IF YOU WANT A STAY PENDING APPEAL MAKE FULL AND TOTAL DISCLOSURE

March 8, 2015 · by · in Appeals, Applications, Civil Procedure, Costs

In Goldsmith -v- O’Brien [2015] EWHC 510 (Ch) Judge Purle QC refused an application for a stay pending appeal. The case is an important reminder of the burden on a party seeking a stay pending appeal.

THE CASE

The claimant entered judgment in default for £325,000. An application to the Master to set aside judgment was made but was refused. The defendant was appealing that order and had made an application for permission to appeal. The defendant sought a stay pending appeal.

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THE JUDGMENT

  1. This is not a case where it is, in my judgment, appropriate to grant a stay and I decline to do so.
  2. CPR 52.7 provides:

“Unless —

(a) the appeal court … orders otherwise …

an appeal shall not operate as a stay of any order or decision of the lower court.”

  1. The Chancery Division of the High Court is, of course, the appropriate appeal route from Master Bragge’s decision. It is evident from that rule that it is for the appellant to persuade the court that a stay should be granted..
  2. It has been said in many cases that the usual order is to decline a stay, but there is no absolute rule The principles applicable under the CPR were set out in Hammond Suddard Solicitors v Agrichem as long ago as December 2001, [2002] CP Rep 21. Two matters of importance emerge from that decision. The first is in paragraph 12 where Clarke LJ said this amongst other things:

“In our judgment, the evidence in support of an application for a stay needs to be full, frank and clear.“

  1. Subsequently, in paragraph 21, he said this:

“By CPR 52.7, unless the appeal court or the lower court orders otherwise, an appeal does not operate as a stay of execution of the orders of the lower court. It follows that the court has a discretion whether or not to grant a stay. Whether the court should exercise its discretion to grant a stay will depend upon all the circumstances of the case, but the essential question is whether there is a risk of injustice to one or other or both parties if it grants or refuses a stay. In particular, if a stay is refused what are the risks of the appeal being stifled? If a stay is granted and the appeal fails, what are the risks that the respondent will be unable to enforce the judgment? On the other hand, if a stay is refused and the appeal succeeds, and the judgment is enforced in the meantime, what are the risks of the appellant being able to recover any monies paid from the respondent?”

  1. In my judgment, the “full, frank and clear” evidence referred to must go to the extent of the risks of injustice which the withholding of a stay would engage. That raises the same issues as are sometimes encapsulated in the requirement recorded in the text of the White Book that “solid grounds” have to be shown for a stay. I do not consider that the addition of the words “solid grounds” adds anything to or (as was submitted by Mr Power in argument) is inconsistent with the test set out by the Court of Appeal in the Hammond Suddard case. The phrase “solid grounds” is often used, and was recently endorsed by. Aikens LJ in Mahtani v Sippy [2013] EWCA Civ 1820 at paragraph 13. He there cited the earlier decision of Sullivan LJ in DEFRA v Downs [2009] EWCA Civ 257 at paragraphs 8 to 9, to the effect that a stay is the exception rather than the rule and that the “solid grounds” which an applicant must put forward are normally:

“… some form of irremediable harm if no stay is granted …”

  1. That, it seems to me, is entirely in line with what I have read from the Hammond Suddard case in paragraph 21.
  2. In my judgment, there is inadequate evidence in this case in support of the suggestion that the appeal will be stifled. It is said that the stifling will result from the bankruptcy that will now follow, it is assumed by Mr Goldsmith, though not explicitly threatened by Mr O’Brien, who has a charging order nisi on Mr Goldsmith’s home, and may prefer to proceed further down that route. Mr Goldsmith says he could only pay the judgment sum and accrued interest to date if he sold his property in Truro. He does not, however, give anything by way of detail of what his current income, business activities or assets are apart from his house. It may be said to be implicit in his statement that there is no other source of paying the judgment sum, but the statement needs to be explicit, or, in the words of the Court of Appeal, full, frank and clear.
  3. Without knowing Mr Goldsmith’s full means and assets I am unable to reach the conclusion that the appeal would be stifled. He has in the past come up with £325,000 to make this investment and has therefore had access to assets of substance. He does not say what attempts he has made, or might now make, in order to raise the monies from a third party. He is simply silent on the point. I am not going to assume that his silence means that he has no way of meeting the judgment sum. In any event, bankruptcy would not necessarily be an end of the litigation. It would then be for the trustee in bankruptcy, acting in the interests of the creditors, to decide whether to proceed and whether the appeal was worthwhile.
  4. In my judgment, it is wrong to approach cases of this sort upon the basis that insolvency will necessarily stifle the litigation, though it would, of course, have to be funded. As it happens, Mr Goldsmith, who, as I have said, says very little about his assets, is funding these proceedings in sums which, judged by costs statements, are not insubstantial. The court simply does not know how he is doing that, given the impecuniosity that it is asked to infer preventing payment of the judgment sums.
  5. In those circumstances it seems to me that Mr Goldsmith’s application does not really get off the ground and that there is no serious balancing exercise for me to carry out. Nonetheless, I should say in addition that no evidence has been put forward, other than a speculative plea, that if a stay is refused and the appeal succeeds, the risks of the appellant being unable to recover the judgment sum (if paid) will be significant. Of course there is always some risk that a substantial sum of money, such as the judgment sum with interest in this case, may prove difficult to recover, but if that were enough then there would be a stay in every case, which is clearly not the position.
  6. I also have to consider whether or not Mr O’Brien’s ability to enforce the judgment at the end of the day would be made more difficult if a stay is granted. I am not satisfied that that is the case. There is no evidence that Mr Goldsmith has been dissipating assets or is likely to do so hereafter. Moreover, on what I know, a charging order nisi has been granted over Mr Goldsmith’s home. Whether that has been made final or not, I am not sure. However it does not seem to me likely that serious prejudice to Mr O’Brien would result from the grant of a stay, but that is not a reason for departing from the default position. The onus is upon Mr Goldsmith to provide full, frank and clear evidence of the risk that he faces. He has not done so. Mr O’Brien, on the other hand, has had a default judgment for over two years and I do not consider that it would be right to prevent him from enforcing that pending the outstanding appeal. Accordingly, the application for a stay of that judgment is dismissed.
  7. There is also the £25,000 costs order where a stay is sought. My refusal of the stay extends to that order also. Despite Mr Power’s withering comments upon Master Bragge’s decision to award indemnity costs in relation to two of the hearings, one of which consisted of Mr O’Brien seeking specific discovery, I see no reason at this stage for departing from the reasoning of Rose J in paragraphs 6 and 7 of her written reasons for refusing a stay.

 

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