In ongoing litigation, often one party is ordered to pay some part of his/her opponent’s costs of the litigation.
If he/she fails to make the payment as ordered, some see it as unfair that the court will still allow them to continue to participate fully in the ongoing litigation. Instead, the court takes the view that separate enforcement steps should be taken (e.g. sending in bailiffs, seeking a charging order or pursuing insolvency proceedings against the defaulting party).
In a recent case, the court was encouraged to make payment of earlier (unpaid) costs orders a condition of one party being heard in any future hearings. In BVC –v- EWF [2019] His Honour Judge Parkes QC declined to make such an order, saying that the current state of the law had “not yet” reached the position where it was appropriate to do so.
Orders that prohibit one party from being heard until he/she has complied with earlier orders have been made many times in family/ divorce related proceedings. For example, in the divorce proceedings in Hadkinson v Hadkinson [1952] an order that one parent must return a child to the UK jurisdiction had to be complied with if that parent wanted to be heard at any future hearing.
However, this is an extreme and discretionary steps for the court to take. As the law stands at present, it is necessary to show that the breach of any earlier court order amounts to a contempt of court and also that there are no other realistic or effective ways to enforce that order.
