of the Insolvency Rules sets out the practice required in relation to petitions for bankruptcy, and the only evidence which is necessary in support of the petition is the verification of the petition which is required by Rule 6.12. That means that the normal procedure envisaged by the Insolvency Rules does not envisage the petitioner appearing to give oral evidence to prove the debt and in all ordinary circumstances it is neither necessary nor the practice to do so. It follows that it cannot realistically have been envisaged by the Insolvency Rules that the ordinary hearing of a petition would routinely require oral evidence. This must, in my judgment, displace the CPR and mean that for the purposes of 7.51(a) (ii), CPR 32.5 is indeed inconsistent with the rules or is something that requires a necessary modification. So, whether or not the hearing of a petition is technically a trial, it is not one at which oral evidence is prima facie to be given. Now that does not mean that cross-examination may not be ordered, if appropriate, and Mr Wolman indeed showed me a case he had appeared in where that had been done. The insolvency court must have an inherent power to give directions for the hearing of the petition and it may be appropriate in certain cases to require cross-examination. That is something that should be determined by an application for directions rather than being dictated by the CPR.

In the present case it appears that Mrs Hayes did indeed apply for Mr Hayes to be cross-examined; see her application for directions of 22 June 2012, which included an application for an order for cross-examination of the debtor “because issues of fact cannot be established without hearing oral evidence.” However, the directions given by Deputy Registrar Garwood on 27 June 2012 require the filing of written evidence, but made no provision for oral evidence or cross-examination. That means that Mr Registrar Jones was, in my judgment, not wrong in starting from the position that it was for Mrs Hayes to persuade him to order cross-examination rather than, as Mr Wolman submitted, that the default position was one where oral evidence with cross-examination was prima facie available.

It follows that the only question remaining on this aspect of the appeal is whether Mr Registrar Jones exceeded the generous ambit of the discretion available to him in refusing to order cross-examination. In my judgment, he did not. Firstly, this is a case management decision which, on well established authority, is difficult to disturb on appeal. Secondly, the practice of the registrars is a matter which is much more within the knowledge of the registrars than of the judge hearing an appeal and a judge hearing an appeal should be slow to depart from what is said to be the regular practice of the registrars without very good reason. Thirdly, the whole basis of the practice in company winding up or bankruptcy is that the insolvency court is not generally a suitable forum for trying factual disputes. That is precisely why, if there is a real dispute, an order for winding up or bankruptcy will not be made. To allow cross-examination, as Mr Wolman sought, to test the genuineness of a crossclaim, would be likely, in practice, to just lead to every case where there was said to be a dispute as to the existence either of the petition debt or of the crossclaim, turning into a preliminary trial on the merits, but without the safeguards of disclosure and statements of case, et cetera, which are the normal practice when a court is resolving issues of fact. I cannot believe that that would be desirable. The Registrar said at paragraph 25 of his judgment, having referred to Mr Wolman’s application to be entitled to cross-examine the respondent in order to ascertain whether the quantum claims was genuine:

“I refused this. The starting point is that this court will not normally hear cross-examination because it is only deciding the question whether there is a genuine and substantial dispute not the dispute itself. This normally can and should be decided upon the written evidence because that evidence will provide the answer to that question. Cross-examination will not be allowed to trespass into evidence relevant to determining the dispute when the decision to be made is whether there is one.”

I agree and dismiss this ground of appeal.

The next point Mr Wolman made was that he submitted that the Registrar was wrong to conclude, in any event, that there was a genuine and substantial dispute as to quantum here. He pointed in his written argument to Greenacre Publishing Limited v Manson [2000] BCC 11 where Lloyd J said that the evidence before him at that stage was really rather unsatisfactory and went on to say:

“...I find myself unable to conclude at this stage that it is certain that, at the hearing of the petition, the court will conclude that there is a solid cross-claim of an amount sufficient either to extinguish the debt, or to reduce it below the insolvency limit.”

As the citation from that case shows that was not a hearing of the petition itself; it was a case of an injunction which was sought to be obtained before the hearing of the petition.

I do not think it necessary, for the purposes of this appeal, to embark on a survey of the authorities as to precisely what is involved in a genuine and substantial crossclaim. It is clear that on the one hand, the court does not need to be satisfied that there is a good claim or even that it is a claim which is prima facie likely to succeed. In Re Bayoil itself, Nourse LJ referred to what Harman LJ had said in Re LHF Wools Limited [1970] Ch 27 where Harman LJ, having referred to a previous case, said:

“The majority decided in that case that shadowy as the crossclaim was and improbable as the events said to support it seemed to be there was just enough to make the principle work, namely that it was right to have the matter tried out before the axe fell.”

On the other hand, the court should be alert to detect wholly spurious claims merely being put forward by an unwilling debtor to raise what has been called “a cloud of objections” as I referred to earlier.

The task of the court is not dissimilar to that that it is faced with on a summary judgment application under Part 24 as indeed has been said on a number of occasions, although it does not necessarily follow that the test is, in all the circumstances, identical. In the present case, I do not see that the precise formulation of the test is one that gives rise to any particular difficulty. The question for the registrar is whether he considered there was a genuine issue raised which needed to be decided at a trial rather than being capable of being dismissed at the hearing before him as having no real substance to it.

Mr Wolman said that it was not enough for the debtor to assert a claim or to point to a pleading asserting the claim; he had to give some real basis for it. He referred in this connection to Re Latreefers Inc. [1998] All ER 784 where Lloyd J said:

“To bring the Bayoil practice into play he has to show, on at least a prima facie basis, the substance of the cross-claims, which involves more than just pleading them.”

In that case, he held that that had not been done, but this is not a case in which the Registrar was faced simply with a bare assertion in a pleading. He did have evidence from Mr Hayes, who in his first witness statement, in opposition to the petition dated 17 July 2012, set out in some detail the claims that he was relying on and said, among other things, at paragraph 18:

“As a consequence of a campaign pursued by the petitioner, Mrs Hayes, and Mr Butters since 2003 which has thwarted my attempts to earn a living, I have reached the conclusion that I simply cannot pursue my business goals in any size, shape or form to enable me to earn a living until after the outcome of the harassment proceedings against them; this is on top of the extreme stress generated over many years of having to read abusive correspondence from the petitioner and Mr Butters, who plainly is acting on her behalf.”

He went back to it at paragraph 22.4 in which he said:

“The period of harassment, both by Willoughby and the Butters and Hayes case, covers an extremely long period, well over 10 years, during which time I have not been able to work without fear of being stalked. The harassment has also had a serious effect on my health completely disrupting my private and personal life to such an extent that I have been reduced to living off welfare benefits and fighting endless litigation year upon year seeking an end to this wholly unacceptable behaviour.”

I accept, therefore, that this is not a case where all that was before the Registrar was a bare assertion in the pleading. Mr Chichester-Clark referred me by way of analogy to the case of Re: A Debtor, (No. 544/SD/98), a decision of Jacob J, reported at [2001] BCLC 103 where on appeal, Robert Walker LJ, having said that the debtor’s own affidavit evidence “cannot be described as a detailed verification of his crossclaim against Lloyds,” went on to say the judge found that the debtor did have a genuine and serious claim and held the judge was entitled to come to those conclusions. He said:

“G’s crossclaim has not simply been pleaded, although the fact that the allegation of fraudulent misrepresentation appears in a pleading signed by leading and junior counsel is not without significance.”

And he then went on to deal with the particular matters in that case.

Mr Wolman next pointed to a number of factors which he said made Mr Hayes’ claim inherently implausible. First, there was the fact that such a large claim had not been put before Mrs Registrar Derrett on the application to set aside the statutory demand, and he referred to the inferences which should be drawn from delay in putting forward the crossclaim. They were summarised by Warren J in Southern Cross Group v Deka Immobilien [2005] BPIR 1010 and by Robert Walker LJ in Re. A Debtor (above) also reported as Garrow v The Society of Lloyd’s at [2000] CLC 241:- delay in putting forward a crossclaim may lead to an inference that it was not put forward in good faith, but only as a pretext in an attempt to stave off bankruptcy; however, there may be a satisfactory explanation for the delay.

As to that, there is an explanation given by Mr Hayes, namely that he did not have Mr Addison’s advice on quantum when he appeared before Mrs Registrar Derrett. He said in his witness statement, when asked in May 2011 what the value of quantum was likely to be in the Watford case:

“My only understanding was that it would be in respect of personal injury, anxiety, stress et cetera only, and then just a single amount in respect of both defendants, which I put forward as a figure in the order of £25,000.”

The fact that the claim had not been advanced before Mrs Registrar Derrett obviously gives rise to some questions, but does not of itself mean that there is not a genuine dispute as to whether there is now a claim for the financial loss which Mr Hayes relies on.

Mr Wolman next points to the fact that Mr Hayes himself relies, in his particulars of claim in the Watford County Court proceedings, on his impecuniosity in 1999 as a reason for not paying the petition debt. Mr Wolman submits that this is inconsistent with the claim that the campaign of harassment, which is only said to have started in 2003, caused his loss of income. This was a point which was dealt with by the Registrar, who said this in his judgment at paragraph 28:

“I find no inconsistency and certainly not one which justifies cross-examination. There is no dispute that the Respondent at one stage was a successful businessman financially (not least because of the allegations that he has hidden substantial offshore assets). All that is being said in the claim for quantum (and I make no comment upon the merits for trial) is that he could have returned to a high income had he not been the victim of the harassment he relies upon. That raises an issue to be decided at trial. It does not give cause for ordering cross-examination. In my judgment, in the exercise of my discretion, it would have been wrong to allow Mr Wolman to cross-examine in order to try to attack the quantum claimed.”

As is apparent from that quotation, that was said by him in the context of addressing the application for cross-examination, but his comment that it is a matter which is to be decided at trial applies also to the substantive question. The question of whether there is anything in the claim is, I agree, a matter for trial.

Mr Wolman said that psychiatric evidence was necessary to support Mr Hayes’ claim and there was none and relied on Mr Addison’s advice, paragraph 4 of which I have already read. I do not, however, read Mr Addison’s advice as being dependant on psychiatric evidence being available nor do I read Mr Hayes’ evidence as limited to that. Both the advice and the evidence proceed on the basis that one of the causes of the alleged loss of income and inability to work was the effect that the harassment had on Mr Hayes’ ability to run his life normally and his ability to do business with other people.

Mr Wolman then said that the suggestion that Mrs Hayes was jointly and severally liable for all the acts of Mr Butters, is one for which there was no basis. He points to the fact that of the acts which are specified in the schedule to the particulars of claim in the Watford County Court, the majority of them are said to have been carried out by Mr Butters and not by Mrs Hayes herself and that when Mr Hayes, in accordance with the order of the County Court, specified the 30 most egregious acts, only five of those were said to have been carried out by Mrs Hayes. On the other hand, the allegation is, as I have already read, that Mrs Hayes and Mr Butters embarked on a joint campaign and indeed, just looking at the schedule of facts relied upon, very many of the letters said to have been written by Mr Butters were said to have been written on behalf of Mrs Hayes. There is also the evidence which I have already referred to in Mr Hayes’ witness statement in paragraph 18 where he refers to Mr Butters as plainly acting on behalf of Mrs Hayes. In those circumstances, and where it does not seem to be disputed that Mrs Hayes and Mr Butters are living together as partners, it does not seem to me to be at all unrealistic for Mr Hayes to invite the Watford County Court to infer that the two defendants were acting in concert and should be jointly liable for each other’s acts. I have already referred to Mr Addison’s advice which plainly proceeds upon the same basis.

In the end, it seems to me it is a matter for the Registrar’s judgment whether the petition falls to be dismissed on the basis that there is a genuine and substantial dispute that cannot be resolved on the hearing of the petition and that requires to be determined at a trial. I do not consider that it is possible to disturb the assessment which the Registrar made that there was here such a dispute.

That leaves one further point which logically perhaps should have come first in the analysis, but is easier to deal with, as the Registrar did, at the end. Mr Wolman submits that Mr Hayes, having lost in his application to set aside the statutory demand before Mrs Registrar Derrett, should not have been allowed to have another go before Mr Registrar Jones on the hearing of the petition. There is a substantial body of authority on this point which I will refer to in chronological order and as briefly as I can as follows: Firstly, Vinelott J, in a case called Brillouett v Hachette Magazines (unreported, 24 June 1991) said:

“There may be rare cases in which it can be said that a debt claimed in a statutory demand against which there has been an unsuccessful attempt to set it aside and which has not been paid or secured or compounded for is not payable at the date of the petition, for instance, if as a result of legislation it were to become unenforceable between those two dates. But unless there is some change of circumstance of that kind it seems to me that all that the petitioning creditor is required to do is to show that he has made a statutory demand, that either no attempt has been made to set it aside or an unsuccessful attempt has been made, and that the amount of the debt has neither been paid nor secured nor compounded for. The debtor cannot go back and reargue the very grounds on which he unsuccessfully sought to have the statutory demand set aside."

Then in case called Re RS and M Engineering Company Limited [1999] 2 BCLC 485, Chadwick LJ said:

“It would, in my view, be inappropriate - save in the most exceptional circumstances - for a judge to exercise that power in order to substitute his own decision for that of another judge of co-ordinate jurisdiction reached on the same material after a full consideration of the arguments. The power to review is not to be used in order to hear an appeal against a judge of co-ordinate jurisdiction. The exercise of the power should be confined, as a matter of discretion, to cases in which there has been some change in circumstances (which may, perhaps, include the consideration of material which was not previously before the court) since the original order was made...”

I interpose to say it is not suggested in this case, nor could it be, that the particular principles set out by Vinelott J and Chadwick LJ apply directly. This is not a case in which Mr Registrar Jones has been invited to substitute his own decision for that of Mrs Registrar Derrett on the same materials. It is a case in which there clearly was new material before the court.

The next case is Turner v Royal Bank of Scotland 13 June 2000 in which Chadwick LJ (again) having referred to the Brillouett case, said:

“As Vinelott J pointed out in the Brillouett case, the debtor cannot go back and reargue the very grounds on which he unsuccessfully sought to have the statutory demand set aside. It will require some change of circumstance between the unsuccessful attempt to set aside the statutory demand and the hearing of the petition before the Court (on the hearing of the petition) can be asked to go into the question which has already been determined at the hearing of the statutory demand. To hold otherwise would be to encourage a waste of court time, and a waste of the parties' money; and would defeat the obvious purpose of the statutory scheme.”

Then at paragraph 50, he referred again to it being

“shown that there had been some real change of circumstances. In relation to the quantum of damage there had been no change in circumstances. At least, no change in circumstance has yet been identified.”

The next case is West Bromwich BS v Crammer [2002] EWCA Civ 1924 where Chadwick LJ again said, having referred to what he had said in the Turner case:

“Those observations were plainly obiter in that case; but will be given, no doubt, the weight which they deserve. But they do not have the effect of depriving a court exercising its functions under s 271 of the duty to decide whether or not to make a bankruptcy order on the material which is then before it. Plainly, a court will ask itself whether arguments that are being run before have already been run and failed; and it may go on to ask itself why arguments which have been run before it have not previously been run. But it is for that court to decide whether the conditions which must be satisfied before a bankruptcy order can be made are satisfied.”

There is then the decision of Neuberger LJ in Atherton v Ogunlende [2003] BPIR 21 where he said:

“It seems to me that the principle enshrined in the passage in the judgment of Vinelott J, approved by Chadwick LJ, and indeed his own judgment, in [Turner v RBS] indicates that the principle should not be abrogated simply because the party has found a better way of putting the same point or wants to put in more evidence to support the same point. If there were evidence from Mr Atherton as to specific facts which really would make a difference, and which he was unable to put forward on 11 March 1999 through no fault of his own (e.g. because it was then unavailable or unknown to him at that hearing) different considerations might apply. However, to my mind, there is nothing in the subsequent evidence which justifies my going against the normal rule as laid down in Turner.”

There was then Laddie’s J decision in Papanicola v Humphreys [2005] 2 All ER 418 where he set out a number of propositions, among which was that the circumstances relied on must involve a material difference to what was before the court which made the original order. In other words, there must be something new to justify the overturning of the original order.

Finally, in this run of cases there is Patten J’s decision in Ahmed v Mogul Eastern Foods 6 October 2005 in which, having set out a large number of previous cases, he said this at paragraph 23:

“Although there are references in these cases to what are described as exceptional circumstances, the essential point that emerges from these authorities is that if nothing has changed in the nature of the material before the court on the annulment or rescission application, then the court will not entertain it. The proper course in those circumstances is for the bankrupt to have appealed the original order. [I interpose to say, as appears from that, he was not dealing with the change of circumstances from an application to set aside the statutory demand to the hearing of the petition, but the analogous example of the bankruptcy order having been made and then an application being made to review or rescind or annul it] But if the court, on a consideration of the application, is satisfied that it has been presented with new material, which was not before the judge who made the bankruptcy order, and perhaps was not even available at that time, then in my judgment, the court is entitled to exercise its discretion and in appropriate cases, to decide to entertain the application and review the earlier decision.”

He then went on to say:

“For my own part, I would not wish to import into applications under s.282, a rule equivalent to that in Ladd v. Marshall. It seems to me that the correct approach in all cases is the one which was taken by Millett J in relation to applications under s.375 in his decision in Re A debtor [1993] 2 All ER 991 where he distinguished an application under s.371(1) from appeal and at page 995 said this.

‘Where an application is made to the original tribunal to review, rescind or vary an order of its own, however, the question is not whether the original order ought to have been made upon the material then before it but whether that order ought to remain in force in the light either of changed circumstances or in the light of fresh evidence, whether or not it might have been obtained at the time of the original hearing. The matter is one of discretion, and where the evidence might and should have been obtained at the original hearing that will be a factor for the court to take into account; but the rationale for the rule in Ladd v Marshall that there should be an end to litigation and that a litigant is not to be deprived of the fruits of a judgment except on substantial grounds has no bearing in the bankruptcy jurisdiction.’”

After that survey of the authorities it seems to me that they support the following propositions: Firstly, that if all that is involved is a re-run of exactly the same arguments on exactly the same material as before the court on an application to set aside a statutory demand, the court will not generally entertain the same material on the hearing of the petition. Secondly, if there is something new, whether that be something new in the form of evidence or something new in the form of arguments, some new material before the court, that is a matter which can and no doubt should be taken into account by the court. Thirdly, the strict application of the criteria in Ladd v Marshall do not apply, but the fact that matter was not put before the court on the previous occasion is something which the court can take into account in the exercise of its discretion.

I do not understand counsel to dissent violently from those propositions. This is not a case, as I say, in which exactly the same argument is being run again on the same material. It is a case where there plainly was new material before Mr Registrar Jones, namely the assertion that the harassment had not only caused Mr Hayes personal stress and anxiety for which he was entitled to claim damages up to £25,000, but the assertion that it has caused him financial loss and the advice he had had from Mr Addison that that was good in law and on his allegations, was worth £750,000. There was undoubtedly a question as to why that had not been put before the court at the earlier hearing. The answer that was given on behalf of Mr Hayes is that he did not then have the specific advice. That was accepted by Mr Registrar Jones, who said this at paragraph 53:

“The Respondent’s explanation for the change in quantum is that at the time of the decision of Registrar Derrett, he did not have access to the legal advice which he has subsequently obtained. I accept that taking into account his financial position and (without intending criticism) the difficulty of obtaining public assistance from the Legal Services Commission. It has been pointed out to me by Mr Wolman that the Respondent had legal representation at this stage. However, the legal advice to which I refer is the specific advice received after the decision of Registrar Derrett, namely the advice which produced the Schedule of Financial Loss and Counsel’s Advice.”

Mr Wolman says that that is not an adequate explanation. Mr Addison had, he says, acted for Mr Hayes previously and Mr Hayes had previously sought to include a claim for financial loss in the Watford County Court proceedings, which had indeed, at one stage, been struck out. Nevertheless the fact is that at the time of the appearance before Mrs Registrar Derrett, he did not have the specific advice which he had at the time of his later appearance before Mr Registrar Jones; that the claim which is now being pleaded and is supported by not only the counsel who pleaded it, but by advice from other counsel, is a claim which is now before the Watford County Court; and it appears that an attempt on the part of the defendants, Mr Butters and Mrs Hayes, to strike those allegations out in the County Court has been made, but has failed. That appears from the order of HHJ Davies, sitting then in the Luton County Court, on 21 December 2012, which provides that the appellant’s application to strike out certain of the items in the schedule of losses is dismissed on the basis that these matters are to resolved after the hearing of the issue on liability. An appeal from that to the High Court was itself refused permission by Proudman J, who refused permission on 11 February 2015 and indeed characterised the appeal as wholly without merit.

Mr Registrar Jones, at paragraph 54 of his judgment after having referred to the concession, said:

“The same conclusion is reached on the basis of my judgment above upon liability and quantum irrespective of the Concession. The conditions required by statute to be satisfied before a bankruptcy order may be made are not satisfied.”

That makes it unnecessary to resolve a further point taken by Mr Wolman, namely whether, for the purposes of considering whether the crossclaim overtops the claim, the quantum of the debt which is to be taken into account is the petition debt of some £52,000 which includes six years’ interest only, the balance being statute barred, or the judgment debt together with all interest from 2000 amounting to some £73,000 or £75,000. As the argument developed before me it appeared to be common ground that this turned on whether the petition debt and the crossclaim were merely crossclaims or were the subject of an equitable set-off; see TSB v Platts [1998] BPIR 284. The question whether two claims are the subject of an actual set-off or are merely crossclaims is itself one of some considerable difficulty and on which there are a number of authorities, and in circumstances where it makes no practical difference to the result I do not see any useful purpose in considering this question. It is also unnecessary to say anything about certain alternative grounds on which Mr Chichester-Clark sought to uphold Mr Registrar Jones’ order. I will dismiss the substantive appeal and hear the parties on the appeal against costs.

I now have to deal with the costs of the hearing before the Registrar. The Registrar gave a judgment on costs in which he considered the matters in some detail. He took into account the fact that the petition failed and was dismissed and that prima facie one starts from the position that the costs should follow the event. He also took into account, as a general principle, which can be derived from well known authorities, that a petitioner who pursues a petition to a hearing and fails on the basis that either the petition debt or a crossclaim is genuinely and substantially disputed, is at risk of being made to pay indemnity costs on the basis that it is a high risk strategy to proceed with a petition in the face of grounds of that type. On the other hand, he took account of the fact that at the time the petition was issued an application to set aside the statutory demand had failed and that prima facie, if an application to set aside a statutory demand has failed, a person is entitled to assume that the petition debt is one which is a good debt and a petition will issue as a matter of course. He did, however, consider that there came a stage during the proceedings in which the petitioner should have appreciated what was being said now on behalf of the respondent, namely that he had a very much larger crossclaim than that which had been advanced before Mrs Registrar Derrett.

In his judgment he deals with these matters in a great deal more detail than I propose to do so, but he concluded that the earliest date on which it could be said that the petitioner could have appreciated that the crossclaim’s value was to be substantially increased was 1 June after the schedule of loss had been served in the Watford proceedings, although the subsequent events were a statement from the debtor dated 17 July and he concluded that around the beginning of August 2012, the petitioner would have seen Mr Addison’s advice and then he was prepared to move that into September in order to allow time to consider counsel’s advice (on the basis that August is an unproductive time for lawyers) and that from then the petitioner could not really raise any argument that she was unaware of the full claim to be dealt with by way of a crossclaim.

In those circumstances, what one might have expected and what Mr Wolman suggests to me is really the only logical way of dealing with the costs is that the petitioner should have her costs and not be liable for the respondent’s costs up until whatever the appropriate date is, but from that date, would be at risk of paying indemnity costs and indemnity costs should be awarded to the respondent from that date. It seems to me, reading the Registrar’s judgment as a whole that he did have in mind those principles. His conclusion expressed at paragraph 14, after dealing with one or two other matters, was:

“It should be readily apparent that all those complications lead to the only sensible approach, namely to take a rather rough and ready decision with regard to balancing the justice between the two parties. It would take an enormous amount of disproportionate time and costs to review each item identified and treat it separately when determining the costs.

In those circumstances, the appropriate route is to order that the petitioner should pay the respondent’s costs, but on the standard basis.”

And then he dealt with another matter which is the court’s disapproval of the late filing by the respondent of the bundle for the hearing about which no complaint on either side is made.

I remind myself that I am not determining the costs for myself, but am deciding an appeal which is an appeal against a discretionary decision which can only be entertained if the court below has exceeded the generous ambit of the discretion available to it. Mr Wolman has confirmed that there were no steps to be taken in the proceedings, save for the issue of the petition and its verification, neither of which are expensive steps, until after receipt of the evidence from the respondent, and although he tells me that certain advice was given at the outset of the proceedings I cannot imagine that advice was very long or very complicated if it was to the effect that the application to set aside having failed, Mrs Hayes was in a position to present a petition.

It does seem to me that the Registrar was entitled, in the exercise of his discretion, to take what he called the rough and ready approach, which I understand to mean setting off the prima facie position that the respondent might have a claim for indemnity costs against the position that the petitioner might have a claim for costs of the very early stages of the petition, none of which were likely to be very expensive, and to take into account those factors and the other factors which he referred to by ordering the costs to be paid on a standard basis rather than an indemnity basis. Whether that is the order I would have made is irrelevant, as long as it is an order which it was open to the Registrar to make and, in my judgment, it was. I will therefore dismiss this appeal.

I shall order the costs of the appeal to be paid by the appellant to the respondent on the standard basis to be assessed if not agreed.