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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Barker v Fuller (t/a Strood Motor Co & Maingate Motor Co) [2001] EWCA Civ 1301 (20 July 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1301.html Cite as: [2001] EWCA Civ 1301

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR A STAY OF EXECUTION

		Royal Courts of Justice Strand London WC2 Friday, 20th July 2001

1. LORD JUSTICE MUMMERY: This is an application by the defendant in an action against whom judgment was given by His Honour Judge Russell-Vick QC on 3rd October 2000 for a stay of execution. The stay is sought in respect of an order for costs made by the Medway
2. County Court on 22nd May 2001 in which the costs which the defendant, Mr David Fuller, was ordered to pay were assessed at a total of £27,460.87. By the order of 27th May he was ordered to pay that sum to the claimant, Mr Anthony Barker, within 14 days of the order. The application for stay is limited to that sum because it appears that the judgment sum - which together with interest amounted to £56,861.24, £20,000 in court having been taken into account - was paid by Mr Fuller to Mr Barker by the beginning of March 2001. The judge had granted a 28-day stay when he had given judgment against Mr Fuller, but no application was made to extend that period. So that by the time when Mr Fuller had his hearing of his renewed application for permission to appeal on 7th March 2001 no stay was sought. The hearing, of which no transcript is at present available, was before Lord Justice Ward and Lord Justice Mance. They granted permission to appeal, but were not asked, either in the application form for permission or at the hearing for permission, to grant a stay in respect of the judgment or in respect of the costs.
3. The application notice was issued on 7th June and is supported by a short witness statement from Mr Fuller's solicitor. There is also a skeleton argument from Mr Leonard, who was Mr Fuller's counsel at the hearing. He is not available to argue the case today. His place has been taken by Mr Camp who, at short notice, has supplied a supplementary skeleton argument. According to Mr Morris's witness statement, the question of a stay of execution was mentioned towards the end of the hearing of the renewed application for permission. It was mentioned by Lord Justice Ward, who was informed by Mr Leonard that execution of the money judgment had already taken place as the original stay granted by the County Court judge had not been extended. He goes on to say:

"Unfortunately at the time no consideration was given to the cost order which had been made under the Judgment and as Counsel states in his skeleton argument in support of the current Application it was not appreciated that whilst the money Judgment had been satisfied there was an outstanding assessment of costs."

4. Mr Morris goes on to produce the assessment of 22nd May. He refers to correspondence, in which he asked for the agreement of Mr Barker's solicitors to a stay. They had not agreed. He is therefore fearful that Mr Barker's solicitors will press on to execute the judgment for the assessed costs.
5. The application is made under the Civil Procedure Rules 1998, Part 52.7 which provides:

"Unless -

(a) the appeal court of the lower court orders otherwise .....

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

6. Mr Camp made the point that the court should now adopt a different approach to applications for stay of execution than was previously the case. There is now under the rules a requirement for permission to appeal in practically every case. Permission is given only on the basis - which the court felt was justified in this case - that the appeal has a real prospect of success. He submits that, as the two Lords Justice have reached that decision, the judgment under appeal from Medway County Court is under question. In those circumstances it is appropriate to grant a stay. He says that on the facts of this case the stay on execution of the order for costs will preserve the status quo under which Mr Barker has already received the judgment sum. But, as there is a real prospect of the appeal succeeding, he says he should not yet receive the sum for costs.
7. He emphasised that, in view of this change in the regime for appeals, he was not required to establish that there were any special or exceptional circumstances for a stay, such as, for example, the inability of the successful claimant to repay the sums which had been paid in the event of Mr Fuller's appeal being successful.
8. Mr Whalan, for Mr Barker, is opposed to the stay. He reminds me that there is no automatic stay, as appears from Part 52.7. There is a discretion in the court. He goes on to submit that the principles under the old Rules of the Supreme Court still apply to the grant of a stay. The prime principle is that there must be a good reason for preventing a successful party from obtaining the fruits of his judgment. One must inquire are there special circumstances or good reasons for doing that, such as that the money paid may not be recoverable in the event of a successful appeal. He says there are no special circumstances here which would justify granting a stay against the application of the normal rule that there will be no stay. He has pointed to a number of features of the case in the judgment of the County Court judge. He pointed to the fact that the appeal is on a question of fact. It is well known that appeals on questions of fact are usually more difficult to succeed in than other kinds of appeal. He also relies on the fact that the judgment sum has been paid and no further application for stay was sought in respect of that. There was obviously, he says, no concern raised at that time about the ability of his client to repay, if the appeal was successful and no solid evidence to that effect now.
9. I expressed surprise during submissions that the costs expended in this case by both sides must now exceed the sum in dispute. I was given further explanation by Mr Whalan that there is more to this case than is apparent from the limited papers with which I have been supplied. He says that originally there was a default judgment claim, then protracted proceedings setting that aside and the trial itself, which was spread over five days, had unfortunately been interrupted by adjournments that commonly occur in County Courts when a cases goes on for more than a day or two.
10. I have considered all these submissions. I am in no doubt at the end of the day that this is not a case where I should grant a stay of execution. The case, as it seems to me, is really quite simple: that the application is made late in the day and not long before the appeal is due to be heard, because of an oversight in relation to the limited nature of the stay granted by the County Court judge. A stay was applied for and granted for 28 days, but no application was made for an extension. The sum was then paid. No application for extension was made in the application notice. The matter was not brought up before Lord Justice Ward and Lord Justice Mance.
11. It is a case where there had been an oversight at that hearing that yet more sums would become liable for payment when the costs were assessed. Mr Morris's witness statement does not, in my view, establish any grounds for applying other than the normal rule apparent from Part 52.7, that an appeal does not either operate as or itself require or justify the granting of a stay. I am not satisfied that this is an appropriate case for a stay. I refuse the application.
Order: Application refused